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Tactics for challenging reporting restrictions are back in the spotlight after a judge controversially gagged reports of a paedophile’s case at Croydon Crown Court.

Judge Warwick McKinnon prohibited the press from identifying a man sentenced for making and possessing child porn pictures.

He said he wanted to protect the privacy and welfare of the defendant’s school-age daughters who might be ill-treated by their peers if named in reports.

However, the girls were not actually involved in the case, so were ineligible for an anonymity order under S39 of the Children and Young Persons Act 1933.

A banning order was initially made by a different judge under S4(2) of the Contempt of Court Act. However, Judge McKinnon refused to lift it when asked by a freelance reporter.

Mirror Group Newspapers sent written submissions pointing out that a S4(2) order could only be used to impose a temporary gag, not a permanent one.

The judge then agreed to revoke the original order but immediately replaced it with a permanent gag under S11 of the Act, remarkably banning any identification of the girls and any identification of the adult defendant.

Various national media organisations went to the expense of instructing counsel. They told the judge that a S11 order could not validly ban the publication of information which had already been given in open court, such as the name of the defendant and the fact he has two daughters.

The judge reserved his ruling to allow time for representations from lawyers on behalf of the daughter, and meanwhile kept the order in place.

Journalists experience similar, if less prolonged, battles on a daily basis in courts across the country.

So, what’s the best way to challenge such restrictions?

Making representations before the case ends is key, otherwise the opportunity for such cost-effective intervention is lost.

Magistrates are usually willing to consider oral representations from reporters as well as written submissions from publishers’ solicitors. If there’s time – for example, where a case is adjourned before being concluded – and the story is worth the candle, instructing counsel to make oral submissions may be worthwhile.

If a bench still won’t budge, the media can apply to the High Court for judicial review of the magistrates’ order. Such an application must be made “promptly”, and in any event within three months of the relevant order.

The High Court can quash a reporting restriction if magistrates have exceeded their powers or made an irrational order.

However, judicial review can be costly and the outcome uncertain. If magistrates arrived at their decision by exercising a discretionary power (for example, under S39 of the Children and Young Persons Act 1933) and took into account all relevant considerations, the High Court is unlikely to overrule them. In practice, few such judicial review applications are made, no doubt because of the costs, which are unrecoverable even if a challenge is successful.

County and Family Courts’ orders can also be challenged by judicial review.

A different appeal procedure applies to reporting restrictions in the Crown Court in cases being tried on indictment. Here, the media have a statutory right of appeal to the Court of Appeal under S159 of the Criminal Justice Act 1988, if that court grants permission.

The right of appeal relates to any order restricting the publication of a report of a trial on indictment and to any order restricting public access to such proceedings. Cases may be stayed while the appeal is heard.

The Court of Appeal also has power to confirm, reverse, or vary a restriction imposed by the Crown Court and make any costs order it thinks fit.

Again, outcomes are unpredictable and costs high, but if timely and determined representations are made – and particularly if publishers club together, as in the Croydon case – the right result can be achieved.

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To contact Tony Jaffa or Nigel Hanson telephone 0800 0731 411 or e-mail [email protected] or [email protected]

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