3.1 Victims of sexual offences

Once Schedule 2 of the Youth Justice and Criminal Evidence Act 1999 is brought into force, all restrictions on reporting matters relating to the identity of complainants in sexual offences will be contained in the Sexual Offences (Amendment) Act 1992 as amended.

These are automatic reporting restrictions, which only protect complainants. Anonymity provisions for defendants were repealed by the Criminal Justice Act 1988. The court has no specific powers to impose reporting restrictions under the Sexual (Offences) Acts 1976-1992, as amended, although it does have the power to dispense with the restrictions and the complainant him/herself can waive protection and give written consent to the publication of any otherwise prohibited identifying matter.

• Until the 1999 Act is brought into effect, two-tier, but automatic, prohibitions on identification apply to complainants of rape offences and other sexual offences. The law is set out for certain sexual offences other than rape offences in the Sexual Offences (Amendment) Act 1992 and, for rape offences, in the Sexual Offences (Amendment) Act 1976. (See Stone’s.)
• Until the 1999 Act comes into force, there are two levels of protection for complainants. First, when an allegation of a sexual offence is made, the alleged victim’s name, address, still or moving picture cannot be published, if it is likely to lead to his identification as an alleged victim of such an offence.

Clauses to be introduced by Youth Justice and Criminal Evidence Act 1999

Once the 1999 Act is in force, the 1992 Act as amended imposes a lifetime ban on reporting the identity of the alleged victim once an allegation that an offence has been committed is made and this continues after someone has been charged. The publication of names, addresses, identities of schools, educational establishments, workplaces and, indeed, still or moving pictures of the complainants are not banned per se. The restriction only applies insofar as publication of any of these particular matters is likely to lead members of the public to identify the individual as being the complainant of the alleged offence.

The offences to which this automatic restriction applies are set out in section 2 of the 1992 Act (as amended by section 48 and Schedule 2 of the 1999 Act) and include rape, indecent assault, indecency with children and the vast majority of other sexual offences.

Contravention of the reporting restrictions is a summary offence, punishable by a fine not exceeding level 5. The consent of the Attorney-General has to be obtained before proceedings can be instigated. Those liable include newspaper and periodical publishers, editors, proprietors; broadcast companies and staff with functions equivalent to editors; publishers of other publications.

Since the restriction is mandatory no order of the court is required even in the case of a child victim.

A person charged with a sexual offence covered by the restriction may apply to the court to direct that the restriction shall not apply, if such a direction is required to induce potential witnesses to come forward and the conduct of the defence is likely to be substantially prejudiced if no such direction is given.

The court can also direct that the prohibitions on identification do not apply if they would impose a substantial and unreasonable restriction upon the reporting of the proceedings at the trial, or of the proceedings during which the mode of trial has been decided, and it would be in the public interest to remove that restriction.

Without recourse to the court, the victim or alleged victim may agree in writing to the publication of material likely to lead to members of the public identifying him/her.

Such written consent is also a defence to any offence for contravention of the prohibition, with which the media may be charged, provided there has been no unreasonable interference with the peace and comfort of the person giving consent, with intent to obtain such a waiver, or that the complainant was not under 16 at the time consent was given.

Other defences available include that the accused did not know and had no reason to suspect that the publication included identifying material; or that the accused did not know and had no reason to suspect that an allegation of a prescribed offence had been made.

See also Section 6, GENERAL CONSIDERATIONS.

3.2 Indecent material calculated to injure public morals

Section 1 (1)(a) of the Judicial Proceedings (Regulation of Reports) Act 1926 prohibits the publication in relation to any judicial proceedings of any indecent matter or indecent medical, surgical or physiological details which would be calculated to injure public morals.

3.3 Pre-trial hearings: criminal proceedings

Committal proceedings

• Examining justices should sit in open court unless there is express statutory provision to the contrary and where the ends of justice would not be served by their doing so in respect of the whole or part of the proceedings – see above and section 4 of the Magistrates’ Courts Act 1980.
• Written statements, depositions and other documents admitted in evidence under sections 5A-E of the Magistrates’ Courts Act 1980 should be read aloud unless the court otherwise directs, in which case an oral account of the part of the statement not read aloud should be given, or the court commits the accused for trial without consideration of the evidence under section 6(2) of the Magistrates’ Courts Act 1980.
• On the day that a person is discharged or committed for trial, or the following day, the justices’ chief executive should ensure that a notice is displayed in the part of the court-house to which the public has access (in accordance with Section 6(5) Magistrates’ Courts Act 1980, as amended when the Access to Justice Act 1999 Sched.13 comes into force). This notice should contain the person’s name, address and age (if known), then, as appropriate, the offence with which he was charged and that the court has determined to discharge him, or charge(s) on which he has been committed and the court to which he has been committed .
• This provision is subject to section 4 of the Sexual Offences (Amendment) Act 1976 and so the notice should not identify complainants of sexual offences, in contravention of that section. The name and address of any under 17 year old should not be included in the notice unless the justices have stated that, but for this prohibition that information would have been included and (s)he should be mentioned in it for the purpose of avoiding injustice to the under 17 year old.
  Automatic restrictions apply to the reporting of committal and other proceedings relating to an information charging an indictable offence, before the court proceeds to inquire into the information as examining justices. The court should be slow to impose additional, discretionary reporting restrictions such as postponement orders under section 4(2) of the Contempt of Court Act 1981 (R v Beaconsfield Justices, ex p Westminster Press (1994), The Times 28 June; R v Horsham Justices ex p Farquharson [1982] 2 All ER 269 (see below).
• The accused should be informed of the automatic reporting restrictions and asked if he would like to make an application for their removal. If there are two or more accused, and one objects to the restrictions being lifted, then the court should only lift them after hearing the accused’s representations, if it is satisfied that it is in the interests of justice to do so. The order that grants such an application should be put in the court register and repeated at the beginning of any adjourned hearing. (Magistrates’ Courts Rules 1981, rule 5(1)). The media may publish that the court did or did not decide to lift reporting restrictions, but even if an order to lift the automatic restrictions on the committal proceedings is granted, this does not apply to the application hearing.
• Magistrates’ Courts Act 1980, section 8 If reporting restrictions are not lifted, the media can only report or broadcast:

