3.5 Civil Proceedings, family proceedings

The media is permitted to attend and report domestic and family proceedings heard by the Magistrates’ Courts, subject to some restrictions. Press access to family proceedings Section 65(1) and (2) of the Magistrates’ Courts Act 1980 set out the proceedings under various enactments which are considered to be family proceedings for the purposes of that Act. Section 69 governs media access to family proceedings

• With the exception of adoption proceedings (see below), representatives of newspapers and news agencies are entitled to attend hearings and determinations of family proceedings, alongside officers of the court, parties, legal representatives, witnesses and others directly concerned with the case. The court also has discretion to allow others to attend – but must give permission to attend to anyone who has adequate grounds.
• Access to proceedings under the Adoption Act 1976 is more restricted. Press representatives have no right to attend adoption proceedings and the court cannot give permission for anyone to attend who is not an officer of the court, or one of the parties, lawyers, witnesses or other person directly involved in the proceedings.
• The press can be excluded during the taking of any indecent evidence if the court considers it necessary in the interest of the administration of justice or of public decency (section 69(4) of the Magistrates’ Courts Act 1980).
• The Magistrates’ Court retains any other powers to hear proceedings in camera in addition to and without prejudice to the statutory provisions.
• Section 144 of the Magistrates’ Courts Act 1980 enables rules to be made which enable the Magistrates’ Courts to sit in private. The Family Proceedings Courts (Children Act 1989) Rules 1991 enable magistrates to sit in private in proceedings in which any powers under the Children Act 1989 may be exercised. However this power can only be exercised if expedient in the interests of the child concerned in the particular proceedings. Magistrates may not adopt private sittings as a general policy. Even if the court does sit in private, the press need not be excluded – the court can specify ‘other persons’ who may attend in addition to the officers of the court, the parties and their lawyers (rule 16).

Automatic restrictions on reporting family proceedings before the Magistrates’ Court

Section 71 of the Magistrates’ Courts Act 1980 sets out the reporting restrictions which automatically apply to family proceedings and adoption proceedings. The Judicial Proceedings (Regulation of Reports) Act 1926 contains automatic restrictions, which limit reports of divorce and related proceedings. Children enjoy additional protection against identification in connection with the court proceedings under section 97(2) of the Children Act 1989 if the Magistrates’ Court might exercise any power under the Children Act 1989 with respect to them or any other child.

Restrictions on reporting domestic proceedings

• Under section 71 of the Magistrates’ Courts Act 1980 newspapers, periodicals and broadcasters can only lawfully print, publish or include in programme services (or cause or procure such publication) the following particulars:

• Tighter restrictions apply to proceedings under the Adoption Act 1976 and identification of children potentially subject to the exercise by the court of powers under the Children Act 1989.
• In respect of adoption proceedings, (i) and (ii) do not apply, so reports must be confined to submissions, the court’s decisions and accompanying observations.

Particulars of the proceedings which should not be reported under section 97(2) of the Children Act 1989 include the name, age, address or school, any picture or other particular calculated to lead to the identification of any child as being involved in any proceedings before the Magistrates’ Court in which any power under the Children Act 1989 may be exercised in relation to that or any other child. This protects children involved in various family proceedings, not just those specifically brought under the Children Act 1989. Section 8(4) and (5) define these proceedings. The protection is confined to under 18 year olds (section 105) aside from exceptions which also protect 18 year olds, which are set out in Schedule1 para 2 and 6 relating to some orders for financial relief and periodical payments.

• The reporting restrictions under section 71 do not apply to reports appearing in newspapers and periodicals of a technical character which are bona fide intended for circulation to members of the legal or medical professions.
• Contravention of section 71 is a summary offence, punishable by a level 4 fine. However the Attorney- General’s consent is required to begin any prosecution.
• Contravention of section 97(2) is also an offence punishable by a level 4 fine on summary conviction. It is a defence for the accused to prove that he did not know and had no reason to suspect that the published material was intended or likely to identify the child.
• The court, or the Lord Chancellor, can lift the reporting restrictions if satisfied that the welfare of the child requires it.

