3.5 Civil preceedings, family proceedings

• In contrast to the investigation stage, this power is not automatic but at the discretion of the court. The power should not be exercised as a matter of routine but the court should balance the general requirement for open justice with the need to protect young people involved in the proceedings.
• The court is required by subsection 6 to have regard to the welfare of the young person.
• Again, publication of the young person’s name, address, school or other educational establishment, workplace or still or moving picture would not in itself be prohibited – the section would only be contravened if the inclusion of such a particular in the publication is likely to lead to the identification of the under 18 year old concerned.
• The restriction can only be made under this section until the person reaches the age of 18.
• The court, or appellate court may at the time of giving a reporting restriction direction, or subsequently qualify the direction to any extent by “an excepting direction” if either it is necessary in the interests of justice, or the effect of the direction is to impose a substantial and unreasonable restriction on the reporting of proceedings and it is in the public interest to remove or relax the restriction. [The public interest element is dealt with below at (3)].
• There is no power to impose restrictions to prevent the identification of children other than the defendant, a victim or a witness, e.g. the siblings of the defendant or a victim. Nor is there power to impose restrictions to prevent the identification of adults involved in the proceedings e.g. as defendants charged with or witnesses of offences against their own children or witnessed by their children.
• Under section 39 of the Children and Young Persons Act 1933, it was held that there was no power to make an order to prevent identification of a deceased child. This would appear to apply equally under the new law, in respect of orders under Section 45 of the Youth Justice and Criminal Evidence Act 1999 (yet to come into force).
• In a number of cases at first instance, (relating to section 39 of the 1933 Act) the court has considered that it is a very relevant consideration that a child victim was a baby or very young so that any adverse publicity was likely to have been a thing of the past before the child would even be aware of it.
• Guidance under the old law as to whether a reporting restriction prohibiting a young defendant from being identified should be lifted where an appeal is proposed was given by the Court of Appeal in R v Manchester Crown Court ex parte H and D [2000] 1Cr. App. R. 262.
• Breach of section 45 is an offence, punishable on summary conviction by (at maximum) level 5 fine. Instigation of proceedings requires the consent of the Attorney-General. Those liable to conviction include the proprietors, publishers and editors of newspapers and periodicals; broadcasting companies and those performing functions equivalent to print media editors; and publishers of other publications.
• (For decisions relating to the application of section 39 of the Children and Young Persons Act 1933 in criminal proceedings, see Stone’s.)

2. Adult Witnesses

• Section 46 of the Youth Justice and Criminal Evidence Act 1999 gives the court power to restrict reporting about certain adult witnesses (other than the accused) in criminal proceedings on the application of any party to those proceedings.
• The Court may make a reporting direction that no matter relating to the witness shall during his lifetime be included in a publication if it is likely to lead members of the public to identify him as being a witness in the proceedings. Again, publication of the name, address, educational establishment, workplace or a still or moving picture of the witness is not of itself an offence, unless its inclusion is likely to lead to his identification as a witness by the public.
• An adult witness is eligible for protection if the quality of his evidence or his co-operation with the preparation of the case is likely to be diminished by reason of fear or distress in connection with identification by the public as a witness. Quality of evidence relates to its quality in terms of completeness, coherence and accuracy. (Coherence is further defined- it refers to the witness’s ability in giving answers which address the questions put to him or her, which can be understood both individually and collectively).
• The court may make a reporting restriction direction in respect of such a person if the making of such an order is likely to improve the quality of the evidence of the witness or his co-operation in the preparation.

• The court must have regard to:

  i. The nature and circumstances of the offence;
  ii. The age of the witness;
  iii. The social and cultural background of the witness and his ethnic origin, if relevant;
  iv. The domestic and employment circumstances of the witness, if relevant;
  v. Any religious beliefs or political opinions of the witness, if relevant;
  vi. Any behaviour towards the witness by the defendant, his family or associates or anyone likely to be a witness or defendant in the proceedings. Any behaviour towards the witness by the defendant, his family or associates or anyone likely to be a witness or defendant in the proceedings.
  vii. Any views expressed by the witness.

• The court must also consider whether the making of a reporting direction would be in the interests of justice and consider the public interest in avoiding the imposition of a substantial and unreasonable restriction on the reporting of proceedings.
• Strangely it does not seem possible to give a reporting restriction order under section 45 in respect of a witness under 18 that will last beyond his 18th birthday even in a case where the court would make a lifetime direction in relation to an adult under section 46.
• “Excepting directions” can be given and the directions may be revoked or varied at any stage either by the court or an appellate court, under similar provisions relating to those under 18. The court may dispense with the restrictions imposed by the reporting direction, to any extent that it specifies in the excepting direction. It has to be satisfied either that it is in the interests of justice to do so or that the effect of the restrictions is to impose a substantial and unreasonable restriction on the reporting of the proceedings and it is in the public interest to remove or relax that restriction. (The fact that the proceedings had been determined in any way or had been abandoned would not in itself be sufficient reason to dispense with the reporting restrictions imposed.) The subject of a reporting direction under section 46 can consent to the inclusion in the publication of any identifying matter otherwise prohibited and written consent is a defence to any prosecution for breach of the order. To be effective, the consent must have been obtained without interference of the peace and comfort of the person giving the consent on behalf of the protected of person or the protected person himself with intent to obtain the consent.

