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 or who are witnesses in proceedings and, also, the victims of sexual offences cannot be identified.
This is a complex area of law and legal advice must be sought 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.
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 parties, 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 to publish the material to the public would frustrate or render impracticable the administration of justice, rather than where a witness or defendant simply prefers to remain anonymous.
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, arrangements as to bail. Programme-makers must always seek advice from the programme lawyer 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. See 'Crime'.
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, or school or any particulars likely to lead to the identification of anyone under 18 involved in the proceedings as defendant or witness or contain a photograph showing any such juvenile. Adults involved in Youth Court proceedings can be identified as long as, in doing so, this does not identify any juvenile 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 juvenile cannot waive the protection even if he or she actively wants to be identified. Once a juvenile who has been involved in Youth Court proceedings reaches 18, the reporting restrictions no longer apply.
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 identification and certain other information likely to lead to their identification. Such orders are commonly referred to as 'Section 45 Orders' in criminal cases named after the section of the Youth Justice and Criminal Evidence Act 1999 which gives the courts the power to prohibit the publication of a defendant or juvenile witness’s identifying details, specifically :
- his name,
- his address,
- the identity of any school or other educational establishment attended by him,
- the identity of any place of work, and
- any still or moving picture of him.
and often called 'Section 39 Orders' in other cases, named after the section of the Children Act 1933 which give the courts the power to direct that:
"... no report of the proceedings shall reveal the name, address, or school or include any particulars likely to lead to the identification of any child or young person concerned in the proceedings as being the person by or against or in respect of whom the proceedings are taken, or as being a witness; and, no picture shall be published of any child or young person so concerned".
Note: if a Magistrates' Court makes a Section 39 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. Section 39 anonymity expires when a juvenile reaches 18. Similar legislation applies in Scotland.
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/withholding different information so that, when everything published is taken together, the juvenile is identifiable.
In order to avoid jigsaw identification, the Press Complaints Commission's 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; and
- 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.
Lifetime Anonymity Involving Witnesses or Victims/Alleged Victims Under 18
A criminal court can impose a Section 45 A 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.
Anti-social Behaviour Injunctions Orders ("ASBIs")
ASBIs are part of the civil courts' armoury to deal with anti-social behaviour and can be obtained even where anti-social behaviour has not resulted in a criminal conviction. In relation to juveniles, the police or a local authority may apply to magistrates to impose an ASBI in respect of certain anti-social behaviour or to prevent juveniles from being in particular locations. In the Youth Court, there is no automatic prohibition on identifying the juvenile in relation to the decision apply for or to impose an ASBI but the Youth Court may deem it appropriate to impose a Section 39 Order specifically in relation to the ASBI.
Criminal Behaviour Orders (“CBOs”)
These can be obtained by the prosecution to operate against a convicted person in a criminal case where anti-social behaviour has resulted in a criminal conviction.
Where a CBO has been made the automatic anonymity in the Youth Court will lapse to allow reporting of the CBO but may still apply in relation to the original Youth Court proceedings which gave rise to the conviction.
Of course the court may make a Section 39 Order prohibiting identification of the recipient of the CBO if it considers it appropriate.
Alternatively, the Youth Court may lift all reporting restrictions thereby enabling identification of the juvenile in relation both to the crime and ASBO.
If a juvenile breaches the terms of an ASBO this will normally be dealt with by the Youth Court and the normal automatic restrictions on identification do not apply. However, the Court may impose a section 39 anonymity order.
"The Home Office announced in May 2012 that it plans to replace ASBOs with the Criminal Behaviour Order (CBO) and a Crime Prevention Injunction (CPI)"
Proceedings Involving Sexual Offences
Victims of the vast majority of sexual offences (including male rape) are guaranteed anonymity by the law, under the Sexual Offences (Amendment) Act 2000, Sexual Offences (Amendment) Act 1992 and the Sexual Offences (Amendment) Act 1976 (as amended by the Criminal Justice Act 1988). Once the allegation has been made that a person has been the victim of such an offence, no matter may be published or broadcast which would be likely to lead members of the public to identify that person as someone against whom such an offence has been alleged to have been committed. 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, without the consent of the court. Any broadcaster relying on this must seek the victim's consent to waive his/her right to anonymity in writing and such consent must not be 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.