  (a) the identity of the court and the names of the examining justices
  (b) the names, addresses and occupations of the parties and witnesses and ages of the accused and witnesses
  (c) the offence(s) or a summary of them with which the accused is charged
  (d) the names of the legal representatives engaged in the proceedings
  (e) any decision of the court to commit the accused or any of them for trial and any decision of the court on disposal of the case of any of the accused not committed
  (f) the charge(s) on which the accused, or any of them have been committed and the court to which they have been committed
  (g) the date and place to which committal proceedings have been adjourned, if adjourned
  (h) any arrangements as to bail on committal or adjournment
  (i) whether legal aid was granted (or, when the Access to Justice Act 1999 is in force, whether a right to representation funded by the Legal Services Commission as part of the Criminal Defence service was granted to the accused or any of the accused).

The automatic restrictions do not apply and so full reports of committal proceedings, containing more than these particulars, can be published:

(i) after the court has decided not to commit the accused, or any of the accused for trial;
(ii) after the conclusion of the accused’s trial or the trial of the last accused to be tried, if the court does commit the accused or any of the accused for trial;
(iii) as part of a report of a summary trial relating to an accused whom the court decides to try summarily (under section 25 (3) or (7) of the 1980 Act), while committing one or more of the other accused for trial, a report of so much of the committal proceedings as took place before its determination.

Offences relating to reporting restrictions on hearings by the Crown Court

Rulings at Pre-trial Hearings

• Automatic restrictions under section 41 and 42 of the Criminal Procedure and Investigation Act 1996 prevent reporting of all rulings made at Crown Court pre-trial hearings together with orders for discharge and variation of such rulings and application proceedings for rulings and orders.
• The restrictions apply until the trial of all defendants in the case has concluded. However, the restrictions can be lifted in whole or in part, provided that the court is satisfied, after hearing the representations of all the accused where any of them object, that it is in the interest of justice to do so. (If lifted, the reporting ban still applies to the accused’s objections and representations).
• Contravention of the restrictions is an offence punishable on summary conviction by a fine not exceeding level 5. Proceedings can only be instigated by or with the consent of the Attorney-General.

Preparatory Hearings

• Reporting restrictions are imposed in respect of preparatory hearings heard by a judge of the Crown Court and relevant appeals. Section 37 and 38 of the Criminal Procedure and Investigation Act 1996 provide for restrictions where the case is a long or complex and section 11 of the Criminal Justice Act 1987 makes provision in cases of serious fraud.
• The Crown Court, Court of Appeal and House of Lords can lift the restrictions in whole or in part, although, if any of the accused object, the court has to be satisfied that it is in the interests of justice to do so after hearing the representations of each accused. If the restrictions are lifted, the ban continues to apply to the accused’s objections to and representations against their lifting. Otherwise, the restrictions end on conclusion of the trial of the accused or the last of the accused to be tried.
• Until then, in Great Britain newspapers, periodicals, and broadcasters can only publish or include one or more of the following matters in their reports of the proceedings: the identity of the court and the name of the judge; the names, ages, home addresses and occupations of the accused and witnesses; the offence or offences with which the accused is or are charged or a summary of them; the names of counsel and solicitors in the proceedings; where the proceedings are adjourned, the date and place to which they are adjourned; any arrangements as to bail; whether legal aid was granted to the accused or any of the accused. In serious fraud cases, relevant business information may also be given including the name and address of any business which the accused was carrying on, on his own account; name and address of any firm of which he was a partner or by which he was engaged; name, registered or principal office, or working address of the accused, of any company of which he was a director, or by which he was otherwise engaged at the relevant time.
• The addresses that may be published or included in a relevant programme are addresses at any relevant time, and at the time of their publication or inclusion in a relevant programme; “relevant time” here means a time when events giving rise to the charges to which the proceedings relate occurred.
• Contravention of the reporting restrictions on preparatory hearings are punishable on summary conviction by a fine not exceeding level 5. Prosecution proceedings can only be instigated by or with the Attorney-General’s consent.

Proceedings to dismiss where there has been no committal

• Similar restrictions apply to successful applications for dismissal in cases for trial in the Crown Court where there have been no committal proceedings. These cover serious fraud cases (s. 11 Criminal Justice Act 1987); charges alleging sexual offences or offences involving violence or cruelty against children (s. 53; Sched. 6 para. 6 Criminal Justice Act 1991); and indictable only cases automatically sent for trial (Sched. 3 paragraph 3 of the Crime and Disorder Act 1998).