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Reporting Restrictions

Index

  1. The General Position – the Open Justice Principle
  2. Hearings from which the Public are Excluded
  3. Automatic Reporting Restrictions
  4. Discretionary Reporting Restrictions
  5. Other Restrictions on Reporting
  6. General Considerations

Appendix

  1. Sexual Offences (Amendment) Act 1992 Section 1 (as amended)
  2. Section 12 Administration of Justice Act 1960 (as it applies to Northern Ireland).

Legislation Referred To

Punishment of Incest Act 1908

Official Secrets Act 1920
Section 8(4)

Children and Young Persons Act 1933
Section 37

Criminal Justice Act (NI) 1945
Section 29

Administration of Justice Act 1960
Section 12

Contempt of Court Act 1981
Section 2
Section 4(1)
Section 4(2)
Section 8
Section 9
Section 11

Criminal Justice Act 1987
Section 11

Criminal Justice Act 1988
Section 159

Sexual Offences (Amendment) Act 1992
Section 1
Section 2

Criminal Procedure and Investigations Act 1996
Section 41
Section 42
Section 58

Human Rights Act 1998
Section 12

Youth Justice and Criminal Evidence Act 1999
Schedule 2

Section 44
Section 45
Section 46
Section 47
Section 49
Section 50(1)

Serious Organised Crime and Police Act 2005
Section 75

Magistrates’ Courts (Northern Ireland) Order 1981
Article 44(1)
Article 44(2)

Criminal Justice (Serious Fraud) (NI) Order 1988
Article 10

Police and Criminal Evidence (NI) Order 1989
Article 44(19)

Children (Northern Ireland) Order 1995
Article 170

Children's Evidence (Northern Ireland) Order 1995
Schedule 1

Criminal Justice (Children) (NI) Order 1998
Article 18
Article 21
Article 22

Criminal Evidence (NI) Order 1999
Article 7
Article 13
Article 24

Criminal Justice (Northern Ireland) Order 2004
Article 17
Article 18
Article 21
Article 22
Article 23
Article 30(1)
Part IV

The Crown Court Rules (Northern Ireland) 1979


Cases Cited

Attorney General v. Leveller Magazine Ltd [1979] A.C. 440

R v. Manchester Crown Court ex parte H and D [2000] 1 Cr. App. R. 262

In re S (a child) [2004] UKHL 47

R v. Southwark Crown Court ex parte Godwin [1991] 3 All ER 818

R v. Teesdale and Wear Valley Justices ex parte M (7th February, 2000)


Reporting Restrictions


1.     The General Position - the Open Justice Principle

 

The general rule at common law – now supplemented by the jurisprudence flowing from the Human Rights Act 1998 – is that the administration of justice must be done in public.  The media is in court to report the proceedings to the public, the majority of whom will be unable to be there in person but who have the right to be informed as to what has occurred. It will be noted that Article 6.1 of the European Convention on Human Rights provides as follows:

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private lives of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. (Emphasis supplied)

Accordingly, unless there is good and lawful reason, nothing should be done to prevent the publication to the wider public of fair and accurate reports of proceedings by the media. The open justice principle is clearly recognised by Parliament and the common law has been supplemented in this respect by statute.

The media have been given statutory rights to attend certain proceedings from which the public is excluded. Statutory defences in libel and contempt litigation are available for fair, accurate and contemporaneous reports of proceedings. Statutory rights have been provided to make representations against the imposition of restrictions on reporting or public access to proceedings. The role of the media is recognised in Strasbourg and domestic jurisprudence.

1.1       Exceptions to the Open Justice Principle

There are circumstances in which the court will have to consider departing from this general principle. In some cases, statute automatically restricts the giving of certain details in reports of court proceedings. Common law powers and statutory restrictions enable the court in other circumstances to exclude the public and the media and to impose temporary or permanent restrictions on the media’s reports of court proceedings by making a court order. In all such circumstances, courts are encouraged to exercise their discretion to hear the media’s representations at the time any court is considering imposition of an order. Courts are also encouraged to exercise their discretion to hear media representations on the lifting of such restrictions to permit contemporaneous reporting of the proceedings.