Where a breach of these reporting restrictions is alleged, it would be a defence to prove that the person responsible for the broadcast was not aware or had no reason to suspect that publication was in breach of the sexual offences anonymity provisions. Note: 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 being allowed to remain in Court when victims are giving evidence.
Proceedings Involving Female Genital Mutilation (FGM)
Section 4A and Schedule – of the Female Genital Mutilation Act 2003 makes it 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. The anonymity applies “where an allegation has been made”that an FGM offence has taken place. It is a defence to prove that the publication was one in respect of which the victim had given “written consent to the appearance of matter of that description”. A consenting victim must be over 16 and no person can have “interfered unreasonably with the peace and comfort of the victim with a view to obtaining her consent.”
Any programme maker wishing to make a film in this area must seek legal advice before approaching victims.
Complaints by pupils against teachers
It is a criminal offence (Section 13 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 with a criminal offence. The media can identify the teacher in such circumstances if the teacher consents freely and in writing. The prohibition ends when a justice of the peace issues a summons or warrant, when a public prosecutor issues a written charge in respect of the offence or when a person is charged with the offence after being taken into custody without a warrant.
Reporting Family Proceedings
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: the Magistrates' Court, the County Court or the Family Division of the High Court (or Court of Appeal and Supreme Court, on appeal). Different rules apply depending on which court the proceedings are taking place in but the effect is predominantly the same - in general 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.
In Magistrates' Courts Section 97 of the Children Act 1989 makes it an offence to publish any material which is intended or likely to identify any child under 18 as being involved in the proceedings. apply to reporting family proceedings which, when combined, effectively mean that the child cannot be identified and few details of the case can be given. Section 97 makes it an offence to publish any material which is intended or likely to identify any child under 18 as being involved in the proceedings.
The restrictions of Section 97 also apply to family proceedings in the County Court and Family Division of the High 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 involving, amongst others, wardship, cases involving the Children Act 1989 and other proceedings relating wholly or mainly to the maintenance or upbringing of children.
Wardship proceedings are usually heard by County Court or High Court judges in private and therefore Section 12 of the Administration of Justice Act 1960 applies. Section 97 also applies whilst the case is on-going. Section 12 prohibits publication of any information about proceedings in private relating to children. The effect of Section 12, when combined with the other legal restrictions that apply (Section 97 CA 1989 above), means that very little can be reported - the child could not be identified as being a ward of court or as being involved in Children Act proceedings and on no account, regardless of whether or not the child was identifiable in the programme, could any report of the proceedings be included.
Note however that, in the absence of an injunction preventing it, there would be nothing to prevent filmmakers filming and interviewing a child who was a ward of court - as long he/she wasn't identified as being a ward of court or connected with Children Act 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.
Note: the restrictions imposed by Section 97 Children Act 1989 cease to apply when the case has concluded, although an order may be made by the Court at that point continuing anonymity for the child, if it considers there is a continuing welfare issue justifying such an order. Restrictions imposed by Section12 of the Administration of Justice Act 1960 however continue permanently unless varied by the Court.
Divorce cases these days are rarely contested but where they are, they are subject to certain reporting restrictions. Refer to the programme lawyer.
Reporting legal proceedings is a complex area of law and legal advice must be sought at an early stage and certainly before filming begins.
Slavery, Human Trafficking and Domestic Servitude.
The Sexual Offences (Amendment Act) 1992 is extended by the Modern Slavery Act 2015 section 2 and now imposes a lifetime ban on reporting any matter likely to identify the victim of a human trafficking offence. These offences do not need to be sexual and involve a person arranging or facilitating the travel of another person with a view to the victim being exploited. They can take place abroad, between a foreign country and the UK and also within 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 programme maker wishing to make a film in this area must seek legal advice before approaching victims.