“Open justice is a hallmark of the rule of law. It is an essential requisite of the criminal justice system that it should be adminstered in public and subject to public scrutiny. The media play a vital role in representing the public and reflecting the public interest. However, as is well known, there are some exceptions to these principles. Difficulties and uncertainty can sometimes arise in ensuring they are correctly applied and observed.

So says the Lord Chief Justice, Lord Thomas of Cwmgiedd, introducing this fourth edition of guidelines [PDF here] on “Reporting restrictions in the criminal courts”, issued by the Judicial College (a sort of school for judges), the News Media Association, Society of Editors and the Medial Lawyers Association.

[UPDATE 17.8.16 The Guidelines have now been revised to provide better guidance on reporting of cases involving children and young persons. This post has been revised to reflect and link to the new version.]

The Guidelines aim to assist anyone who may be thinking of doing so to understand how and why they may be restricted or prevented from reporting certain matters in relation to criminal proceedings.

They have been updated to cover recent developments, such as the use of “live, text-based communications from the court” (which covers tweeting and texting from within the court) as governed by a 2015 practice direction; and recent changes in the law, such as provisions for the anonymity of victims of Female Genital Mutilation in court proceedings covered by section 71 of the Serious Crime Act 2015 (which came into force on 3 May 2015).

Relevance to readers of this site

Although restrictions on the reporting of criminal proceedings might not seem relevant to family justice or the Court of Protection, there may be a crossover in some cases. For example, criminal proceedings involving allegations of domestic violence or sexual abuse of children could well have some impact on, or give rise to, further proceedings in the Family Court. Reporting what happens in one court could impact on the conduct of proceedings in the other.

Moreover, although the guidelines are primarily concerned with reporting of criminal proceedings by the traditional media, which means “press, radio, television, press agencies and online media”, they also apply to “social media websites such as Twitter and Facebook”. There isn’t any more detailed definition of what this means, but when it refers to a “social media website” it must be assumed to mean the pages on which an individual account holder’s content is displayed, and for which that person is responsible.

In other words, they are not just saying it is for Twitter or Facebook or the website operator to apply the rules. It is for individual account holders who post content and who, in so doing, “publish” it. And it covers all social media sites – so Instagram, LinkedIn etc and any new ones that spring up, as well as discussion groups and forums on the Internet, and indeed any printed newsletter or leaflets distributed to other readers (and thus published) in any format. And, of course, blogs.

The guidelines are fairly detailed because they are also designed for reference by the courts – Magistrates and the Crown Court – and are the sort of thing editors of local newspapers keep by their desk. But they include a set of simple “revision guide” panels with bullet points. These cover the essentials, and are worth reproducing here, below, as a quick reference guide for readers of this blog. Should you need more detail, please refer to the full PDF, which also identifies the individual laws (either the court’s inherent jurisdiction to regulate its own procedure, or one of a number of individual statutory provisions) under which the restrictions can be made.

The quick reference guide

[UPDATE: newly added list items are prefaced with <new>.]

The open justice principle

• The general rule is that the administration of justice must be done in public.
• The public and the media have the right to attend all court hearings and the media is able to report those proceedings fully and contemporaneously.
• Any restriction on these usual rules will be exceptional. It must be based on necessity
• The burden is on the party seeking the restriction to establish it is necessary on the basis of clear and cogent evidence.
• The terms of any order must be proportionate – going no further than is necessary to meet the relevant objective.

Hearings from which the public may be excluded

• The general rule is that all court proceedings must be held in open court to which the public and the media have access.
• The court may hear trials in private in exceptional circumstances where doing so is necessary to prevent the administration of justice from being frustrated or rendered impractical.
• Where lesser measures such as discretionary reporting restrictions would prevent prejudice to the administration of justice, those measures should be adopted.
• Where is it necessary to hear parts of a case in private the court should adjourn to open court as soon as it is no longer necessary for the public to be excluded.
• The embarrassment caused to witnesses from giving evidence in open court does not meet the necessity test.
• <New> There is a statutory exception to the open justice principle for proceedings in the Youth Courts, which members of the public are prohibited from attending.

