There seems to be something a bit odd going on in the courts at the moment.  Over the last couple of weeks I’ve been involved in challenges to a number of Section 11 Contempt of Court Act 1981 Orders and I have also become aware of other, similar Orders which for a variety of reasons were not challenged but which I believe should not have been made.

That all sounds quite legalistic, so what am I talking about?  Section 11 of the Contempt of Court Act gives courts the power to ban the media from publishing a particular detail – most commonly, this is a defendant’s name or address – in reports of the proceedings.

So what’s going on?  Across the country, there appears to be a current willingness, on the part of Magistrates’ Courts in particular, to impose S. 11 Orders for reasons which do not satisfy the strict and limited criteria necessary for these exceptional Orders to be applied.  For example:

• Hold the Front Page carried an article last Tuesday entitled “Newspaper overturns naming ban in exploitation case”, in which the Leicester Mercury mounted a successful challenge which resulted in five S. 11 Orders being lifted.  The week before, the Mercury had had similar success in challenging another batch of unnecessary S.11 Orders.

• Bristol Magistrates’ Court imposed a S. 11 Order with the Order itself stating that the “purpose of this order is the Jusices [sic] are satisfied that if the details are reported it would likely lead to significant impact and emotional distress upon the victims families who have not yet been advised by police.” 

How can past experience help us out now?  It is clear from previous cases that any departure from the general principle that justice must be done publicly, via the imposition of a S.11 order, will be justified only in rare and exceptional circumstances, and only when the administration of justice would be frustrated if the Order was not made.

It is not enough for there to be reasons of convenience or concerns about the defendant’s or their family’s feelings or comfort.

The types of cases in which S.11 Orders have been approved relate to the protection of  blackmail victims from identification, and the protection of female witnesses in a pornography and procuring trial.  It has also been suggested that “supergrasses” should be afforded the privilege of anonymity in order to encourage others to testify.

Other examples of cases where S.11 Orders have been thought to be appropriate involve matters of national security.

It is clear from these limited types of case that very special circumstances are required for S.11 Orders to be made, and S.11 is not to be used in ‘ordinary’ or unexceptional cases.

The onus is on us to be vigilant and scrutinise the courts’ imposition of such orders.  It’s no secret that the regional press are short of resources at the moment but often all it takes is a letter, or in the Leicester Mercury’s case, an appearance in court by the editor, for the judiciary to appreciate the proper purpose of S. 11 Orders.

If we allow the principle to become eroded and not challenge improperly made Orders, we will find ourselves at the bottom of a very steep and slippery slope from where it is hard to climb.