Such discretion should be exercised in addition to any formal rights which the media might have for appeal or review of such orders or to apply for lifting of automatic reporting restrictions. This also often ensures that problems are resolved quickly. The law provides particular protection to contemporaneous reports of court proceedings and has recognised the ‘perishable’ nature of news and courts have acknowledged the importance of hearing and resolving issues relating to reporting as soon as possible. If the necessary balance between the general principle of open justice and properly competing interests is to be achieved, a clear understanding of the legal basis for the imposition of restrictions is necessary by judiciary, court staff and the media. This guide seeks to highlight those areas in which consideration of restrictions is likely to occur in the Magistrates’ Court, in dealing with criminal and civil proceedings.

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2.    Hearings from which the Public are Excluded

In general, court proceedings must be held in open court, so that public and press have the right to attend the proceedings.

The Crown Court has inherent power to regulate its own proceedings. However, departure from the open justice principle is exceptional. It must be justified as necessary for the avoidance of the frustration of the administration of justice, or the rendering of it impracticable.

Statutory provisions enable the Crown Court to sit in camera and in chambers in certain circumstances, for example, incest proceedings under the Punishment of Incest Act 1908 or under section 75 of the Serious Organised Crime and Police Act 2005 when reviewing a sentence in relation to assistance by the defendant.  The Crown Court Rules (Northern Ireland) 1979 as amended prescribe the formal procedure for application for a trial to be held in camera, for reasons of national security or protection of the identity of a witness or another. The media may make representations and can formally appeal under section 159 Criminal Justice Act 1988.  

Adjournment into Chambers should not be automatic and proceedings should be adjourned into open court as soon as exclusion of the public is unnecessary.

A Court shall not permit a child (except a baby) under the age of 14 to be present during the trial (or preliminary proceedings thereto) of another person except when required as a witness or otherwise of the purposes of justice.  A direction may also exclude persons under 17 in proceedings relating to conduct of an indecent or immoral nature: Article 18, Criminal Justice (Children) (NI) Order 1998.

The Court shall exclude the public during the testimony of witnesses aged under 17 where the child’s evidence is likely to involve matter of an indecent or immoral nature. (Article 21, Criminal Justice (Children) (NI) Order 1998)  In England members of the press are specifically excluded from the equivalent provision, but this does not appear to be the case in Northern Ireland – see section 37, Children and Young Persons Act 1933.

At common law, the court can exclude the public but retain media representatives when considering exhibits in obscene publications trials.

If the court has the power to sit in camera, it can employ less restrictive derogations from open justice which would protect the administration of justice. This might involve reporting restrictions or enabling information to be withheld from being given out in open court. However, these are also exceptional measures.

Article 13 of the Criminal Evidence (NI) Order 1999 permits the court to exclude persons of any description from the court during the evidence of a child or vulnerable adult witness in cases relating to a sexual offence or where there are grounds for believing that the witness has been or may be intimidated. If the media are to be excluded, one nominated representative must be permitted to remain. Article 13 was brought into operation on 30th June 2003 and 1 December 2003.

 

Article 44(19) of the Police and Criminal Evidence (NI) Order 1989 provides that a magistrates' court hearing a complaint in support of a warrant for further detention shall not sit in open court.

Section 8(4) of the Official Secrets Act 1920 provides for a prosecution application to exclude the public in relevant proceedings.  The application does not need to be supported by evidence.  The Court is deemed to have a wide measure of control: Attorney General v. Leveller Magazine Ltd [1979] A.C. 440.

Article 6 and Article 10 of the European Convention on Human Rights are relevant considerations. Publication of private proceedings constitutes contempt under section 12 of the Administration of Justice Act 1960, the terms of which are appended to this guidance.

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3.    Automatic Reporting Restrictions

There are a number of automatic reporting restrictions on proceedings held in open court. The existence of an automatic restriction may render some discretionary restrictions unnecessary, (e.g. there is no need to make a discretionary order in respect of a child victim of a sexual offence because the automatic restrictions as to the identity of any victim of a sexual offence apply). It may be of assistance in some cases for the judge to remind the media of any automatic restriction and to consider whether any guidance will assist the media to keep within such automatic restrictions. The statutory provisions may give the court power to lift or vary the restrictions in specified circumstances of its own motion or after hearing application from the parties or media.