Reporting of proceedings held in private: contempt

The Administration of Justice Act 1960 section 12 relates to the operation of the law of contempt in respect of proceedings held in private and brought under the Children Act 1989 or otherwise related wholly or mainly to the maintenance or upbringing of a minor.

In the absence of any other reporting restriction, it is permissible to publish the date, time and place of the hearing and the order made by the court. If other material actually relating to the proceedings is published, the question of contempt would be at issue, in the absence of any defence recognised by law.

There is no automatic ban on publication of any other matter relating to the child- only upon the report of the proceedings.

Reporting of proceedings for divorce, nullity and related matters

Section 1 of the Judicial Proceedings (Regulation of Reports) Act 1926 regulates reporting of divorces and related proceedings).

• Section 1(a) prohibits the publication or printing, or causing or procuring such actions, in relation to any judicial proceedings of any indecent matter, or indecent medical, surgical or physiological details the publication of which would be calculated to injure public morals (subject to certain exceptions).
• Section 1(b) places automatic reporting restrictions on coverage of judicial proceedings for dissolution and nullity of marriages, judicial separation and restitution of conjugal rights. See also extension to proceedings under Part II of the Family Law Act 1996 or otherwise (when in force). Only the following matters may be lawfully printed or published, or caused or procured to be printed or published:

i) the names, addresses and occupations of the parties and witnesses
ii) a concise statement of the charges, defences and counter-charges in support of which evidence has been given
iii) submissions on any point of law arising in the course of the proceedings and the decision of the court thereon
iv) the summing up of the judge and the finding of the jury (if any) and the judgment of the court and observations made by the judge in giving judgment.

• These prohibitions do not apply to printing of pleadings, transcripts of evidence or other documents for use in connection with the judicial proceedings or communication of such material to people concerned in them; nor to printing or publishing any notice or report in pursuance of the court’s directions, nor to the printing and publishing of any volume or bona fide series of law reports, which are not part of any other publication and consist solely of reports of court proceedings, or any other publication of a technical character bona fide intended for circulation amongst members of the legal or medical profession.
• Contravention of the prohibition is a summary offence punishable by level 5 fine or imprisonment for a term up to four months. Proprietors, publishers, editors and master printers are liable to prosecution, but the Attorney-General’s consent is required to sanction prosecution.

3.6 Anti-Social Behaviour Orders

Applications for anti-social behaviour orders (ASBO) pursuant to section 1 of the Crime and Disorder Act 1998 are civil proceedings (R (McCann) v Crown Court at Manchester CA [2001] 1 WLR 1084; B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340). Since the Youth Court has no civil jurisdiction, all such applications will be heard by the Magistrates’ Court. The Magistrates’ Court is open to the general public; no automatic restrictions will apply to prevent public and press access or to prevent reporting of the proceedings or to protect the identity of any adult or juvenile who are defendants as the subject of an application (see 1 and 2 above).

The court would have to have good reason, aside from age alone, to impose any discretionary order under section 39 of the Children and Young Persons Act 1933 to prevent the identification of any child or young person concerned in the proceedings (see 4.1b below and R v Lee (1993) 96 Cr App R 188 applied by the Divisional Court in R v Central Criminal Court ex p W, B and C [2001] Cr App R 2).

Although any request for reporting restrictions to be imposed is for the court to decide, the applicant may resist a call from the defendant’s representatives for such restrictions if the effectiveness of the ASBO will largely depend on a wider community knowing the details. Given the nature of the proceedings, i.e. that the under 18 year old is being accused of anti-social behaviour in the community, it is in the community interest that any order will be enforced in order to protect the community. Unless the nuisance is extremely localised, enforcement of the order will normally depend upon the general public being aware of the order and of the identity of the person against whom it is made.

Effective enforcement may require the publication of photographs of the subjects, as well as their names and addresses. The magistrates dealing with a youth in ASBO proceedings may be called upon to balance the interests of the community with that of the young person against whom the order has been made.

