Court reporting and reporting legal proceedings

Key points

Always seek advice from your content lawyer/compliance advisor before undertaking any reporting on court or legal proceedings.
Care must be taken to avoid identifying individuals who have been granted anonymity by the court.
Specific rules apply where under-18s are involved in legal proceedings.
Some cases, such as those involving sexual offences, slavery or family proceedings, place additional restrictions on court reporting.

Introduction

There is a long-established principle that legal proceedings should be conducted openly and held in public. However, the law also recognises that there will be occasions where, in the interests of justice or to protect the rights of individuals, it is necessary to curtail the reporting of legal proceedings, for example to postpone court reporting, to prevent publication of the names of certain parties or to prohibit or limit the nature of the evidence that is reported.

The laws that restrict the reporting of legal proceedings are numerous and varied. Many relate to the identification of children and the victims of sexual offences. In most cases, courts will order that children who are the subject of proceedings, or who are witnesses in proceedings and/or are victims of sexual offences, cannot be identified.

This is a complex area of law and advice must be sought from your content lawyer/compliance advisor at an early stage and certainly before filming. To breach most reporting restrictions is to commit a criminal offence.
Below is a brief summary of the law as it stands.

Filming the courts

Under the Criminal Justice Act 1925, filming in English courts was prohibited. However, the UK Supreme Court was not covered by that Act and has been recording and streaming its cases live via its website since it started hearing cases.

At the end of October 2013, TV cameras were allowed to film for broadcast for the first time in the English Court of Appeal. And in 2022 TV cameras were allowed to film judges sentencing serious criminals at Crown Courts for the first time. The cameras cannot film the witnesses, victims or jurors. This can only be done by prior arrangement with the courts.

With any live court reporting there must be a short time delay to protect against contempt of court risk, any chance of public disturbances, and to ensure that broadcasters can comply with Ofcom and other regulations.

If there is the possibility of there being a retrial following an appeal against conviction, the filmed material can only be broadcast/published after that case has concluded.

As with filming Parliament, the footage can be used in news, current affairs and documentary content but not in satire, comedy, entertainment content or for advertising.

Filming the Scottish courts

Filming in the Scottish courts has been allowed subject to permissions and conditions since 1992. The then most senior judge, the Lord President, stated it is in the public interest that the public become more aware of the way in which justice is being administered in their own courts. He thought there was a risk that the showing on television of proceedings in the courts of other countries or in inaccurate dramas would lead to misunderstandings about the way in which court proceedings are conducted in Scotland.

Postponing court reporting

Courts have the power to postpone the publication of any report relating to proceedings, for any length of time necessary, under Section 4(2) of the Contempt of Court Act 1981. Before such an order is made, the court should be satisfied that postponement is necessary to avoid a substantial risk of serious prejudice to the proceedings or pending proceedings. When imposing such restrictions, the court should set a specific date on which the restrictions will cease. Normally this will be at the conclusion of the trial or a series of trials – the reporting of matters in one case might be prejudicial to a later, separate trial and, thus, the court may order that the first trial cannot be reported until the later one has concluded.

Preventing identification of parties

Courts have the power, even in relation to proceedings in open court, to order that certain material, including the names of individuals, should be kept secret from the public sitting in court and, where that is the case, also from any media reporting of the case. However, such orders tend to be rare and reserved for cases where publishing the material would frustrate the administration of justice, rather than where a witness or defendant simply prefers to remain anonymous.

Jigsaw identification

Media organisations need to be careful of 'jigsaw identification', in other words, one media organisation giving certain details about proceedings, but omitting others so as not to identify a juvenile, but other media organisations giving or withholding different information so that, when everything published is taken together, the juvenile is identifiable.

In order to avoid jigsaw identification, the Independent Press Standards Organisation (IPSO) Editors' Code of Practice (which applies to the printed media) states that in such cases:

the child must not be identified.
the adult may be identified.
the word 'incest' must not be used where a child victim might be identified.
care must be taken that nothing in the report implies the relationship between the accused and the child.

This offers good practical guidance for all media when reporting on such matters.

Preliminary hearings in criminal proceedings

There are many types of preliminary hearings in criminal legal proceedings, e.g., bail hearings, committal, allocation or 'sending for trial' hearings when it is decided where the trial will take place. Such proceedings are normally held in public, but what can be reported is severely restricted – only the 'bare bones' can be reported, e.g., names of parties, offences, and arrangements as to bail.

Content creators must always seek advice from their content lawyer/compliance advisor before reporting on criminal legal proceedings.

Legal proceedings involving under-18s

People under 18 can be involved in all kinds of legal proceedings, and in recognition of the fact that they are generally more vulnerable than adults, the law seeks to protect their rights in a number of ways.

The identity of under-18s involved in most legal proceedings is protected by the court – automatically in the Youth Court and by specific order in most other courts.