3.1. Victims of sexual offences

Schedule 2 of the Youth Justice and Criminal Evidence Act 1999 (which came into force on 8th November, 2004) ensures that all restrictions on reporting matters relating to the identity of complainants in sexual offences are now contained in the Sexual Offences (Amendment) Act 1992 as amended.  (Section 1 of the 1992 Act is appended below for ease of reference.)
Section 1 of the amended 1992 Act 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 offences to which this automatic restriction applies are set out in section 2 (appended below for ease of reference) of the 1992 Act and include rape, indecent assault, and indecency with children as well as the vast majority of other sexual offences.

Since the restriction is mandatory no order of the court is required even in the case of a child victim. However, notwithstanding the media’s obligation to be aware of and adhere to this automatic restriction, it is considered advisable for the court – whether orally or in any written ruling or judgment – to draw attention to the fact of the automatic restriction. Issues may sometimes arise as to what is likely to lead members of the public to identify the complainant. Thus (to take an obvious example) where the allegations involve familial rape the name of the accused relative, who wouldn’t otherwise enjoy the benefit of anonymity, should be anonymised/withheld from media reports of the case in order to ensure that the identity of the complainant(s) is kept out of the public domain. (See also the entry below at 6.1 regarding jigsaw identification.)

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 trial judge has the discretion to lift or relax the reporting restrictions if their effect is to impose a substantial and unreasonable restriction on reporting the proceedings at trial and it would be in the public interest to do so.

The victim or alleged victim may, in writing, agree to the restriction as to the reporting of his/her identity being lifted.  However, some care should be taken by the media regarding such a waiver in situations where there is more than one complainant lest the identification of the complainant who has waived his/her rights to anonymity should also serve to identify other complainants who have not agreed to the lifting of the restriction as regards their identity.  Often in cases where there are multiple victims of sexual assault there will be a family or other close connection between them.

Care may also be needed in relation to other subsequent proceedings brought by such a complainant e.g. if a complainant in a sexual abuse case were to bring a judicial review challenge to a decision not to prosecute or against some decision of the Compensation Agency the court considering that application should ensure that in publishing any judgment that it is not an accidental agent of a breach of the lifetime reporting restriction by referring to the applicant by name.

3.2. Committal proceedings and pre-trial hearings

Under Article 44(1) of the Magistrates’ Courts (Northern Ireland) Order 1981 where at a preliminary investigation or inquiry an opening statement is made on behalf of the prosecution, that statement must not be printed, published or included in a relevant programme.

[While it is not an automatic restriction it is perhaps also appropriate to note here that Article 44(2) of the Magistrates’ Courts (Northern Ireland) Order 1981 provides that where at a preliminary investigation or inquiry objection is taken as to the admissibility of any evidence the court has a discretion, ‘if satisfied that the objection is made in good faith,’ to order that such evidence and any discussion of it shall not be printed etcetera and, if it appears to the court that publication of any part of the evidence adduced before it (whether or not objection has been made) would prejudice the trial of the accused, it may in its discretion order that that part of the evidence shall not be printed etcetera].

Automatic restrictions under section 41 and 42 of the Criminal Procedure and Investigations Act 1996 prevent reporting of all rulings made at 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 interests of justice to do so.

3.3. Preparatory hearings

Reporting restrictions are imposed in respect of preparatory hearings in cases of serious fraud: Article 10 of the Criminal Justice (Serious Fraud) (NI) Order 1988 is the local equivalent to section 11 of the Criminal Justice Act 1987.  Breach is a summary offence punishable by fine.

3.4. Dismissal proceedings where there has been no committal

Similar restrictions apply to unsuccessful applications for dismissal in cases for trial in the Crown Court where there has been no committal proceeding. These cover serious fraud cases (Article 10 of the Criminal Justice (Serious Fraud) (NI) Order 1988).  Similarly, by paragraph 5 of Schedule 1 to the Children's Evidence (Northern Ireland) Order 1995, except by order of the judge it is unlawful to report a dismissal application in certain cases involving children where a notice of transfer has been given.