Breach of an ASBO without reasonable excuse is an offence, punishable on conviction on indictment with five years’ imprisonment and/or fine and on summary conviction by six months’ imprisonment and/or fine up to the statutory maximum. Again, no automatic restrictions upon press and public access or upon media reporting will apply to criminal proceedings before the Magistrates’ Court (or the Crown Court). There would have to be good reason to impose any restrictions to prevent media reports’ identification of any under 18 year old involved in the proceedings under section 39 of the Children and Young Persons Act 1933 or its replacement, section 45 of the Youth Justice and Criminal Evidence Act 1999, when in force (see above and 4.1b below).

If the defendant is under 18 and is the subject of criminal proceedings before the Youth Court for the alleged breach of an ASBO, then the automatic restrictions upon public, but not press, access to the proceedings and upon identification of the alleged offender will apply. The press will have the right to attend the proceedings under section 47 of the Children and Young Persons Act 1933 and the right to report the proceedings, subject to the automatic restrictions upon identification of the under 18 year old involved under section 49 of the Children and Young Persons Act 1933. As outlined above at 3.4 and in the two Home Office/Lord Chancellor’s Department’s publications, Circular 1998, Opening Up the Youth Court and Youth Court 2001 – The Changing Culture of the Youth Court: Good Practice Guide, the Youth Court has the discretion to admit the public and to lift the automatic reporting restrictions. The joint publications suggest relevant considerations.

The High Court in McKerry v Teesdale and Wear Justice [2001 Crim.L.R 594] considered factors to be taken into account by youth courts in lifting section 49 restrictions. (Note that this case did not directly relate to imposition of discretionary restrictions under section 39 and the Court was not referred to the Court of Appeal’s judgment in R v Lee – McKerry was considered but not followed by the Divisional Court in R v Central Crown Court ex p W, B and C [2001] Cr App R 2 which re-emphasised Parliament’s distinction between treatment of juveniles appearing in youth courts and juveniles appearing in adult courts.)

The factors included the great care, caution and circumspection which had to be exercised, the need for the statutory public interest test to be satisfied; the background of international law and practice, including the competing principles of articles 8 and 10 of the European Convention on Human Rights, and the collision between the hallowed principle that justice was administered in public, open to full and fair reporting of court proceedings so that the public might be informed about the justice administered in their name and the important principle of protection of juveniles’ privacy in legal proceedings, great weight being given to their welfare; inappropriateness of dispensing with a juvenile’s prima facie right to privacy as an additional punishment.

The High Court also made clear that there was nothing to preclude the justices from hearing a representative of the press either orally or in writing on whether reporting restrictions should be lifted and that could be a valuable process since the reporter might well have a legitimate point to make and one which would save the court from falling into error.

4. Discretionary reporting restrictions

The Magistrates’ Court has power in appropriate cases to impose temporary or permanent restrictions on the media’s reports. In general, the authorities stress the paramount importance of the open justice principle, the exceptional nature of any restrictions and the criteria safeguarding that principle which must be satisfied before any such reporting restriction can be imposed.

Courts may need to consider the interaction of statutory provisions with common law powers and Articles 6 and 10 of the European Convention on Human Rights, particularly the need to give reasons so that those subject to a restriction know where they stand and whether to appeal.

4.1 Protection of young persons and adult witnesses

The Youth Justice and Criminal Evidence Act 1999 (when in force) provides for revised restrictions on the reporting of the identity of young persons involved in criminal proceedings and a new power to restrict reporting in respect of certain adult witnesses.

1. Persons under the age of 18

a) Pre-commencement of criminal proceedings

Currently, there are neither automatic nor discretionary reporting restrictions on children subject to criminal investigation pending the commencement of court proceedings. The media’s self-regulatory and other codes do give particular protection to school age children.

However, section 44 of the 1999 Act (if brought into force in full) would automatically prevent the reporting of any matter which might lead the public to identify a person under the age of 18 as a potential defendant, victim or witness as soon as a criminal investigation has begun (as defined in the Act).

Any prohibition brought in under this section will only apply to a person by whom the alleged offence is alleged to have been committed.

