Reporting Legal Proceedings

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'.

 

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, 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.

 

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 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 :

1. his name,
2. his address,
3. the identity of any school or other educational establishment attended by him,
4. the identity of any place of work, and
5. 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.

 

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/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:

1. the child must not be identified;
2. the adult may be identified;
3. the word 'incest' must not be used where a child victim might be identified; and
4. 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.