3.5. Proceedings in the absence of the jury while the trial continues

At common law, it is a contempt of court to publish any material which interferes with the course of justice as a continuing process in criminal proceedings. The reporting of that which transpires at times when the jury are asked to withdraw, at any stage before the jury returns its verdict, is therefore likely to be a contempt of court since the report may well defeat the whole purpose of the jury withdrawing.  This would clearly now apply to ‘Rooney’ hearings, as they have become known, (See AG's Reference (No. 1 of 2005) Bernard Philip Mary Rooney et alia (AG Ref 6-10 of 2005) [2005] NICA 44 where the Court of Appeal laid down rules of practice to be observed where an advance indication of sentence has been sought.)

3.6   Prosecution Appeals

Article 30(1) of the Criminal Justice (Northern Ireland) Order 2004 prohibits publication of reports of any prosecution appeal from a ruling of the trial judge under Part IV of that Order and of applications for leave to appeal as well as anything done under Article 17, 18, 21, 22 or 23 of the Order.  The important point to bear in mind here is that Article 30(1) is attempting to protect the defendant – and by extension the process of administration of justice – from the risk of a jury becoming aware from reports of substantial matters which could have a bearing on the fairness of any subsequent trial. It seeks to achieve this by prohibiting reports of the detail of leave/appeal proceedings rather than the identity of the defendant - as is clear from paragraph 8 where the restriction does not extend to the defendant’s identity or other pertinent details such as the nature of the offences. Its real target, then, is the substance of those proceedings (‘anything done’) where the facts which might emerge could prejudice any subsequent jury trial. Parliament has therefore sought to suppress details of the facts addressed in the appeal proceedings rather than the identity of the defendant and other ancillary matters.

This restriction lasts until the conclusion of the criminal proceedings against the defendant(s). However, paragraphs 2, 3 and 4 of Article 30 provide that the judge, the Court of Appeal and the House of Lords (on any further appeal) may order that paragraph (1) is not to apply, or is not to apply to a specified extent. Such a departure from the strictures of paragraph 1 would presumably only result from the court, in exercise of its discretion, having determined that such matters as it allows to be reported will not have an adverse impact on any subsequent trial proceedings.

3.7  Proceedings under the Children (Northern Ireland) Order 1995

Article 170(2) of the Children (Northern Ireland) Order 1995 ensures privacy for children involved in proceedings under the Order by prohibiting publication of any material which is intended, or likely, to identify any child as being involved in any such proceedings; or an address or school as being that of a child involved in any such proceedings.

Paragraph (4) of the same article provides that the court may, if satisfied that the welfare of the child requires it, by order dispense with the requirements of paragraph (2) to such extent as may be specified in the order.


4.    Discretionary Reporting Restrictions

The Crown 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.

4.1. Protection of young persons and adult witnesses

When the relevant provisions eventually come into force the Youth Justice and Criminal Evidence Act 1999 will provide for revised restrictions on the reporting of the identity of young persons involved in criminal proceedings.  In the meantime the relevant law is contained in Article 22 of the Criminal Justice (Children) (NI) Order 1998

Article 22 provides that where a child (which, for these purposes, is now a person under 18) ‘is concerned in’ any criminal proceedings (i.e. proceedings by, against or in which the child is a witness) the Court may direct that no report shall be published which reveals the name, address or school of the child or particulars likely to lead to the child’s identification, and neither any picture of the child, except by direction of the Court.  Breach is a summary offence punishable by a fine.

N.B. a useful guide to the correct interpretation of the Article 22 phrase ‘is concerned in etcetera’ is the House of Lords decision: In re S (a child) [2004] UKHL 47. The judgment is helpful in that it not only addresses the construction of the relevant legislative provision (as contained in an analogous English provision) but considers generally the interplay between open justice and the need for protection of individuals by way of reporting restrictions and then goes on to consider the issue from a human rights perspective seeking to balance the competing claims of Article 8 and Article 10. In this case the application was by a minor for an injunction banning the reporting of the identity of his mother (as this would in turn identify him) who stood accused of murdering his sibling by means of acute salt poisoning.