Automatic reporting restrictions

• There are several automatic reporting restrictions which are statutory exceptions to the open justice principle.
• Victims of sexual offences are given lifetime anonymity which does not apply if they consent in writing to their identity being published. Their anonymity can also be lifted by the court in other limited circumstances.
• Reports of pre-trial hearings in the Crown Court cannot generally be published until after the trial is over.
• Reports of preparatory hearings in the Crown Court in long, complex or serious cases, complex fraud cases and unsuccessful dismissal applications are also prohibited (apart from a limited range of factual matters) until the trial is over.
• Similar restrictions apply in respect of sending and allocation proceedings in the Magistrates’ Courts.
• These restrictions on pre-trial proceedings lapse at the conclusion of the trial and may be lifted earlier where the court is satisfied that it is in the interests of justice to do so.
• Reports of special measures directions and directions prohibiting the accused from conducting cross –examination cannot be published until the trial(s) of all accused are over, unless the court orders otherwise.
• Reports of the prosecution’s notices of appeal against rulings and the courts’ decisions on whether to expedite the appeal, or, if not, to adjourn the proceedings or discharge the jury, cannot be published (apart from a limited range of factual matters) until the trial of (all) the accused are over, unless the court orders otherwise.
• The media is prohibited from publishing the name, address or school or any matter likely to identify a child or young person involved in Youth Court proceedings whether as a victim, witness or defendant.
• The Youth Court may lift the restriction in specified circumstances including where the child or young person is convicted of an offence and the court considers that it is in the interests of justice to do so.
• <New> The court must give great weight to the welfare of the child and it is wrong to dispense with the automatic anonymity for a juvenile as an additional punishment, or by way of “naming and shaming”.

Procedural safeguards

• Where automatic reporting restrictions already provide protection it is generally not necessary to impose additional discretionary restrictions.
• Care must be taken to ensure that the statutory conditions for imposing a discretionary reporting restriction are met.
• Where the statutory conditions are met, the court must make a judgment balancing the need for the reporting restriction against the public interest in open justice and freedom of expression.
• The need for any order must be justified by clear and cogent evidence and the terms of any order. must be proportionate, going no further than is necessary to meet the statutory objective
• The media must be given an opportunity to make representations about discretionary reporting restrictions.
• Orders should be put in writing as soon as possible.
• The media should be put on notice as to the existence and terms of the order.

Protection of under-18s

• Under section 45 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA) a criminal court may make an order preventing the publication of information that identifies a child or young person as being a victim, witness or defendant in the proceedings.
• This restriction applies to traditional print and broadcast media as well as online publications.
• The court must have regard to the welfare of the child or young person.
• A section 45 order ceases to have effect when the child or young person turns 18.
• The court may remove or relax the s.45 reporting restriction if satisfied that it imposes a substantial and unreasonable restriction on reporting and that it is in the public interest.
• Under section 45A of YJCEA a criminal court may make an order preventing the publication of information that identifies a child or young person as being a victim or witness in the proceedings during the course of their lifetime.
• The court must be satisfied that the fear or distress on the part of the victim or witness arising from such identification would be likely to diminish the quality of their evidence or their cooperation with any party to the proceedings.
• The court must also take into account the impact on the media’s ability to report the proceedings before making a section 45A order.
• The court may remove or relax the section 45A reporting restriction if satisfied that it imposes a substantial and unreasonable restriction on reporting and that it is in the public interest.

Protection of adult witnesses

• Under s.46 of the Youth Justice and Criminal Evidence Act a court may prohibit the publication of matters likely to identify an adult witness in criminal proceedings (other than the accused) during his lifetime.
• The court must be satisfied that 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.
• In exercising its discretion, the court must balance the interests of justice against the public interest in not imposing a substantial and unreasonable restriction on reporting of the proceedings.
• Excepting directions may be given, or the order revoked or varied at any stage of the proceedings, or written consent to identification may be given by the subject or, if under 16, by their parent or guardian.

