4.4 Postponement of reports of false derogatory assertions made in please in mitigation

• Section 58 of the Criminal Procedure and Investigations Act 1996 gives a Magistrates’ Court which is determining sentence following conviction, or determining whether the accused should be committed to Crown Court for sentence (and a court deciding whether to give leave to appeal against a sentence or hearing an appeal against or reviewing a sentence,) power to postpone reporting of derogatory assertions about a named or identified person, if believed on substantial grounds to be false or irrelevant, newly made in mitigation and sentencing appeals and reviews. The section does not apply if the assertions have previously been made during the trial or at other proceedings relating to the offence.
• An interim order can be made as soon as the assertion has been made if there is a real possibility that a final order will be made. A final order must be made as soon as reasonably practicable after the sentence is passed and can last for 12 months.
• The Court can revoke orders of its own motion at any time, or after application. Home Office Circular 24/3/1997 suggests that the media and other third parties can make applications, perhaps by written submission.
• The Home Office Circular gives guidance to court staff on the prompt notification of the media when an order has been made, the display and content of notices on court premises and availability of more detailed information, the entry into the court record of the dates on which the order commences and ceases to have effect, its statutory basis, whether interim or final, names of the defendant and the third party protected, and the derogatory assertions.
• The order prohibits publication or broadcast (as defined) of an assertion which names the person about whom the assertion is made or contains enough to make it likely that members of the public would identify him as that person and reproduces the actual wording of the matter asserted or contains its subsistence.
• Contravention of the order is an offence punishable on summary conviction by a fine up to level 5 on the standard scale. Those liable include publishers, newspaper and magazine proprietors, editors or publishers and broadcasting companies and those with functions corresponding to newspaper editors.
• Defences include that the accused was not aware and neither suspected nor had reason to suspect that the publication or programme included the prohibited assertion or that either an interim or final order had effect at that time.

5. Unauthorised recording of court proceedings

The court has the discretion to permit tape recordings, which would otherwise constitute contempt. (Contempt of Court Act 1981, section 9, Practice Direction (Tape Records) [1981] 1 WLR 1526). It is an offence to take photographs or make sketches (with a view to publication) or attempt to do so in court, in respect of the judge, a juror, witness or party if in the court room, court building or court precincts. (Criminal Justice Act 1925 section 41). The court can issue guidance on the extent of the precincts of the court buildings e.g. by way of a map.

6. General considerations

In some instances referred to above there is a requirement that a restriction order should be committed to writing. In the case of the Crown Court by the judge personally or by the clerk under his supervision. In the case of the Magistrates’ Court, this would be done by their clerk. Good practice should require that this is done whenever a discretionary order is made to ensure that the written order is in the precise form required by the Court.

• There will be cases where the court will be assisted before making an order by receiving either written or oral representations from the media. Factors known to the media may not be apparent from the papers and neither the prosecution nor the defence may be aware of them or have any particular interest in advancing them. It is sensible always to consider inviting such representations. This practice was encouraged by the Divisional Court in R v Teesdale and Wear Valley Justices ex parte M (7 February 2000).
• When a discretionary restriction order is made, it is desirable that the media are given every assistance to comply with it. Magistrates may, therefore, think it helpful to say that if there are any particular problems arising from the making of the order which the media wish to raise in a written note, further guidance will be given in open court.
• Every court should have a proper procedure for ensuring that adequate steps are taken to draw any discretionary restriction order to the attention of media representatives who may not have been in court when the order was made and the court should ensure that the procedure has been followed.
• “Jigsaw Identification”: Particular problems may arise where an order restricts publication of the identity of a victim or witness, and different reports, each complying with the requirement not to identify the victim or witness provide information which when put together makes the restricted identification clear. For example, if one report refers to an unnamed defendant having been convicted of rape of his daughter, and another report names the defendant but does not identify the relationship between the defendant and the witness. However, newspapers, magazines, broadcasters and their regulators have aligned their respective codes so that the media adopt a common approach which avoids such problems when reporting sexual offences (see Code of Practice upheld by the Press Complaints Commission, BBC Producers’ Guidelines, Independent Television Commission’s Programme Code, Radio Authority Programme Code).