Lord Steyn in vindicating the first instance decision of the judge who refused to grant such an injunction said as follows: ‘In my view the judge analysed the case correctly under the ECHR. Given the weight traditionally given to the importance of open reporting of criminal proceedings it was in my view appropriate for him, in carrying out the balance required by the ECHR, to begin by acknowledging the force of the argument under article 10 before considering whether the right of the child under article 8 was sufficient to outweigh it.’ (Emphasis supplied)

4.2 Where children are involved in proceedings other than criminal proceedings and proceedings under theChildren (Northern Ireland) Order 1995

Article 170 (7) of the Children (Northern Ireland) Order 1995 provides that in non-criminal/non-Children Order proceedings the court may direct that no person shall publish any material which is intended, or likely, to identify any child as being involved in those proceedings; or an address or school as being that of a child involved in any such proceedings, except in so far (if at all) as may be permitted by the direction of the court.

 

This appears to be a power which the court may exercise either on the application of one of the parties or of its own motion and caters for those situations where the rights of a child not to have his/her identity disclosed will appear to the court outweigh article 10 (ECHR) considerations.

The Youth Justice and Criminal Evidence Act 1999:
1(i) Persons Under the age of 18
a) Pre-commencement of criminal proceedings

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

This restriction lasts only until criminal proceedings begin.

Any criminal court 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. There is a right of appeal from a magistrates’ court's decision in this regard to the Crown Court.
It should be noted that the Home Office has made clear that it has no current intention to implement these provisions in respect of the identification of young witnesses and victims.

b) Proceedings in the Crown Court

Section 45 of the 1999 Act (if brought into force in full) would give a power to the court to give a direction restricting reporting of any matter which might lead the public to identify a person under 18 as a defendant, victim or witness in criminal 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.
The restriction can only be made under this section until the person reaches the age of 18.

The 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 (iii)]

An excepting direction cannot be given by reason of the fact that the proceedings have been determined in any particular way or have been abandoned. However, in the case of a defendant the fact that he has been convicted and that there is to be an appeal with some prospect of success which may result in a retrial may be a basis for making an excepting direction until the proposed appeal is disposed of when the judge might otherwise have considered revoking the original direction. The Divisional Court has made clear that the possibility of a retrial is 'a matter of very great importance in considering revoking directions in such circumstances'.

There is no power to impose restrictions to prevent identification of children other than the defendant, a victim or a witness, e.g. the siblings of the defendant or a victim.

Under the old legislation, 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 a number of cases at first instance, 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] 1 Cr. App. R. 262.

(ii) Adult Witnesses

Section 46 of the 1999 Act (in force from 8th November, 2004) gives the court power to restrict reporting about certain adult witnesses (other than the accused) in criminal proceedings on the application of any party during the lifetime of the witness.

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.

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:

  • The nature and circumstances of the offence;
  • The age of the witness;
  • The social and cultural background of the witness and his ethnic origin, if relevant;
  • The domestic and employment circumstances of the witness, if relevant;
  • Any religious beliefs or political opinions of the witness, if relevant;
  • Any behaviour towards the witness by the defendant, his family or associates or other witnesses and defendants;
  • 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 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.

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. (See above).

(iii) General considerations in relation to persons under 18 & adult witnesses

Breach of reporting directions is a summary offence under section 49 of the 1999 Act. Prosecution requires the consent of the Attorney General. A statutory defence is 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. Section 50(7) contains a defence of the witness's consent when the restriction applies to an adult witness.

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 in the public interest, the court must have regard to 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 views such a person, or in the case of a person under 16 his parent or other appropriate person, may have expressed.

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 (which was commenced here in November 2004 by virtue of SR 2004 No. 467) prohibits the reporting of special measures directions and directions which prohibit the accused from conducting cross-examination under Articles 7 and 24 of the Criminal Evidence (NI) Order 1999. The automatic ban applies during the trial, but the court may order that the restrictions do not apply in whole or in part.

 

4.3 Names and other matters withheld in court

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.

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 appeal formally against a Crown Court order to the Court of Appeal under section 159 of the Criminal Justice Act 1988.

