We all know that the Editors’ Code of Conduct addresses aspects of court reporting – in its clauses relating to ‘Reporting of Crime’ and ‘Victims of Sexual Assault’ for example. But IPSO has now released additional guidance entitled ‘Guidance on Court Reporting’ – this does not supersede the provisions contained in the Code, but is designed to support journalists and editors in their decision making.

The Guidance makes useful reading for court reporters, but it also raises questions about how the Code and law interact.

The first section of the Guidance addresses accuracy, and specifically states that when the police or public bodies issue press releases, if there is “any doubt or there are apparent contradictions about significant information, it should be independently verified”. Obviously, if a reporter notices contradictions in a press release or it doesn’t tally with their own take on the case, it is essential to seek clarification – that is basic journalistic practice.

But, the Guidance then cites a specific IPSO ruling in which a publication was ruled against for breaching Clause 1(i) because it relied on a police press release, which contained inaccurate information regarding a sentencing hearing. Upon receiving the complaint the publisher contacted the police, who corrected the press release, and the publication published a clarification.

From a libel perspective the publisher is entitled to rely on a press release from the police or a public body and is protected by qualified privilege in doing so (as long as they are not acting with malice), subject to correcting any errors if they are confirmed by the body who issued the release.

This is a prime example of how the law and the Code have differing outcomes – there would not have been a successful libel claim in the cited case, but the publisher was found to be in breach of Clause 1(i).  It is therefore important for reporters and editors to remember to consider Code concerns as well as legal ones, especially in a time when some court cases are covered entirely through press releases, rather than attendance at court.

The Guidance goes on to offer advice regarding social media, and one of the points raised is whether comments should be turned off or disabled where possible to avoid a contempt risk – which is certainly good advice from a legal perspective.

The application of Clause 9, which addresses the identification of friends and family members of those accused of crimes, can be difficult.  It is easy to understand why relatives and friends are referenced in coverage, especially when they’re famous, but are they genuinely relevant to the story? The Guidance features two illustrative  cases.

The singer, Jamelia, complained to IPSO when articles named her as the step-sister of a man convicted of murder, but IPSO ruled that there was no breach because she was named in court and was cited by the defendant in a reporting restriction application – this meant she was genuinely relevant to the story.  The other case cited in the Guidance involved an article which included a photo of a woman being arrested, but her mother was visible in the background. IPSO ruled that the woman in the background was identifiable and Clause 9 had been breached because she had no relevance to the case.

The Guidance states that it is normally permitted to identify people who attend court in support of a Defendant.

As always, the application of Clause 9 will be case specific, but the examples cited and points raised are a useful aid in that decision making process.

The section of the Guidance covering Clauses 7 and 11, the reporting of sexual offences, also highlights areas where the law and the Code differ.

It is the law that victims of sexual offences have the right to anonymity from the moment an allegation is made, regardless of whether there is a conviction.  The right to anonymity can generally be waived in writing, but victims under 16 cannot waive the anonymity, and parents or guardians cannot do so on their behalf. However, Clause 7 goes further in stating that children under 16 who are witnesses in sexual offences cases cannot be identified. Whilst publishers wouldn’t ordinarily identify these witnesses, from a legal perspective they are at liberty to do so in the absence of reporting restrictions, providing it would not identify the victim. This is an important distinction to note, and is another example of the Code going further than the law.

When reporting on cases involving sexual offences it is obviously imperative that nothing is reported which is “likely to lead members of the public to identify that person as the person against whom the offence is alleged to have been committed”, as per S.1(1) of the Sexual Offences (Amendment) Act 1992. Section 1(3A) of the same Act goes on to list certain pieces of information which cannot be reported if they are likely to lead to the identification of the victim as the victim, including their name, address, identity of workplace or school etc.

As we all know, it is imperative that reports involving sexual offences are assessed on an individual basis, whilst also bearing in mind jigsaw identification, to ensure S.1(1) is complied with. This would normally involve being very careful about identifying or inferring a relationship between the defendant and the victim, but depending on the circumstances, some details which infer a relationship (as long as there is a sufficiently large enough pool of potential victims) are published.

I write this with caution, as there is no general rule and each case must be assessed based on its particular circumstances. But how does this sit with the Code if, as per clause 7(iv), “nothing can imply the relationship between the accused and the child”? And does “relationship” refer to a familial relationship or any relationship, like coach-athlete for example?

It is arguable that the Code goes further than the law in this respect. Whilst it is important to be cautious when it comes to potentially identifying the victims of sexual offences, this is an important distinction to be aware of, as it is not just the legal test which should be considered.

Reading the guidance as an editorial lawyer just highlights the need to be aware of both the legal and regulatory restrictions, not least because complainants who receive a positive outcome through IPSO often then try to pursue a legal complaint – and even if there’s no legal merit to the complaint, it can be expensive and time consuming to deal with.