Crime reporters are well aware that reporting restrictions in the criminal courts are a minefield. Some restrictions are automatic, some are discretionary, others are inconveniently dotted around a myriad different Acts and regulations and some hide in unexpected places waiting to trip you up, (for example the Education Act).
Helpfully, the Judicial College provides useful guidance which was first published in April last year, and has now been updated.
The updates include a section on the civil and criminal Injunctions which replace ASBOS, and a handy flow chart for understanding automatic and discretionary reporting restrictions.
It is worth remembering that this guidance is not a self-serving treatise on open justice on the part of the newspaper fraternity. The Judicial College trains judges and court officials, and the guidance is as much for magistrates and crown court judges as it is for the media.
The guidance carries the full weight of the Lord Chief Justice, who, in his foreword, emphasises the general rule that “justice should be administered in public” and subject to public scrutiny. His comment is worth mentioning when challenging discretionary reporting restrictions Orders as it means Magistrates and judges must ensure both that there is a legal basis for their order, and that any deviation from the open justice principle is necessary on the basis of clear and cogent evidence.
The guidance sets out the legal basis for automatic and discretionary reporting restrictions, and explains the procedure for Youth Courts and for criminal proceedings held in private. It also sets out the different restrictions on pre-trial hearings and other important restrictions to bear in mind when court-reporting, such as lifelong anonymity for victims and alleged victims of sexual offences, and for victims of genital mutilation.
However, surprisingly, there are some restrictions which do not feature in the guidance, which should not be forgotten. Firstly, the Sexual Offences (Amendment Act) 1992 has itself been amended by the Modern Slavery Act 2015, which gives lifelong anonymity to the victims of human trafficking, not just for sexual crime but for a wide range of crimes including organ donation and forced labour (see Law Column December 15, 2015).
Secondly, beware of reporting on children who are the subject of adoption or care proceedings in the Family Court. It is contempt of court to publish information relating to on-going proceedings in the High Court concerning minors or Children Act proceedings held in private. The Children Act also precludes publishing material that is likely to identify children involved in care and adoption proceedings.
S.39 orders, restricting the identification of victims, witnesses or defendants under 18 in criminal cases were replaced by S.45 orders in April last year. The S.39 order is often still used by magistrates who have not caught up with the changes to the legislation. Nevertheless, even if the order is defective, it cannot be ignored.
S.39 orders are still relevant in civil cases including when the orders, formerly known as ASBOS, are being requested. ASBOs in civil proceedings have been replaced by injunctions. A breach of an injunction is a civil offence, and, when committed by an adult, can be reported. However if an Injunction is sought against an under-18, a court can impose a discretionary reporting restriction under S.39.
Finally, it is important to remember that when a reporter wishes to challenge a discretionary order in the Crown or the Magistrates’ court, this must be done before or during the trial, because once the trial has concluded the judge no longer has jurisdiction of the case and is not able to consider a challenge to the order.