The order should be committed to writing by the Crown Court judge personally or by the clerk to the court under his direction 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. The press should be given notice that an order has been made and court staff should be prepared to answer any inquiry about a specific case.

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).

Lord Bingham (when L.C.J.) has given guidance that addresses of witnesses, whether for the prosecution or the defence, should only be given in open court with the leave of the court where the address is necessary for evidential purposes.

4.4 Postponing prejudicial contemporaneous reports of proceedings

Under section 4(2) of the Contempt of Court Act 1981, the Crown 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.  It should be noted that section 4(1) provides that were no such order has been made a person will not be guilty of contempt of court under the strict liability rule (set out at section 2 of the Act q.v.) in respect of a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith.

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 that risk. The court should only exercise its discretion to make an order after weighing the competing interests of open justice and fair trial.

The courts have suggested that where possible the question of any imposition of reporting restrictions are best dealt with in advance of trial. The Crown 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 media has the formal right to appeal against the Crown Court's imposition of an order under section 159 of the Criminal Justice Act 1988.

It may be appropriate for the judge to make clear whether and to what extent the terms of the order can be published.

4.5 Postponing reports of derogatory assertions made in pleas in mitigation

Section 58 of the Criminal Procedure and Investigations Act 1996 gives a Crown Court determining sentence following conviction 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. 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, 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 media can formally appeal against an interim or final order made by the Crown Court, under section 159 of the Criminal Justice Act 1988.

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.

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5.    Other Restrictions on Reporting

5.1. 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). It is an offence to take photographs or make sketches or attempt to do so in court, in respect of the judge, witness or party if in the court room, court building or court precincts. (Section 29 Criminal Justice Act (NI) 1945) The court can issue guidance on the extent of the precincts of the court buildings e.g. by way of a map.

5.2. Jury's deliberations

It is a contempt of court to publish a report of a jury's deliberations (Contempt of Court Act 1981 section 8).

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6.    General Considerations

In some instances referred to above there is a requirement that a restriction order should be committed to writing by the judge personally or by the clerk under his supervision. 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 judge.

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 English Divisional Court in R v. Teesdale and Wear Valley Justices ex parte M (7th February, 2000).
When a discretionary restriction order is made, it is clearly desirable that the media are given every assistance to comply with it. A judge 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 a judge should ensure that the procedure has been followed. However, the obligation remains on the media to ensure that they take the appropriate steps to make themselves aware of any discretionary reporting restrictions and to comply fully with them (see Attorney General’s Application (Sunday World) [2008] NIQB 41)
The Northern Ireland Court Service’s ICOS system should now record all non-automatic reporting restrictions against the name of the case to which it applies.

6.1. 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 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 offence to the alleged victim or otherwise identify the victim or 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 Crown 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 parte Godwin [1991] 3 All ER 818) since it may result in the sort of identification that the agreement is designed to prevent.

Article 6 (right to a fair hearing), article 8 (right to respect for private and family life) and article 10 (right to freedom of expression) of the European Convention on Human Rights may need to be considered. Section 12 of the Human Rights Act 1998 making provision for protection of journalistic and literary material against prior restraint does not apply to criminal proceedings.

6.2. Written Judgments – Reporting Restrictions Procedure

Under the Procedure for Reporting Judgments on the Internet drawn up by the Office of the Lord Chief Justice all written judgments submitted by the judiciary to the Judges’ Reference Library for publication on the Internet are subject to a two-stage scrutiny (first by a member of the administration office and thereafter by a legal officer) to ensure compliance with all or any reporting restrictions.  It should be borne in mind, however, that the primary responsibility for ensuring such compliance rests with the judicial officer who is the author of the judgment and appropriate care should be taken in the preparation and proof-reading of judgements to avoid a breach of any relevant or appropriate restrictions.
Return to Index

 

 

APPENDIX

1. Sexual Offences (Amendment) Act 1992
Section 1 (as amended)

[N.B. by virtue of section 8(6) of the above act section 1 below extends to Northern Ireland]

Anonymity of victims of certain offences.

