As my colleague reported on HTFP back on April 7, the main changes are:
• Orders under S.39 of the Children & Young Persons Act 1933 now only relate to civil and family courts, and not criminal courts (with a few exceptions). The section has also been widened to include online publications, as well as print and broadcast.
• S.45 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA) can be used to give under 18s anonymity in criminal proceedings, including defendants (except in the Youth Court, where automatic restrictions apply) – this anonymity still expires upon the individual turning 18.
• S.45A of the YJCEA gives Judges the power to grant lifelong anonymity to a victim or witness (but crucially, not a defendant) who is under 18 at the time the proceedings commenced.
So, how much have we seen of these changes? The answer – not a great deal.
In the majority of cases, Magistrates and Judges are still using S.39 orders in criminal proceedings – which is obviously incorrect. However, as we have said before, invalid orders must be adhered to until they are challenged and overturned.
It seems that the message regarding the changes has not filtered down to many of the regional courts, so you should still expect to see a great variation in the knowledge of court staff when it comes to the new orders.
In reality, a challenge to a S.39, purely on the basis that it should now be a S.45, will have two possible outcomes. The first is that the Judge or Magistrate will shrug his or her shoulders and leave the S.39 order in place, and the second is that he or she will put a S.45 in place instead. Either way, other than demonstrating your superior legal knowledge, your challenge will not make a great difference in practical terms.
Of the few S.45 orders that we have seen, the usual defects have still been present. For example, S.45 orders being used in relation to minors who are not ‘concerned’ in the proceedings, and orders being put in place in relation to deceased minors. Such orders are obviously challengeable.
It is worth remembering that as a general rule, the Magistrates’ Court cannot bind a higher court, so orders put in place in the Magistrates’ Court do not travel to the Crown Court. If a Crown Court Judge thinks that an order is needed, he or she must put a new one in place.
Since the changes came into force, the Judicial College has updated its guidance, entitled “Reporting Restrictions in the Criminal Courts, April 2015″ – this outlines the new reporting restrictions and the matters that should be taken into account when putting an order in place. This document remains key when court reporters are challenging anonymity orders.
There is no doubt that the law regarding reporting restrictions needed updating, but our hope was that the changes would also provide greater clarity and consistency in relation to anonymity orders. Unfortunately, to date, we have not seen any evidence of this.