• There is no automatic prohibition on publishing the youth’s name, address, identity of school or other educational establishment, workplace or still or moving picture per se. The section is only contravened if the inclusion is likely to lead to members of the public identifying that young person as a person involved in the offence.
• The automatic restriction only lasts until criminal proceedings begin.
• Any criminal court, including a single justice, may dispense with the restrictions to any extent that it specifies if satisfied that it is necessary in the interests of justice to do so and the court has had regard to the welfare of the young person. There is a right of appeal to the Crown Court, which can be exercised by anyone who was a party to the application to lift the restrictions, or by anyone to whom the court gives leave.
• Contravention of the prohibition on identification under section 44 is an offence, punishable on summary conviction by, at maximum, a level 5 fine. The Attorney-General’s consent is required to instigate proceedings.
• Defences include absence of awareness or suspicion or reason to suspect that the publication included the identifying matter, or that a criminal investigation had begun.
• If the offences relating to non-identification of victims and witnesses are ever brought into force, the Act contains defences for publication in the public interest, as defined, or where written consent to the publication of the identifying matter has been given by the young person or an appropriate adult on their behalf without unreasonable interference (save for witnesses of alleged sexual offences, aged under 16).

b) Proceedings in the Magistrates’ Court

• The Magistrates’ Courts’ power to impose discretionary reporting restrictions in respect of under 18 year olds involved in criminal and civil proceedings is currently contained in section 39 of the Children and Young Persons Act 1933. When the Youth Justice and Criminal Evidence Act 1999 Act comes into force, section 39 will apply only to civil proceedings (but see automatic reporting restrictions at 3.5 above). Criminal courts will have a new power under section 45 of the 1999 Act. The application of both powers is described below.
• Under section 39 of the Children and Young Persons Act 1933, any court can direct that media reports should not, except insofar (if at all) specified by the court, reveal the name, address, or school, or include any particulars calculated to lead to the identification of any child or young person concerned in the proceedings, either as being the person by or in respect of whom the proceedings are being taken or as being a witness therein. No picture of the subject of the order may be published.
• Contravention of the prohibition on publication is a summary offence, punishable on conviction by a maximum fine not exceeding level 5.
• The court has the discretion to hear media representations on whether it should make or lift a section 39 order. Courts have discretion to hear reporters in person, as well as their legal representatives. Indeed, many courts have formally reconsidered orders or purported restrictions after media representations by letter or discussion with the clerk to the justices.
• There must be good reason to make a section 39 order. There is a clear distinction between the automatic ban on identification of children involved in youth court proceedings under section 49 and the discretion to impose an order under section 39 of the 1933 Act. R v Lee [1993] 1 WLR 103, R v Central Criminal Court ex parte W, B and C [2001] Cr App R 2. Age alone is insufficient to justify the order. Courts have accepted that very young children cannot be harmed by publicity of which they will be unaware and therefore section 39 orders are unnecessary. Orders cannot be made in respect of dead children. Naming a young offender who has been convicted might act as a deterrent to others or the public might wish to know the outcome of the trial in serious cases.
• The order must be restricted to the terms of section 39. The court cannot ban the naming of any adult, nor make any order relating to any child or young person who is not involved in the proceedings. The court can give guidance on the practical effect of the order and what, in its view, might and might not be caught by the order. However, this can only be guidance, which is not binding on the media. (See Section 6 below, GENERAL CONSIDERATIONS, concerning the practical approach adopted by the media which enable cases to be fairly and accurately reported without harmful publicity to young people involved in court proceedings.)
• If a reporting restriction is imposed, the justices must make it clear in court that a formal order has been made. The order should use the words of section 39 and identify the child or children involved with clarity. A written copy should be drawn up as soon as possible after the order has been made orally. Copies must be made available for media inspection and communicated to those not present when the order was made (e.g. by inclusion in the daily list). Court staff should assist media inquiries relating to the order.
• The order only applies to the proceedings in the court by which it was made, but is not limited as to time. (See Section 6 below, GENERAL CONSIDERATIONS.)
• Section 45 of the 1999 Act, when brought into force, gives a power to the court to give a direction restricting the reporting of any matter which might lead to the identification of a person under the age of 18 as a defendant, victim or witness in criminal proceedings.
• This power does not apply to Youth Court or any related proceedings where the automatic reporting restrictions imposed by section 49 of the Children and Young Persons Act 1933, as amended by the 1999 Act apply (for current provisions of section 49 see above).

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