  Media organisations may also agree to follow the same approach in reporting other offences involving children. This enables identification of the defendant by name but requires that no details should be given of any relationship which would link the offences to the alleged victim or otherwise identify the victim and the witness. It is recognised that this restriction may handicap the reporting of proceedings but the uniform approach protects the victim or the witness in the way required by the court. Since reports may already have appeared before the case reaches the Court, the Court should be very slow to interfere with this agreed practice (even where interference is possible – see R v Southwark Crown Court ex p. Godwin [1991] 3 All ER 818) since it may result in the sort of identification that the agreement is designed to prevent.

• Courts must ensure that any restrictions on the principle of open justice in both criminal and civil cases are strictly limited and compatible with the European Convention on Human Rights. Exclusion of press and public from court proceedings or imposition of restrictions upon reporting of court proceedings, (including anonymity provisions), must be exercised with reference to the European Convention on Human Rights, in particular Articles 6 and 10, and the duties of the court to act in accordance with the Convention, under section 6(1) and (3) of the Human Rights Act 1998. In civil, but not criminal cases, regard must also be had to the Section 12 of the Human Rights Act 1998 in any case where it might be considering an order or other remedy, which might affect the exercise of the Convention right of freedom of expression.
• The most pertinent provisions are Article 6, the right to fair and public hearings, and public pronouncements of judgment, and Article 10, the right to freedom of expression, including the right to receive and impart information without interference by public authority. Exceptions to both articles are strictly limited. Moreover, the question is not merely one of achieving a proper balance between the two articles – both promote open justice and curtail exclusion from court proceedings and reporting restrictions. Under Article 6, the ECHR has acknowledged that the publicity element which creates open justice helps ensure a fair trial and the UK media has benefited from Articles 6 and 13 (not incorporated in the Human Rights Act 1998) as well as Article 10, to secure reforms to the law of contempt, to obtain rights to appeal against court reporting restrictions and to make representations against in camera proceedings.
• In civil cases, courts must also have regard to the special protection against prior restraint on media publication afforded by Section 12 of the Human Rights Act 1998, which applies when courts might be considering any remedy or order which might affect the exercise of the Convention right to freedom of expression. The courts must have particular regard to the importance of the Convention right to freedom of expression. There are requirements relating to notification, consideration of the merits, extent to which the material is already or is about to pass into the public domain, the public interest in publication and self regulatory media codes.

7. Children and young persons: Quick reference guide

When the Youth Justice and Criminal Evidence Act 1999 comes into force, automatic restriction on identification of alleged young offender when criminal investigation commences until legal proceedings commence – section 44 Youth Justice and Criminal Evidence Act 1999. No restrictions at present.

• Automatic restrictions on identification of children and young persons involved in Youth Court proceedings – section 49 Children and Young Persons Act 1933. No automatic restrictions on other proceedings.
• Automatic restrictions on identification of children involved in adoption proceedings and proceedings where the courts may exercise powers under the Children Act 1989 (section 71 Magistrates Courts Act 1980, section 97(2) Children Act 1989).
• Discretion to prohibit identification of child or young person involved in any court proceedings, provided there is sufficient reason, under section 39 of the Children and Young Persons Act 1933. When the Youth Justice and Criminal Evidence Act 1999 comes into force, section 39 orders will be confined to civil proceedings, but the criminal courts will have the power to make discretionary orders under section 45 of the 1999 Act.
• In common with adults, under 18 year olds are protected by automatic restrictions on identification of complainants of sexual offences – Sexual Offences (Amendment) Acts 1956-1992, to be further amended by Youth Justice and Criminal Evidence Act 1999.
• In all cases, the courts have powers to dispense with automatic restrictions on access or reporting. The court can ask to be addressed on the appropriate use of both the powers to lift the automatic restrictions to any extent, as well as those to impose discretionary orders. See also the relevance of media codes in Section 6 above.