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Section numbers from the book are used. The book should be read too. Its content provides fuller explanations and context.
12.1.3 Photography and filming could be contempt of court
Case study: On 20 February 2017 a member of the public, David William Davies, 39, sitting in Cardiff Crown court’s public gallery, began using his mobile phone to film a person giving evidence in a trial of a man accused of dangerous driving. Davies streamed the footage live on Facebook. More than 650 people saw it, some commenting on it online. Davies, of Llanwit Fardre, Rhondda Cynon Taff, posted an invitation for people to ‘tune in’ for further footage. Someone alerted police to the streaming. Davies was arrested the next day when he returned to the court. Judge Greg Bull QC jailed him for 28 days for contempt. PC Richard Sellek said: ‘Unfortunately, cases such as this are becoming more and more commonplace’ (Wales Online, BBC online and South Wales police press release, 22 February 2017).
Case study: In 2009 Mr Justice Keith warned photographers to stop taking pictures of two young brothers as they arrived at Sheffield Crown court in cars, under blankets. He said he would take action if he thought a contempt had taken place. The brothers had admitted inflicting, when aged 10 and 11, horrific violence on two boys in Edlington, near Doncaster (Press Gazette, 7 September 2009). For background on that case, see 12.10 in this Additional Material.
12.1.7 Some webcasting and broadcasting allowed
The Constitutional Reform Act 2005 ensured that the Supreme Court could allow broadcasting of its proceedings.
Section 32 of the Crime and Courts Act 2013 enables the Lord Chancellor (subject to the agreement of the Lord Chief Justice) to make Orders to permit audio-recording, filming or photography in other courts, and the broadcasting of such material, with specified conditions. Such Orders disapply section 41 of the 1925 Criminal Justice Act 1925 and section 9 of the Contempt of Court Act 1981 - for detail of those sections, see 12.1.1 and 12.1.4 in McNae’s.
Such an Order was made in 2013 to enable the Court of Appeal to allow the broadcasting of legal argument and judgments in its cases.
The Supreme Court and the Court of Appeal retain discretion to approve arrangements for broadcasting and to ban it in particular cases.
12.1.7.1 Broadcasting of Crown Court judges’ sentencing remarks
The Crown Court (Recording and Broadcasting) Order 2020 (SI 2020/637) enables the recording and broadcasting of sentencing remarks made by High Court and senior circuit judges when they sit as Crown court judges. This innovation in law will increase the openness of justice by enhancing the impact of the reporting of such major cases, because huge audiences will be able to see footage or hear audio of the judge pronouncing and explaining the sentence, including by reference to the crime(s) committed and the impact of the offending.
In preparations to implement this law, there was (before the coronavirus pandemic) a pilot project to film judges when they sentence, although the pilot footage was not broadcast. The Order makes clear that its use of the term ‘broadcasting’ includes webcasting, so a wide range of media organisations can transmit these sentencings. The Order makes clear too that each media organisation wanting to record and broadcast such footage/audio must first have in writing from the Lord Chancellor a general permission to do this. It will also need written permission from the judge in the particular case, and is required to obey any conditions imposed by the judge.
The Ministry of Justice (MoJ) has said such footage/audio will be ‘appropriately edited before leaving the courtroom’, and that if the broadcast is to be live there will be a short delay before transmission to avoid any breach of reporting restrictions ‘or any other error’.
The restriction that only the most senior judges can be filmed/recorded when sentencing means the footage/audio will be from the most serious cases, such as murder. The 2020 Order does not permit images or audio of anyone else in the court or any earlier stage of the proceedings to be recorded or broadcast.
John Battle, Head of Compliance at ITN, who campaigned for the reforming law in the Order, said after the Government announced it: ‘This is a landmark moment and an important day for open justice and transparency of our legal system. For the first time the public will see images of proceedings in the Crown court on television news.’
