The principle of open justice is the well-established starting point for reporting the criminal courts. The judiciary understands just as well as the press that justice must be seen to be done, as much to maintain the public’s confidence in the administration of justice, as to defend freedom of expression.
This means that when the courts impose a discretionary reporting restriction, the restriction must justified, be proportionate, and no more than necessary for the purpose of the restriction itself.
We are regularly asked to assist newspapers in challenging restrictions. As a handful of recent cases illustrates, judges in the criminal courts are frequently asked to impose reporting restrictions inappropriately. Sometimes, a fiercely protective defence counsel will request an order to be give anonymity to their client, or a prosecution counsel will want to protect a witness. Occasionally, judges themselves impose reporting restrictions because they are unfamiliar with the legal limits of their own powers, or of the legislation itself.
Last month, five adults and three juveniles appeared at Croydon Magistrates court in connection with a teenage asylum seeker who was seriously injured when set upon by a crowd in the town centre. The CPS asked the chairman of the bench to make a s.45 Order giving anonymity to the juvenile defendants and victims, including Reker Ahmed the victim who had already been widely named online.
S.45 orders prevent the publication of information that identifies a child or young person as being a victim, witness or defendant in the proceedings. They cease to have effect when the young person turns 18.
PA reporter Harriet Line challenged the order on behalf of the press. The district judge agreed with her that there was no point in granting anonymity to Ahmed whose identity was already widely known. However, he made an order that two under-18 year olds with him should not be named. But, when journalists checked the details of the two, it emerged that one was 18 and the other 21.
This case demonstrates that nothing should be taken for granted when it comes to discretionary reporting restrictions. It is important to get hold of the order from the court and scrutinise whether it has a sound legal basis. For example, an order made at the Magistrates’ Court does not bind the Crown Court. If the judge at Crown Court wishes to grant anonymity to an under 18 year old, a fresh s.45 order must be made.
Another area worth scrutinising is the protection of witnesses. Last month, the CPS applied for an anonymity order in the case of a witness in a blackmail case. The CPS argued that naming the witness (who was the victim) would cause him embarrassment and thereby diminish the quality of his evidence.
S.46 gives the court the power to restrict the reporting of adult witnesses, but only if the court is satisfied that the quality of the evidence, or the level of co-operation of the witness, is likely to be diminished by reason of fear or distress should the witness be identified. Clearly, s.46 exists for reasons of witness intimidation, not to prevent embarrassment. In the blackmail case, the judge refused to make the s.46 order, and criticised the CPS for failing to meet the evidential requirements to demonstrate that the witness’s evidence would be poor if he was identified.
The court also requires a high level of justification to withhold details such as a defendant’s name and/or address from being heard in open court, for example to prevent the risk of death or serious injury if he is convicted. The court can use its powers under s. 11 of the Contempt Act 1981 to make an order restricting the details reported, but this must be done at the beginning of a case, not at the end when the details have already been heard during the proceedings. And if the court is to deviate from the principle of open justice, the level of evidence must be high.
The Judicial College’s Guidance “Reporting Restrictions in the Criminal Courts” makes it clear that s.11 should not be invoked to spare the defendant’s feelings, prevent reputational or financial damage, or even to prevent identification of the defendant’s children. It is not enough for the defendant to fear for their safety or for that of their family – if that was the case, few defendants in serious cases would be identified.
In a recent case, an Iranian sex-offender failed to convince the court to give him anonymity under s.11, although he claimed he would be persecuted if he were deported. Rejecting his application, Lord Bracadale agreed with the press that reporting a case is of more interest to the public if the individual is named. The person applying for anonymity must convincingly demonstrate that the restriction is necessary. The fact that the identity of the defendant was already in the public domain, and that the defence did not demonstrate a serious risk of violence had his identity become known, meant that there was no justification for deviating from the principle of open justice.
My tips for challenging discretionary reporting restrictions include:
• Obtain a copy of the Order from the court;
• Consider, or get advice on, the legal basis of the restriction. There is little point in a generalised submission – the challenge must be made on the precise legal basis of the restriction itself. This will include considering whether the judge in fact has the power to grant the restriction;
• Act quickly. It is better to make a submission when the defence or prosecution are requesting a reporting restriction, than to challenge it once it is made;
• Be realistic – it is difficult to challenge a section 45 restriction on naming a child unless there are very good reasons; and
• Ensure the challenge is made well before the end of the hearing. Once the case is disposed of, the judge cannot discharge or vary an order.