— (1) Where an allegation has been made that an offence to which this Act applies has been committed against a person, no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as the person against whom the offence is alleged to have been committed.
(2) Where a person is accused of an offence to which this Act applies, no matter likely to lead members of the public to identify a person as the person against whom the offence is alleged to have been committed (“the complainant”) shall during the complainant’s lifetime be included in any publication.
(3) This section—

(a) does not apply in relation to a person by virtue of subsection (1) at any time after a person has been accused of the offence, and
(b) in its application in relation to a person by virtue of subsection (2), has effect subject to any direction given under section 3.

(3A) The matters relating to a person in relation to which the restrictions imposed by subsection (1) or (2) apply (if their inclusion in any publication is likely to have the result mentioned in that subsection) include in particular—

(a) the person’s name,
(b) the person’s address,
(c) the identity of any school or other educational establishment attended by the person,
(d) the identity of any place of work, and
(e) any still or moving picture of the person.

(4) Nothing in this section prohibits the inclusion in a publication of matter consisting only of a report of criminal proceedings other than proceedings at, or intended to lead to, or on an appeal arising out of, a trial at which the accused is charged with the offence.

 

 


2. Sexual Offences (Amendment) Act 1992
Section 2 (as amended)

Offences to which this Act applies
2. - (3) This Act applies to the following offences against the law of Northern Ireland-

(a) rape;
(b) burglary with intent to rape;
(c) any offence under any of the following provisions of the Offences against the Person Act 1861-
 (i) section 52 (indecent assault on a female);
 (ii) section 53 so far as it relates to abduction of a woman against her will;
  (iii) section 61 (buggery);
  (iv) section 62 (attempt to commit buggery, assault with intent to commit buggery or indecent assault on a male);
(d) any offence under any of the following provisions of the Criminal Law Amendment Act 1885-
  (i) section 3 (procuring unlawful carnal knowledge of woman by threats, false pretences or administering drugs);
  (ii) section 4 (unlawful carnal knowledge, or attempted unlawful carnal knowledge, of a girl under 14);
  (iii) section 5 (unlawful carnal knowledge of a girl under 17);
(e) any offence under any of the following provisions of the Punishment of Incest Act 1908-
  (i) section 1 (incest, attempted incest by males);
  (ii) section 2 (incest by females over 16);
(f) any offence under section 22 of the Children and Young Persons Act (Northern Ireland) 1968 (indecent conduct towards child);
(g) any offence under Article 9 of the Criminal Justice (Northern Ireland) Order 1980 (inciting  girl under 16 to have incestuous sexual intercourse);
(h) any offence under any of the following provisions of the Mental Health (Northern Ireland) Order 1986-
  (i) Article 122(1)(a) (unlawful sexual intercourse with a woman suffering from severe mental handicap);
  (ii) Article 122(1)(b) (procuring a woman suffering from severe mental handicap to have unlawful sexual intercourse);
  (iii) Article 123 (unlawful sexual intercourse by hospital staff, etc. with a person receiving treatment for mental disorder);
(hh) any offence under any of the following provisions of the Criminal Justice (Northern Ireland) Order 2003-
(i) Article 19 (buggery);
  (ii) Article 20 (assault with intent to commit buggery);
  (iii) Article 21 (indecent assault on a male);
(ha) any offence under any of sections 15 to 21, 47 to 53, 57 to 59, 66, 67, 70 and 72 of the Sexual Offences Act 2003;
(hb) any offence under—
  (i) any provision of Part 2, 3 or 4, or
  (ii) Article 65, 66, 67, 70, 71, or 74,
of the Sexual Offences (Northern Ireland) Order 2008;
(i) any attempt to commit any of the offences mentioned in paragraphs (a) to (hb);
(j) any conspiracy to commit any of those offences;
(k) any incitement [encouraging, assisting] of another to commit any of those offences;
(l) aiding, abetting, counselling or procuring the commission of any of the offences mentioned in paragraphs (a) to (i) and (k).

(4) This Act applies to an offence under section 42 of the Armed Forces Act 2006 if the corresponding offence under the law of England and Wales (within the meaning given by that section) is an offence within a paragraph of subsection (1) above.


 

3. Section 12 Administration of Justice Act 1960 (as it applies to Northern Ireland).

Publication of information relating to proceedings in private.