Her Majesty’s Courts and Tribunals Service, the MoJ and the Judicial Office will have the right to access any of the recordings. The 2020 Order specifies that copyright is automatically assigned to the Lord Chancellor. The MoJ said that the full sentencing remarks of any case in which they are broadcast will be hosted on a website to which the public has access.
The Order says that a report or presentation of court proceedings that includes a broadcast of sentencing remarks must be fair and accurate having regard to the overall content of the report or presentation, and the context in which the broadcast is presented. The Order includes a ban on use of the footage/audio in a party political broadcast or for ‘light entertainment’ or satire. It also contains a ban on use of the footage/audio in any advertisement or promotion, except where the advertisement or promotion relates to a report of or presentation of the relevant court case that includes a broadcast of the sentencing remarks - so this would permit, for example, some of the footage to be used in a ‘trailer’ for a TV programme about the case, as long as the programme included the footage.
The wording of the Order also means that a person who fails to comply with this law or conditions set by a judge as regards the recording or broadcasting could be punished under section 41 of the Criminal Justice Act 1925 as regards any image(s), or section 9 of the Contempt of Court Act 1981 as regards sound(s)– see McNae’s 12.1.1 and 12.1.4. This could mean a jail term of up to two years and/or a fine unlimited by statute, if punishment was under the 1981 Act.
For the Order, see Useful Websites, below.
12.1.7.2
Similar law has been created in the Competition Appeal Tribunal (Recording and Broadcasting) Order 2022 (SI 2022/156), to allow recording and broadcasting of that tribunal’s proceedings. This Order too has restrictions, including on what footage/audio of the proceedings can be recorded and what use can be made of it. For the Order, see Useful Websites, below.
12.3 Confidentiality of jury deliberations
Case study: In 2009 the High Court fined The Times £15,000 for breaching the confidentiality of jury deliberations. The Court also ordered the newspaper to pay £27,426 costs. It had published an article about a Crown court case in which the jury by a 10–2 majority verdict convicted a childminder of a child’s manslaughter. The article did not name the jury foreman, who had approached the newspaper, but quoted him expressing doubt about the medical evidence, and as saying that, early in its deliberations, the jury voted 10–2 in an initial indication of its consensus and that the majority of jurors—because of what he called ‘common sense’ rather than ‘logical thinking’—held to their initial view that the defendant was guilty. The Times denied that it had committed a contempt of court. But the High Court ruled that, by using these quotes in the article, the newspaper had breached the contempt law which bans disclosure of ‘votes cast’, ‘opinions expressed’ and ‘statements made’ during the jury’s deliberations, even though jurors’ identities were not disclosed by the article, and the foreman’s descriptions of the deliberations were brief and possibly inaccurate (Attorney General v Michael Alexander Seckerson and Times Newspapers Ltd [2009] EWHC 1023 (Admin)). The jury foreman was fined £5,000 for his part in the breach (Media Lawyer, 20 December 2009).
12.10 Indefinite anonymity for convicted defendants and others
In a few exceptional cases the High Court has issued injunctions – court orders – banning the media and anyone else from publishing the new identities and whereabouts of people who became notorious after committing, or being associated with, horrific crimes. These are what are known as contra mundum injunctions, and are based on common law powers – for context see 27.11.3 in McNae’s. In each case, the Court considered whether anonymity would help rehabilitate the convicted individual(s). But the Court’s aim in some of these cases was also to protect the individual(s) from the risk of physical or psychological harm from any people who might seek to kill, torture or harass them in vengeance or because of general, public outrage about the crime committed.