Any reference whatsoever to under-18s involved in legal proceedings (criminal, civil or family) must be referred to the content lawyer/compliance advisor as soon as possible for advice.

Where legal restrictions apply prohibiting the identification of children involved in legal proceedings, content creators must be careful not to publish any material that would directly or indirectly lead to any of those individuals being identified, whatever their involvement in the proceedings.

When covering pre-trial investigations into alleged offences, even where no legal restrictions apply, be mindful when considering broadcasting the image, name, address, school or place of work of any child.

It is a contempt of court, i.e., a criminal offence, to identify a child in contravention of an order of the court or in contravention of legal restrictions.

In addition, the Ofcom Broadcasting Code says:

Where no such legal restrictions apply, for example in the majority of cases where minors are given an anti-social behaviour injunction (ASBI – formerly anti-social behaviour orders [ASBOs] or Criminal Behaviour Orders [CBOs]), then, in common with other parts of the media, there is correspondingly no regulatory restriction and minors can be identified. However, even where no legal restrictions apply, broadcasters should have particular regard for the vulnerability of any child involved before broadcasting their name, address, school, place of work or any picture of them.

Lifetime anonymity involving witnesses or victims/alleged victims under 18

A criminal court can impose a Section 45A Order in criminal cases, named after the section of the Youth Justice and Criminal Evidence Act 1999 which provides lifetime anonymity to witnesses, victims or alleged victims. Such orders cannot protect a defendant.

In youth courts

Most alleged criminal offences committed by people under 18 are dealt with by the Youth Court (in Scotland by the Children's Panel), unless the matter is very serious, in which case it may be transferred to the Crown Court (in Scotland, the Sheriff Court).

Reports of proceedings in the Youth Court must not contain the name, address, school or any particulars likely to lead to the identification of anyone under 18 involved in the proceedings or contain a photograph showing them. Adults involved in Youth Court proceedings can be identified as long as this does not identify any young person involved in the proceedings.

These rules do not apply where a juvenile has been committed to the Crown Court (but see 'Section 39 Orders' below). Note that a Youth Court may lift these automatic restrictions in certain circumstances, but the under-18-year-old cannot waive the protection even if they actively want to be identified. Once a juvenile who has been involved in Youth Court proceedings reaches 18, the reporting restrictions no longer apply.

In adult courts

In all other courts, there is no automatic restriction prohibiting the identification of people under 18 involved in the proceedings. However, in many cases the court will make an order expressly banning information likely to lead to their identification. Such orders give the courts the power to ban the publication of a young defendant or witnesses’

name
address
school or other educational establishment they attend
place of work
still or moving picture

Any anonymity under such orders expires when a juvenile reaches 18. Similar legislation applies in Scotland.

Note: if a Magistrates' Court makes such an order and then commits the case to the Crown Court, that order will not apply to the proceedings before the Crown Court. The Crown Court would need to make its own order banning identification of the particular child.

Proceedings involving sexual offences

Victims of the vast majority of sexual offences (including male rape) are guaranteed anonymity by the law. Nothing may be published or broadcast which would be likely to lead members of the public to identify them. Anonymity remains in force for the lifetime of the victim, even where the allegation is withdrawn or the accused acquitted. However, in certain circumstances, magistrates or the trial judge may lift the automatic rule of anonymity. In addition, victims themselves can choose to waive their right to anonymity, if aged 16 years or over. Any such waiver must be in writing and not given under duress.

Except with respect to complaints by pupils against teachers (see below), there is no automatic legal anonymity for those accused in relation to sexual offences cases.

The situation in Scotland is different as there is no statutory restriction, but in practice press and broadcasters maintain anonymity for victims of sexual crime. This is a prerequisite for remaining in court when victims are giving evidence.

Any content creator wishing to make a film in this area must seek advice from the content lawyer/compliance advisor before approaching victims.

Proceedings involving female genital mutilation (FGM)

It is a criminal offence to publish anything which would be likely to lead members of the public to identify a person as an alleged victim of FGM. Again, the alleged victim can waive their anonymity if they are over 16, the consent is in writing and they are waiving anonymity freely.

Again, any content creator wishing to make a film in this area must seek advice from the content lawyer/compliance advisor before approaching victims.

Slavery, human trafficking and domestic servitude

The Modern Slavery Act 2015 also imposes a lifetime ban on reporting any matter likely to identify the victim of a human trafficking offence whether abroad or in the UK. Exploitation can include domestic servitude, sexual exploitation, forced labour, removing organs, securing services by force, threats or deception and securing services from children or vulnerable people.

Victims (if they are 16 or older) can provide explicit waivers in writing to give up their right to anonymity.

Any content creator wishing to make a film in this area must seek advice from the content lawyer/compliance advisor before approaching victims.