3. General Considerations in Relation to Persons Under 18 and Adult Witnesses under the Youth Justice and Criminal Evidence Act 1999 Restrictions

• Breach of reporting directions is a summary offence under section 49 of the 1999 Act. Prosecution requires the consent of the Attorney-General. Statutory defences are provided under section 50(1) that the person charged was not aware, and neither suspected nor had reason to suspect, that the publication included the matter or report in question; or, under section 50(2), that a criminal investigation had begun. Written consent is also a defence to publication of identifying material contrary to a reporting direction under section 46.
• If the section 44 prohibitions on identification of under 18 year old victims and witnesses are brought into effect, then additional defences are provided by section 50(2)-50(11) including: publication in the public interest (does not apply to witnesses of sexual offences) if the effect was to impose a substantial and unreasonable restriction on the reporting of matters connected with that offence; written consent by a 16 or 17 year old; or written consent by another appropriate person on their behalf, if under 16, after written notice had drawn his attention to the need to consider the under 16 year old’s welfare and the consent was not subsequently withdrawn.
• A restriction direction prevents publication of any matter leading to identification but specifically name and address, any school or educational establishment attended, place of work and photographs (still or moving) if they are likely to lead members of the public to identify the person as having been involved in the offence.
• In determining whether something is or was in the public interest, the court must have regard to the interest in the open reporting of crime, the open reporting of matters relating to human health or safety and the prevention and exposure of miscarriages of justice, as well as to the welfare of the person in relation to whom the restriction would apply, and any views expressed by that person, if aged 16 or over, or if aged under 16 years old, by an ‘appropriate person’ on his behalf (see sections 50 or 52).
• The provisions of sections 45 and 46 of the Act do not apply to proceedings commenced before the coming into force of the sections.
• Section 47 of the 1999 Act prohibits the reporting of special measures directions under section 19 and directions which prohibit the accused from conducting cross-examination. The automatic ban applies during the trial, but the court may order that the restrictions do not apply in whole or in part. The ban ends on determination (by acquittal, conviction or otherwise) or abandonment of the proceedings in relation to the accused or each of them.

4.2 Names and other matters withheld in court (Civil and Criminal Proceedings)

• Under section 11 of the Contempt of Court Act 1981, in any case where a court (having the power to do so) allows a name or other matter to be withheld from the public in proceedings before it, it may give such directions prohibiting the publication of the name or other matter in connection with the proceedings, as appear to be necessary for the purpose for which it was withheld.
• The court must have, at common law, the power to depart from the open justice principle. For example, it cannot make a section 11 order to prohibit publication of material previously given out in open court in those proceedings. Applications for section 11 orders may therefore be heard in camera.
• The Court of Appeal and Divisional Court have considered a range of cases where orders prohibiting identification or publication of identifying details, such as an address, have been sought in respect of defendants, witnesses, including victims, and claimants. Consistent with the general requirement of open justice, the Court’s prime consideration should be the administration of justice and whether it is satisfied that failure to make an order would frustrate or impede it (sympathy for the accused or protection of his business interests against economic damage are not good grounds).
• The Court has the discretion to hear representations from the media or their legal representatives as to the making, variation or lifting of a section 11 order. The media may formally make applications for judicial review of such an order made by the Magistrates’ Court.
• The order should be committed to writing by the clerk to the court and a permanent record kept. It should state its precise scope, the time at which it will cease to have effect, if appropriate, and the specific purpose in making the order (see Practice Direction (Contempt: Reporting Restrictions) [1982]1 WLR 1475). Court Business Rules also suggest prominent display of the notice and insertion into the Daily List.
• Where material might be withheld from the public, it is possible to use other means which represent a lesser derogation from the open justice principle e.g. postponement orders under section 4(2) of the Contempt of Court Act 1981 if the relevant requirements are satisfied. The court has the power to permit some evidence to be submitted in writing rather than read aloud (e.g. medical reports submitted for sentencing consideration). However, the circumstances in which it is appropriate to do so would be rare.

4.3 Postponing prejudicial contemporaneous reports of proceedings (Civil and Criminal Proceedings)

• Under section 4(2) of the Contempt of Court Act 1981, the Court has power in certain restricted circumstances to order that publication of reports of part or all of the proceedings held in open court be postponed for so long as necessary, where such a postponement is necessary for avoiding a substantial risk of prejudice to the administration of justice in those or other proceedings.
• Under section 4(2), Courts should consider whether publication would create a substantial risk of prejudice to the administration of justice and whether postponement of publication of a fair and accurate report of part or the whole of the proceedings which have been held in open court is necessary to avoid the risk. The court should only exercise its discretion to make an order after weighing the competing interests of open justice and fair trial (see R v Sherwood ex p The Telegraph Group plc (2001) The Times, 12 June). It should be slow to do so where the automatic restrictions under section 8 of the Magistrates’ Courts Act 1980 apply (e.g. committal proceedings).
• The courts have suggested that where possible the question of any imposition of reporting restrictions is best dealt with in advance of trial.
• The Magistrates’ Court has discretion to invite representations from the media or their legal representatives as to whether an order should be made, varied or lifted. It may make a temporary order to restrict publication pending its hearing to determine whether an order should be made. The prosecution should also assist the court on the proper legal principles to be applied. The courts have drawn attention to the number of inappropriate orders which otherwise unnecessarily restrict reporting. The media can formally make an application for judicial review of any order.
• The Practice Direction (Contempt of Court: Reporting Restrictions) [1982] 1WRL 1475 CA requires that the order must be committed to writing (in the case of the Crown Court by the Judge or by the clerk under his supervision). It must be formulated in precise terms and must state (a) its precise scope, (b) the time at which it shall cease to have effect, if appropriate, and (c) the specific purpose of making the order.
• It may be appropriate for the Court to make clear whether and to what extent the terms of the order can be published.