Mary Bell – This was first such case. In 1968, when she was 11, Mary Bell was convicted of the manslaughter of two boys, aged 4 and 3, and sentenced to detention for life. When she was released on licence in 1980, the Home Office gave her a new identity to help her rehabilitation. In 1984 the High Court made an order banning any publication of her new identity and anything else which could identify her new-born daughter as being her child, or which could identify the child’s father (X County Council v A and another [1985] 1 All ER 53). This order was made for the welfare of the daughter, to ensure a stable home environment, and was based in the court’s inherent jurisdiction to protect the child as a ward of court (for information on wardship, see 14.4.3.1 in McNae’s and the Additional Material for ch. 14 on www.mcnaes.com). By 2003 the daughter had ceased to be a ward, having reached the age of 18. But that year the High Court made a fresh order giving Bell and her daughter lifelong anonymity and banning any publication of where either of them lives. The judge, Dame Elizabeth Butler-Sloss (as she then was), had heard evidence that Bell and her daughter had moved home five times because of press intrusion and hostility from the public. She said that their privacy rights under the law of confidence and Article 8 of the European Convention on Human Rights overrode the media’s rights to freedom of expression under Article 10 (X (a woman formerly known as Mary Bell) and another v O’Brien and others [2003] EWHC 1101 (QB) (21 May 2003)). These Articles are explained in 1.3 in McNae’s.
Venables and Thompson – In 2001 Dame Butler-Sloss granted indefinite anonymity to Jon Venables and Robert Thompson, at their lawyers’ request. In 1993, when they were aged 11, they were convicted of the murder of two-year-old James Bulger. They killed him on a railway line in Merseyside after leading him from a shopping centre. Both were sentenced to detention ‘during Her Majesty’s pleasure’ (the equivalent, for a child, of a life sentence). In 2001 the Parole Board was due to make a decision about when the pair, then both 18, should be released and reintegrated into the outside world. Dame Butler-Sloss granted them anonymity by making an injunction banning publication of their new identities, recent photos of them, and of anything likely to identify their ‘present or future whereabouts’ (Venables v News Group Newspapers Ltd and others; Thompson v News Group Newspapers Ltd and others [2001] 2 WLR 1038). She said that – because their crime had led to credible death threats – Venables and Thompson had, as well as Article 8 rights, a right to anonymity under Article 2, the right to life, and under Article 3, which says that no-one should be subjected to torture or to inhuman or degrading treatment – see 1.3.3 in McNae’s. The High Court’s power to grant such injunctions for people who committed serious crime has since for brevity, because of this case, been referred to by lawyers as ‘the Venables jurisdiction’. In 2001 the Manchester Evening News was fined £30,000 for contempt of court for publishing material which the High Court ruled had included detail likely to identify, to someone with local knowledge, the secure units in which Venables and Thompson were then being held. The Court accepted that the material was not published deliberately to identify them (Attorney General v Greater Manchester Newspapers Ltd [2001] All ER (D) 32 (Dec)). Venables and Thompson were released on licence in 2001. In 2010 Venables, aged 27, was returned to prison after he was discovered to have downloaded and distributed pornographic photos of children, for which he was sentenced to two years. The injunction banning the media from disclosing his (and Thompson’s) whereabouts was not lifted. But the judge who sentenced Venables in 2010 allowed the media to report he had been living in Cheshire (Media Lawyer, 30 July 2010).
Maxine Carr – Anonymity was also granted to Maxine Carr, former girlfriend of Ian Huntley. In 2003 Huntley, a school caretaker, was convicted of murdering two schoolgirls in Soham, Cambridgeshire. Carr, then aged 25, was convicted at the same trial of conspiring to pervert the course of justice because she gave Huntley a false alibi during the police investigation of the murders. She was acquitted of having known, when she gave the alibi, that he had murdered the girls. In 2005 at the High Court, Mr Justice Eady granted an injunction indefinitely banning publication of her new identity and whereabouts, and the nature of her employment, after hearing that she received death threats and was harassed after serving her jail sentence (Maxine Carr v. News Group Newspapers Limited [2005] EWHC 971 (QB); Media Lawyer, 25 February 2005).
