5B Contempt and Reporting Legal Proceedings : Reporting Legal Proceedings
There is a long established principle that legal proceedings should be conducted openly and held in public. However, the law also recognises that there will be occasions where, in the interests of justice or to protect the rights of individuals, it is necessary to curtail the reporting of legal proceedings e.g. to postpone court reporting, to prevent publication of the names of certain parties, or to prohibit or limit the nature of the evidence that is reported.
The laws that restrict the reporting of legal proceedings are numerous and varied. Many relate to the identification of children and the victims of sexual offences. In most cases, courts will order that children who are the subject of or who are witnesses in proceedings and, also, the victims of sexual offences cannot be identified.
This is a complex area of law and legal advice must be sought at an early stage and certainly before filming. To breach most reporting restrictions is to commit a criminal offence.
Below is a brief summary of the law as it stands.
Postponing Court Reporting
Courts have the power to postpone the publication of any report relating to proceedings, for any length of time necessary - under s.4(2) of the Contempt of Court Act 1981. Before such an order is made, the Court should be satisfied that postponement is necessary to avoid a substantial risk of serious prejudice to the proceedings or pending proceedings. When imposing such restrictions, the court should set a specific date on which the restrictions will cease. Normally this will be at the conclusion of the trial or a series of trials e.g. the reporting of matters in one case might be prejudicial to a later, separate trial and, thus, the court may order that the first trial cannot be reported until the later one has concluded.
Preventing Identification of Parties
Courts have the power, even in relation to proceedings in open court, to order that certain material, including the names of parties, should be kept secret from the public sitting in court and, where that is the case, also from any media reporting of the case. However, such orders tend to be rare and reserved for cases where to publish the material to the public would frustrate or render impracticable the administration of justice, rather than where a witness or defendant simply prefers to remain anonymous.
Committal Proceedings
Committal proceedings take place in the Magistrates' Court when a criminal case is being referred to the Crown Court e.g. because the defendant has elected trial by jury (and is entitled to do so) or the case is so serious that the sentencing powers of the Magistrates' Court are insufficient. Such proceedings are normally held in public but what can be reported is restricted by law. Wherever there is any intention to make reference to Committal Proceedings in programmes, producers must seek early advice from the programme lawyer.
Legal Proceedings Involving Under 18s
[See also regulatory provisions at Chapter 4B, Crime]
People under 18 can be involved in all kinds of legal proceedings and in recognition of the fact that they are generally more vulnerable than adults, the law seeks to protect their rights in a number of ways.
Youth Courts
Most alleged criminal offences committed by people under 18 are dealt with by the Youth Court (in Scotland by the Children's Panel), unless the matter is very serious, in which case it may be referred or ‘committed' to the Crown Court (in Scotland, the Sheriff Court).
Reports of proceedings in the Youth Court must not contain the name, address, or school or any particulars likely to lead to the identification of anyone under 18 involved in the proceedings as defendant or witness or contain a photograph showing any such juvenile. Adults involved in Youth Court proceedings can be identified as long as, in doing so, this does not identify any juvenile involved in the proceedings.
These rules do not apply where a juvenile has been committed to the Crown Court (but see 'Section 39 Orders' below). Note that a Youth Court may lift these automatic restrictions in certain circumstances but the juvenile cannot waive the protection even if he or she actively wants to be identified. Once a juvenile who has been involved in Youth Court proceedings reaches 18, the reporting restrictions no longer apply and the once juvenile, now adult person, can be identified in relation to the offence.
Adult Courts
In all other courts, there is no automatic restriction prohibiting the identification of people under 18 involved in the proceedings or of publishing material likely to lead to their identification. However, in many cases where people under 18 do appear in legal proceedings, either as defendants or witnesses, the court will make an order expressly banning identification and certain other information likely to lead to their identification. Such orders are commonly referred to as ‘Section 39 Orders', named after the section of the Children Act 1933 which gives the courts the power to direct that "... no report of the proceedings shall reveal the name, address, or school or include any particulars likely to lead to the identification of any child or young person concerned in the proceedings as being the person by or against or in respect of whom the proceedings are taken, or as being a witness; and, no picture shall be published of any child or young person so concerned".
Note: if a Magistrates' Court makes a s.39 Order and then commits the case to the Crown Court, that order will not apply to the proceedings before the Crown Court. The Crown Court would need to make its own Order banning identification of the particular child. Please also note that different but similar legislation applies in Scotland.
Jigsaw Identification
Even where a particular media organisation takes steps to ensure that a child involved in legal proceedings is not identified by a report, there is always the risk of 'jigsaw identification' of the juvenile i.e. through one media organisation giving certain details and omitting others but one or more other media organisations giving/withholding different information so that, when everything published is taken together, the juvenile is identifiable. Care must be taken to avoid this.
In addition, it is worth noting the provisions of the Press Complaints Commission Code (which governs the printed media) in relation to the reporting of sexual offences against children, in order to avoid jigsaw identification. It states that in such cases: 1) the child must not be identified; 2) the adult may be identified; 3) the word ‘incest' must not be used where a child victim might be identified; and 4) care must be taken that nothing in the report implies the relationship between the accused and the child. Points 3) and 4) offer useful, practical guidance when reporting on such matters.
