Last week, the Press Association argued before the Court of Appeal that a reporting restriction giving anonymity to a rapist should be overturned.

The defendant in question had been convicted of rape and jailed for seventeen and a half years.

The reporting restriction was imposed at the end of a Crown Court trial after the Court heard from the Crown Prosecution Service that the victim was afraid that if the defendant’s name and details about him were reported, she would be identifiable to family members and the public at large.

The Press Association’s legal editor, Mike Dodd, argued that the Crown Court had no power to make an order of this nature.  He said there were three matters of concern for the Press Association:

• The Court did not have the statutory power to make this Order.
• The Order was redundant as the victim would, in any event, be afforded the protection provided by the Sexual Offences (Amendment) Act 1992 which gives lifelong anonymity to the victims of sexual offences.
• The issue of reporting restrictions generally in the light of the willingness of some Crown Courts to make Orders which went beyond their powers or were simply unnecessary.

The three Court of Appeal Judges heard that the Crown Court had no “inherent jurisdiction” to make an Order such as this.  Significantly, there had been no orders in place during the trial.  It was only after the conclusion of the trial that this restriction was imposed.

The Judges’ attention was drawn to comments made by Lord Judge, Lord Chief Justice, in Re Trinity Mirror ([2008] QB 770 CA), who said:

“There is no inherent jurisdiction to do so on the basis that it is seeking to achieve a desirable, or indeed a ‘just and convenient’ objective.

“Unless the proposed injunction is directly linked to the exercise of the Crown Court’s jurisdiction and the exercise of its statutory functions, the appropriate jurisdiction is lacking. ”

Frustratingly, we regularly see instances where Crown Courts make reporting restrictions which over-reach their jurisdiction.

Reports of such events frequently appear on HoldtheFrontPage.  By highlighting and challenging such orders, hopefully they will become fewer and further between.

Sections 1 and 2 of the Sexual Offences (Amendment) Act 1992 give broad protection to victims of sexual offences.  The Act prohibits the publication of “any matter likely to lead members of the public to identify” a person as being the victim of a sexual offence.

It clarifies that the sexual offence does not need to be proven for the protection to apply – the alleged victim of an unproven offence is also entitled to anonymity.

In relation to the case in question, the provisions of the Act would protect the victim from her concerns about being identifiable without the need for additional reporting restrictions.

In addition, the Act carries a strong deterrent for editors – breaching it is an immediate criminal offence.

The Press Association argued that it was the responsibility of journalists and editors, rather than judges, to ensure that victims of sexual offences and alleged sexual offences were afforded  the anonymity to which they are entitled.

In response to the Press Association’s submissions, the CPS agreed with the points about jurisdiction and the role of the Act but argued that the court should have the power to give the media “guidance and direction” about reporting enabling the trial judge to express an opinion as to what details should not be reported in order to preserve the victim’s anonymity.

The outcome of this hearing is perhaps somewhat troubling.  After a brief retirement, it was announced that the court was reserving judgment to seek assistance from the Attorney-General who will instruct counsel to make written submissions on the question of the jurisdiction to make orders, and the inherent jurisdiction.

It appears as though the point which is to be clarified is a more general one than whether a Crown Court has the specific ability to make a reporting restriction as in this instance.

However, particularly because this question originated in a case involving press freedom, the court’s final decision will almost inevitably impact upon the work of court reporters.

Watch this space – perhaps with fingers crossed.