Kenneth Callaghan – In 2009 in the High Court in Belfast, Mr Justice Stephen made an injunction banning publication of any photograph which would identify Kenneth Henry Callaghan, then aged 39, and banning too publication of any information identifying his address, place of work, and any location he frequented or stayed at. Callaghan had become eligible for parole after serving 21 years for the 1987 murder of a woman whom he raped as she was dying or after she died. The Sunday Life newspaper took photographs of him in 2008 when he was on temporary release from a Northern Ireland Office (NIO) prisoner assessment unit. The judge said that the newspaper’s articles about Callaghan’s possible release, which described him as an ongoing risk to the public, were likely to incite hatred against him. They were also counter-productive, he said, as such hatred and the disclosure, through the photographs, of his future whereabouts would increase the risk that he would reoffend. The judge granted the injunction on the grounds of Callaghan’s Article 8 privacy rights and to protect him from harassment. The judge also ordered, at the request of the Northern Ireland Office, that nobody should publish any photograph which identified any serving prisoner who was being assessed at the unit without giving the NIO 48 hours’ notice of intention to publish it (Callaghan v Independent News and Media Ltd [2009] NIQB 1).
The Edlington case - In 2016 the High Court banned the media and everyone else from publishing the former names and new identities of two brothers responsible for notorious, sadistic attacks in 2009 on two other boys. The brothers, who were aged 10 and 11 at the time of these offences, inflicted around 90 minutes of violence on the victims, including stamping on them, hitting them with bricks, choking and burning them, and inflicting humiliations, some of them sexual. The older victim almost died from his injuries. In 2010 at Sheffield Crown court, the brothers were sentenced to indefinite detention (so their release depended on assessments of them). In the Crown court proceedings, the judge made an order under section 39 of the Children and Young Persons Act 1933 banning reporting of the case from identifying the brothers (at that time this was the anonymising power used for children concerned in criminal cases). But, as 10.5 in McNae’s explains, section 39 anonymity expires when the person given it reaches the age of 18. On their release in early 2016 from detention the brothers were given new identities. Later in 2016 Sir Geoffrey Vos, Chancellor of the High Court, made an injunction giving them indefinite anonymity in respect of the 2009 crimes. He said neither the brothers' original names nor their new identities could be published in connection with those crimes. A barrister representing the brothers (the ‘claimants’) had asked for this anonymity. Sir Geoffrey made the injunction on the basis of their rights in Articles 2, 3 and 8 of the European Convention on Human Rights, to protect them from harm and to safeguard their rehabilitation. He said that the crimes committed by the brothers had created ‘almost unparalleled public anger and resentment’ directed at them, and he referred to material posted online by members of the public. ‘The public calls for revenge and for harm to be done to the claimants are, in my judgment, to be taken very seriously indeed.’ He said that if the brothers’ identities as the perpetrators of the crimes were to become known they would be at ‘extremely serious risk of physical harm’, and would suffer psychological harm (A and B v Persons Unknown [2016] EWHC 3295 (Ch); The Guardian, 22 January 2010; Media Lawyer, 12 December 2016)
RXG – In 2015 at Manchester Crown court a 14-year-old boy from Blackburn, Lancashire, admitted two charges under section 59 of the Terrorism Act 2000 of inciting terrorism overseas. He was the youngest person to be convicted in the UK of any terrorism offence. In thousands of encrypted, internet messages he had incited Sevdet Ramadan Besim, a teenage jihadi who lived in Melbourne, Australia, to murder police officers during what was planned to be an attack on an ANZAC parade in that city. The boy incited Besim to murder one such officer by beheading. British police discovered the messages about the plot, and there were no such attacks. Besim, aged 19, was jailed in Australia for his involvement in the plot. The judge at Manchester sentenced the 14-year-old to life imprisonment, with a minimum term of five years, for the incitement. The judge accepted that the boy had been groomed over the internet by extremist propagandists who either worked for or supported the proscribed terrorist group ISIS (for explanation of ‘proscribed’ groups see the online ch. 40 on counter- terrorism law). The Crown court had made an order under section 45 of the Youth Justice and Criminal Evidence Act 1999 banning reports of the case from identifying the boy. But as explained in 10.4 in McNae’s, section 45 anonymity expires when the person for whom