Names and other matters withheld in court

• Where a court exercises a common law or statutory power to withhold a name or other matter from being given in evidence in open court, it may prohibit publication of that name or matter under section 11 of the Contempt of Court Act 1981.
• The court may only exercise its power to prohibit publication under s.11 where it has deliberately withheld that information from being given in open court.
• In order to have a common law power to withhold material from the public in court, it must be satisfied that, if the name or matter was to be heard in open court, it would frustrate or render impractical the administration of justice and that the order is necessary taking into account the public interest in open justice.
• Alternatively, there must be some other power to withhold the name or other material from the public in court. Section 11 does not give that power.

Postponement of fair and accurate reports

• Under section 4(2) of the Contempt of Court Act 1981 the court may postpone publication of a fair, accurate and contemporaneous report of its proceedings where that is necessary to avoid a substantial risk of prejudice to the administration of justice in those or other proceedings.
• The power is strictly limited to fair, accurate reports and contemporaneous reports of the proceedings.
• The court must be satisfied that a substantial risk of prejudice would arise from such reports.
• If the concern is potential prejudice to a future trial, in making that judgment, the court will bear in mind the tendency for news reports to fade from public consciousness and the conscientiousness with which it can normally be expected that the jury in the subsequent case will follow the trial judge’s directions to reach their decision exclusively on the basis of evidence given in that case.
• Before making a s.4(2) order, the court must be satisfied that the order would eliminate the risk of prejudice and that there is no less restrictive measure that could be employed.
• If satisfied of these matters, the court must exercise its discretion balancing the risk of prejudice to the administration of justice against the strong public interest in the full reporting of criminal trials.

Postponement of derogatory remarks in mitigation

• Section 58 of the Criminal Procedure and Investigations Act 1996 gives courts the power to postpone reports of certain assertions about named or identified persons that have been made in mitigation.
• The court must have substantial grounds for believing that the assertion is derogatory and false or that the facts asserted are irrelevant to the sentence.
• Orders must not be made in relation to assertions that were made during the trial or any other proceedings relating to the offence.

Anti-social behaviour orders 

• In criminal proceedings specifically for breach of an ASBO or proceedings in so far as they relate to making an ASBO order after conviction in the Youth Court (not the preceding criminal proceedings or other Youth Court proceedings) the normal rule prohibiting the identification of under-18s in the Youth Court does not apply.
• The Youth Court retains a discretion to impose such an order under s.39 CYPA, however there must be a good reason for such an order and Home Office guidance emphasises the importance of publicising the identity of persons subject to ASBOs.

[UPDATE What were formerly known as Anti-Social Behavious Orders (ASBOs) have been replaced under the Anti-Social Behaviour, Crime and Policing Act 2014 with a new regime of civil injunctions and Criminal Behaviour Orders. The Guidelines explain at p 31 how this affects the reporting restrictions, and include the following new version of the quick reference guide deleted above.]

Injunctions and Criminal Behaviour Orders

• There are no automatic reporting restructions which apply to proceedings for an Injunction, proceedings for breach of an Injunction, or proceedings for a Criminal Behaviour Order, even if those proceedings relate to a child or young person
• The Court retains the power to impose a discretionary reporting restriction to prevent the identification of a child or young person under s.39 CYPA 1933
• In criminal proceedings for breach of a Criminal Behaviour Order, there are also no automatic reporting restrictions that apply to a child or young person, but the Court has the power to impose a discretionary reporting restriction under s.45 YJCEA 1999.

BEAR IN MIND that the above is a simplified quick guide. If you are unsure about anything, you should (a) consult the full guidelines; (b) ask a lawyer, if you have access to one; or (c) post a comment below WITHOUT naming anyone or giving any details. (Note that comments are moderated, so they may not appear immediately or only in edited form, and anything unlawful or unsuitable will not be published. Also, we cannot give legal advice.)

Download the full Guidelines from the Judiciary website here.

Read the Judicial Office press release here.