Anti-social Behaviour Orders ("ASBOs")
ASBOs are a relatively recent addition to the courts' armoury to deal with anti-social behaviour and can be imposed on any defendant over the age of 10. In relation to juveniles, the police or a local authority may apply to magistrates to impose an ASBO in respect of certain anti-social behaviour or a Youth Court may impose one as part of its sentence, after it has found a particular young defendant guilty of a criminal offence.
In the former case there is no automatic prohibition on identifying the juvenile concerned, although of course the court may make a section 39 Order if it considers it appropriate in all the circumstances. In the Youth Court, again there is no automatic prohibition on identifying the juvenile in relation to the decision to impose an ASBO but there is the automatic restriction in relation to the proceedings before the Youth Court generally (s.49). In addition, like in any other court, the Youth Court may deem it appropriate to impose a section 39 Order specifically in relation to imposition of the ASBO.
Alternatively, the Youth Court, may deem it appropriate to lift all reporting restrictions thereby enabling identification of the juvenile in relation both to the crime he/she was convicted of and the application/imposition of the ASBO.
If a juvenile breaches the terms of an ASBO this will normally be dealt with by the Youth Court and the normal automatic restrictions on identification do not apply. However, the Youth Court may impose a section 39 order if it considers it appropriate.
Proceedings Involving Sexual Offences
Victims of the vast majority of sexual offences (including male rape) are guaranteed anonymity by the law, under the Sexual Offences (Amendment) Act 1992 and the Sexual Offences (Amendment) Act 1976 (as amended by the Criminal Justice Act 1988). Once the allegation has been made that a person has been the victim of such an offence, no matter may be published or broadcast which would be likely to lead members of the public to identify that person as someone against whom such an offence had been alleged to have been committed. Anonymity remains in force for the lifetime of the victim, even where the allegation is withdrawn or the accused acquitted. However, in certain circumstances, magistrates or the trial judge may lift the automatic rule of anonymity. In addition, victims themselves can choose to waive their right to anonymity, if aged 16 years or over, without the consent of the court. Any broadcaster relying on this must, however, seek the victim's consent to waive his/her right to anonymity in writing and such consent must not be given under duress i.e. they must not be placed under any pressure.
There is no automatic legal anonymity for defendants i.e. those accused, in sexual offences cases.
Where a breach of these reporting restrictions is alleged, it would be a defence to prove that the person responsible for the broadcast was not aware or had no reason to suspect that publication was in breach of the sexual offences anonymity provisions. Note: the situation in Scotland is different as there is no statutory restriction but in practice press and broadcasters maintain anonymity for victims of sexual crime. This is a prerequisite for being allowed to remain in Court when victims are giving evidence.
Reporting Family Proceedings
Family proceedings e.g. proceedings relating to the care or supervision of children, or to arrange contact between parents and children, can be heard in a number of courts: the Magistrates' Court, the County Court or the Family Division of the High Court. Different rules apply depending on which court the proceedings are taking place in but the effect is predominantly the same - in general children cannot be identified in connection with the proceedings.
In Magistrates' courts two separate provisions (in different Acts - Section 71 of the Magistrates' Court Act 1980 and Section 97 of the Children Act 1989) apply to reporting family proceedings which, when combined, effectively mean that the child cannot be identified and few details of the case can be given. Section 97 makes it an offence to publish any material which is intended or likely to identify any child under 18 as being involved in the proceedings.
The restrictions of Section 97 also now specifically apply to family proceedings in the County Court and Family Division of the High Court.
Where family proceedings in any court are held in private, then even further restrictions apply. Section 12 of the Administration of Justice Act 1960 states that whilst publication of information about proceedings held in private or in chambers is not in itself a contempt, it is a contempt to report on proceedings in private involving, amongst others, wardship, cases involving the Children Act 1989 and other proceedings relating wholly or mainly to the maintenance or upbringing of children.
Wardship
Wardship proceedings are usually heard by County Court or High Court judges in chambers and, under section 12, it is a contempt to publish any account of family proceedings heard before a judge in chambers e.g. evidence before the court, information contained in medical reports. When combined with the other legal restrictions that apply this means that the child could not be identified as being a ward of court or as being involved in Children Act proceedings and on no account, regardless of whether or not the child was identifiable in the programme, could any report of the proceedings be included. Note however that, in the absence of an injunction preventing it, there would be nothing to prevent filmmakers filming and interviewing a child who was a ward of court - as long he/she wasn't identified as being a ward of court or connected with Children Act proceedings. In theory, there would be nothing to stop a child, who was a ward of court, appearing on a reality television show or game show, as long as no reference was made to the fact they were ward of court or to any legal proceedings concerning the wardship. Similar restrictions apply in adoption proceedings.
Divorce Proceedings
Divorce cases these days are rarely contested but where they are, they are subject to certain reporting restrictions. Refer to the programme lawyer.
Reporting legal proceedings is a complex area of law and legal advice must be sought at an early stage and certainly before filming begins.