it was provided reaches the age of 18. In 2019 the boy’s barrister asked the High Court to make an injunction to give the boy – who at that time was in a secure home for children – lifelong anonymity as regards coverage of the incitement offences. The barrister argued that if it became known that the boy was a convicted terrorist, he would be at risk of attack in the adult prison he was due to be transferred to. The Court was told that he was not ‘streetwise’ and so the transfer would be traumatic in any event. It heard evidence from a psychologist that it was probable that allowing the boy to be identified, and so to suffer the stigma and shame of being known as a terrorist, would have a profound impact on his psychological well-being and would undo progress he had already made in rehabilitation. The barrister said too that the boy had been diagnosed as having ‘high functioning autism’, and that his autism made him vulnerable to further exploitation by extremists. The argument was that allowing him to be identified would mean prisoners who shared the extremist ideology of ISIS would, knowing of his past crimes, seek to re-radicalise him, particularly in view of his ‘poster boy’ propaganda value to them of being the youngest such offender, and that would increase a risk to the public by making him more likely to commit further terrorism offences. The barrister said that coverage of the criminal proceedings against the boy in 2015 had already generated a public reaction to him which was overwhelmingly negative, including death threats, and that if he was identified as having such convictions, that would be embedded via the internet in the public domain and make him globally infamous. However, in a submission to the High Court, the Ministry of Justice adopted a neutral position on whether the boy should have continued anonymity, saying that its experience of managing other terrorists and young offenders was that reporting of an offender’s identity rarely manifested itself in any increase of any risk of threat or violence to the offender; that there was no current assessed threat of real or immediate risk to the boy’s life either from his current secure setting or the wider public; and that it felt that management strategies could be effectively deployed to support his rehabilitation were the media to be allowed to identify him. For the ‘real and immediate risk’ criterion, see 16.11 in McNae’s. The Press Association, arguing against the boy being given anonymity beyond the age of 18, pointed out that when Parliament created section 45A of the 1999 Act as a means of giving witnesses aged under 18 lifetime anonymity in respect of criminal cases in which they were due to testify, it had decided against section 45A providing lifetime anonymity for defendants aged under 18 (for context about that law, see 10.4.2 in McNae’s). In the High Court’s judgment, in which the boy is referred to as RXG, Mr Justice Nicklin and Dame Victoria Sharp PQBD ruled that it had not been convincingly established that allowing him to be identified would put him at real and immediate risk of serious harm, and that therefore his rights under Articles 2 and 3 of the European Convention on Human Rights were not engaged. They said - of the evidence of threats made against RXG online after his conviction- that it is ‘a feature of modern life that individuals are prepared to use language online that they would never use in person, and make threats of a kind they would never carry out.’ But these judges ruled that it was ‘necessary and proportionate’ that RXG should have the lifelong anonymity requested, because his privacy rights under Article 8 were engaged to protect his chances of rehabilitation, and because in his ‘exceptional’ case these rights outweighed the Article 10 rights of the public as regards open justice. The judges said that if RXG was identified to the public as having committed the incitement crimes, there would be a risk of him becoming socially ostracised and an associated risk of him committing further offences, risks exacerbated by his autism. They said too that if he was identified there would be an indelible record on the internet that he committed that crimes, with his notoriety enhanced by the fact that he was the youngest person to be convicted in the UK of a terrorism offence. The judges also said that most offenders whose section 45 anonymity lapsed at the age of 18 would not have anything like the notoriety which RXG would have if he were identified. ‘For them, the coming of their 18th birthday is likely to go unremarked and the discharge of the reporting restrictions is unlikely to lead to media reports publicly associating them with their previous offending.’ Mr Justice Nicklin and Dame Victoria Sharp also ruled that the High Court’s power to grant such anonymity was not curtailed by how Parliament had limited section 45A anonymity to witnesses (RXG v Ministry of Justice and persons unknown [2019] EWHC 2026 (QB)); Media Lawyer, 29 July 2019; The Guardian, 5 September 2016).