(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say—

(a) where the proceedings—
  (i) relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;
  (ii) are brought under the Children (Northern Ireland) Order 1995; or
  (iii) otherwise relate wholly or mainly to the maintenance or upbringing of a minor
(b) where the proceedings are brought under the law for the time being in force in Northern Ireland with respect to the care or custody of, or to the property and affairs of, persons suffering from mental illness or other mental disorder;".
(c) where the court sits in private for reasons of national security during that part of the proceedings about which the information in question is published;
(d) where the information relates to a secret process, discovery or invention which is in issue in the proceedings;
(e) where the court (having power to do so) expressly prohibits the publication of all information relating to the proceedings or of information of the description which is published.

(2) Without prejudice to the foregoing subsection, the publication of the text or a summary of the whole or part of an order made by a court sitting in private shall not of itself be contempt of court except where the court (having power to do so) expressly prohibits the publication.

(3) In this section references to a court include references to a judge and to a tribunal and to any person exercising the functions of a court, a judge or a tribunal; and references to a court sitting in private include references to a court sitting in camera or in chambers.

(4) Nothing in this section shall be construed as implying that any publication is punishable as contempt of court which would not be so punishable apart from this section.


1Grey text refers to provisions in legislation which have been enacted but not yet commenced.

iLord Diplock's speech in A-G v Leveller Magazine Ltd [1979] AC 440 at pp. 449H–450D:
As a general rule the English system of administering justice does require that it be done in public: Scott v Scott [1913] AC 417. If the way that the courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice. The application of this principle of open justice has two aspects: as respects proceedings in the court itself it requires that they should be held in open court to which the press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is communicated publicly. As respects the publication to a wider public of fair and accurate reports of proceedings that have taken place in court the principle requires that nothing should be done to discourage this.
However, since the purpose of the general rule is to serve the ends of justice it may be necessary to depart from it where the nature or circumstances of the particular proceeding are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice or would damage some other public interest for whose protection Parliament has made some statutory derogation from the rule. Apart from statutory exceptions, however, where a court in the exercise of its inherent power to control the conduct of proceedings before it departs in any way from the general rule, the departure is justified to the extent and to no more than the extent that the court reasonably believes it to be necessary in order to serve the ends of justice.

iiSection 5 of the Punishment of Incest Act 1908. 

iiiSee Re Ministry of Defence [1994] NI 279: the Court balances the competing interests.  A public interest immunity certificate if the correct way to proceed in cases of national security.  A Court faced with a certificate will balance competing interests: Doherty v MOD [1991] 1 NIJB 68.  As to witness screening, see Valentine, Folder 6, $Qa.11.  A distinct power exists to allow a witness to testify with out being named: In re Jordan [1995] NI 308.

ivAt para 20ff Lord Steyn said the following: “Given the number of statutory exceptions, it needs to be said clearly and unambiguously that the court has no power to create by a process of analogy, except in the most compelling circumstances, further exceptions to the general principle of open justice.
    21.  Section 39 of the Children and Young Persons Act 1933 is of particular relevance. It provides:
‘(1) In relation to any proceedings in any court … the court may direct that - (a) no newspaper report of the proceedings shall 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 against or in respect of whom the proceedings are taken, or as being a witness therein; (b) no picture shall be published in any newspaper as being or including a picture of any child or young person so concerned in the proceedings as aforesaid; except in so far (if at all) as may be permitted by the direction of the court.’ [Emphasis supplied]
This provision will be replaced by section 45 of the Youth Justice and Criminal Evidence Act 1999, which is not yet in force: see also section 46(3) of the same Act which came into force on 7 October 2004. For present purposes section 45 is in material respects the same as the extant section 39(1): see section 45(3). As the words, which I have italicised, make clear section 39(1) is not engaged in the present case. My reason for referring to it is, however, the reflection that, in regard to children not concerned in a criminal trial, there has been a legislative choice not to extend the right to restrain publicity to them. This is a factor which cannot be ignored.”

vR v Manchester Crown Court ex parte H & D (unreported - 30 July 1999) - a decision relating to the earlier legislation.

vihttp://www.homeoffice.gov.uk/circulars/1997/hoc9711.htm