Complaints by pupils against teachers

It is a criminal offence under the Education Act 2011 to publish anything which would identify a teacher at a school who has been accused of a criminal offence by or on behalf of a pupil at the school, if that teacher has not been charged or a warrant issued in connected with a criminal offence. The media can identify the teacher in such circumstances if the teacher consents freely and in writing.

Reporting family proceedings

The rules on reporting Family Courts are currently being reviewed. From 30 January 2023, journalists and legal bloggers can report from Family Courts in Cardiff, Leeds and Carlisle as part of a 12-month pilot which began on 30 January, subject to rules of anonymity. See here for details on the reporting pilot.

Currently, family proceedings, for example proceedings relating to the care or supervision of children, or to arrange contact between parents and children, can be heard in a number of courts. Generally speaking, children cannot be identified in connection with the proceedings and documents prepared for such proceedings, and the information they contain, cannot be released to journalists or used by them without the permission of the court.

Where family proceedings in any court are held in private, which they mostly are, then even further restrictions apply. Section 12 of the Administration of Justice Act 1960 states that whilst publication of information about proceedings held in private is not in itself a contempt, it is a contempt to report on proceedings in private.

Wardship

Wardship proceedings are usually heard in private and very little can be reported – the child cannot be identified as being a ward of court and on no account, regardless of whether or not the child was identifiable in the content, can any report of the proceedings be included.

However, in the absence of an injunction preventing it, there would be nothing to prevent an interview with a child who was a ward of court – as long they weren't identified as being a ward of court or wardship proceedings. In theory, there would be nothing to stop a child, who was a ward of court, appearing on a reality television show or game show, as long as no reference was made to the fact they were ward of court or to any legal proceedings concerning the wardship. Similar restrictions apply in adoption proceedings. This is obviously subject to the relevant parental consents being in place.

Note: only some restrictions cease to apply when the case has concluded, and often the court may make an order for the ongoing anonymity of a child. Always seek advice from the content lawyer/compliance advisor when considering content on concluded wardship cases.

Divorce proceedings

Divorce cases these days are rarely contested but where they are, they are subject to certain reporting restrictions.

Refer to your content lawyer/compliance advisor. Reporting legal proceedings is a complex area of law and advice must be sought at an early stage and certainly before filming begins.

FAQs

: Contact your content lawyer/compliance advisor immediately. Clearly, the repercussions of such an event would depend on the particular circumstances, for example the type of offence for which the contributor was arrested, the nature of the programme, and the nature of the contribution.
: Again, it would depend entirely on the particular circumstances – the type of offence for which the potential contributor has been arrested and bailed, the nature of the programme and the proposed contribution. Contact the content lawyer/compliance adviser immediately for advice.
: In all likelihood, yes, but in such circumstances content-makers must seek advice from the content lawyer/compliance advisor. The fact that the subject of the content has been convicted means that the jury element of the legal proceedings is concluded and accordingly the risk of prejudice is diminished. However, there could potentially be other reasons why the programme could not be broadcast, for example, proceedings in respect of other criminal charges may remain 'active', or there may be a specific court order preventing publication of certain details of the case.
: Potentially yes. Under the Contempt of Court Act 1981, appeal proceedings become "active" from the time of application for leave or the lodging of a notice of appeal. However, because appeals are heard by professional judges, rather than jurors, and tend to concern points of law and procedure, the risk of prejudicing such proceedings is generally much lower.
: There is no exhaustive list of what constitutes "legal proceedings" but it includes, for example, the main courts, e.g. Magistrates' Court, County Court, High Court, Appeal Courts and also inquests, military courts and industrial tribunals. Hearings before the Professional Conduct Committee of the General Medical Council are not included.
: Newspapers and television news programmes often publish/broadcast fair and accurate reports of ongoing trials. This means that once a trial has started, the newspaper or news programme prepares a report outlining that day's evidence and proceedings. Such reports are only permissible (i.e. they do not amount to a contempt) where they are contemporaneous, are a fair and accurate summary of the day's proceedings and relate to proceedings held in public. The reports must be very carefully written and not distort what was said. Often the newspaper/news programme will cover each day of the trial. Clearly, most other types of television programmes (i.e. non news programmes) are simply unable to report in this way (fairly, accurately and contemporaneously). However, if content creators do wish to report on current court cases, they must seek advice from the content lawyer/compliance advisor.
: It is a criminal offence for the media to identify the victims of most sexual offences. However, the victim (if 16 or over) can waive their right to anonymity as long as consent is given freely and in writing. Always seek advice from the content lawyer/compliance advisor.
: In short, we must do whatever is necessary to ensure that the person is not identifiable. Visually, this may mean pixilating the person's face or even more of their image (if they have some distinctive feature, for example a particularly unusual hair style); filming the person in silhouette; or altering their voice or even replacing it with an actor’s voice. We must be very careful about exactly what information we broadcast about the person, taking into account what information is already in the public domain, to avoid jigsaw identification.

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