D and F – In 2014 two girls aged 13 and 14 tortured and brutally murdered Angela Wrightson at her home in Hartlepool. They inflicted more than 100 injuries on the vulnerable 39-year-old, using a number of different objects. During the time they were in her home they took pictures of themselves and posted them on social media. They were convicted of the murder in 2016 at Leeds Crown court, where they were each sentenced to life imprisonment with a minimum 15-year term, and became known as ‘the Snapchat killers’. They had anonymity in reports of the murder proceedings because the court made an order under section 39 of the Children and Young Persons Act 1933. But that anonymity expires when the person given it reaches the age of 18. Shortly before the younger of the girls was due to turn 18, her lawyers applied to the High Court for an injunction to permanently ban publication of any information which might lead to the public identifying her as one of Ms Wrightson’s murderers. This girl was referred to as D in the High Court case, in which the lawyers for the other girl, referred to as F, made a similar application for her too to be granted such anonymity. An interim injunction was granted to preserve D’s and F’s anonymity until these applications could be heard fully at the High Court. By the time that happened, D and F had been transferred from a secure training centre (a type of jail for those aged 12 to 17) to the ‘adult prison estate’. In the High Court, their lawyers argued that D’s and F’s rights under Articles 2 and 3 were engaged because there was a ‘high risk of attack and serious harm from third parties’ should they be identified widely within prisons, or after their release, as the murderers. Hostile comments about them posted on social media by members of the public were quoted to the Court, including threats of retribution for Ms Wrightson’s horrific death. The lawyers also argued that if D and F were publicly identified as the murderers there was a very real risk of them self-harming or killing themselves, in view of their vulnerable, mental health. Evidence was presented - including statements from the police, prison officials and psychologists - in support of their anonymity continuing. The High Court judge, Mrs Justice Tipples was told that F had an extensive history of mental health problems, had made previous attempts to kill herself, continued to have suicidal thoughts and plans, and was repeatedly self-harming. The judge was told that D had no mental health issues when assessed prior to the murder trial, but that her mental health deteriorated at the point she acknowledged that transfer to the adult prison estate was becoming a reality. She was being treated for depression and had self-harmed, and after one such incident was given hospital treatment. Mrs Justice Tipples ruled that the risk of D and F being attacked by other people was not ‘real or immediate’. For example, she said that ‘rhetoric and invective’ in comments on social media are ‘generally insufficient, without more, to amount to a credible threat of violence’. She pointed out that the High Court in RXG had reached the same conclusion about social media comments. Consequently, the case of D and F became the first in ‘the Venables jurisdiction’ in which the key issue, as regards rights in Articles 2 and 3, became the risk of self-harm or suicide rather than the risk of violence being inflicted by third parties. Referring to case law, Mrs Justice Tipples said the following factors had been identified as regards whether there was a real and immediate risk of suicide: (i) history of mental health problems; (ii) the gravity of the mental condition; (iii) previous attempts to commit suicide or self-harm; (iv) suicidal thoughts or threats; and (v) signs of physical or mental distress. The judge ruled that F should have anonymity in respect of the murder because there was a real and immediate risk of serious physical harm or death at her own hand if her anonymity was not preserved. The judge said that D was also entitled to such anonymity because if her identity was revealed, that would significantly increase her risk of self-harm. Mrs Justice Tipples also ruled that D and F should have the anonymity because of their Article 8 rights to privacy, to safeguard their mental health to help them progress in rehabilitation. The Press Association (PA) argued at the High Court that granting them anonymity because of concerns about the risk of self-harm or suicide would ‘open the floodgates’ for other notorious criminals to achieve anonymity on this basis. PA argued that the media should be allowed to identify D and F as the killers of Ms Wrightson, because of the fundamental public interest in the full reporting of trials, and the public interest in understanding how children of 13 and 14 could have committed the murder. But Mrs Justice Tipples said that the case of D and F was exceptional. She also said that the young age at which they had committed the murder was a factor which had to be considered, and that overall their Article 8 rights outweighed the media’s and public’s rights under Article 10 (D v Persons Unknown, F v Persons Unknown [2021] EWHC 157 (QB).
12.13 Postponed reporting of ‘special measures’ and section 36 orders
Courts can make a ‘special measure’ direction (order) under section 19 of the Youth Justice and Criminal Evidence Act 1999 to help a ‘vulnerable’ or ‘intimidated’ witness (who is not the defendant) give evidence in a criminal case. The ‘special measures’ which can be put into effect by a section 19 order are specified in other sections of the Act. For example, the witness may be allowed to give evidence from behind a screen or by live video link, or – as explained in 15.4 in McNae’s and specified in the Act’s section 25 – most reporters present may be ordered to leave the courtroom during his/her testimony.
Section 47 of the 1999 Act contains an automatic reporting restriction which temporarily bans anyone from publishing that a section 19 order has been made, varied or discharged (whether in pre-trial proceedings or during a trial); or anything from the discussion or argument in court about whether such an order should made, varied or discharged.
Section 47 also automatically and temporarily bans anyone from publishing that an order has been made under section 33A of the 1999 Act to allow a defendant to give evidence to the court, via a live video link, from a nearby room or remote location to help ensure his or her effective participation in the trial. A section 33A order can be made for a defendant aged under 18 if his or her ability to participate effectively in the proceedings as a witness giving oral evidence in court is compromised by his or her level of intellectual ability or social functioning. It can be made for an adult defendant if he or she suffers from a mental disorder or otherwise has a significant impairment of intelligence and social functioning. Section 47 also temporarily bans anyone publishing a report of the discussion or argument in court about whether a section 33A order should be made, varied or discharged.
Section 47 also automatically and temporarily bans anyone from publishing that the court has made or discharged an order under section 36 of the 1999 Act to prohibit a defendant representing himself or herself from personally cross-examining a witness. A court can therefore make a section 36 order to prevent a witness who is the alleged victim from being intimidated by the defendant during cross-examination (so, for example, a man charged with an offence of violence can be prohibited by the judge from personally cross-examining the alleged victim). If a section 36 order is made, often the cross-examination of that witness will be done by a specially briefed lawyer, even though the defendant has chosen not to have a lawyer for any other part of the trial. Section 47 also temporarily bans anyone publishing a report of any discussion or argument in court about whether a section 36 order should be made or discharged.
These section 47 reporting restrictions apply in respect of proceedings in magistrates’ courts as well as in respect of jury trials. The purpose of the restrictions is to stop jurors (who would not be in court when a section 19, 33A or 36 order was made, varied, discharged, discussed or argued about) being prejudiced against the defendant or a witness by learning, before the jury reaches all verdicts in the case, why the court considered making or made the relevant order.
It will be safe to report, during a trial, anything that can be seen in court by the jury - for example, that a witness or defendant is giving evidence by live video link - and anything the judge says to the jury to explain the effect of a section 19, 33A or 36 order – for example, why a lawyer steps in to act for a defendant who is otherwise representing himself.
But it would, for example, be illegal to publish the fact, beyond any explanation the judge gives to the jury, that most reporters were ordered to leave the courtroom, or that a defendant has been banned from conducting cross-examination, or why a witness or defendant has been allowed to give evidence via live video link.
The section 47 reporting restrictions automatically cease to have effect when the relevant case, against all defendants involved, is determined by acquittal, conviction, or otherwise, or is abandoned. Also, the court can lift any of these reporting restrictions at any earlier stage.
If the court does lift a section 47 restriction at an earlier stage, it is illegal under the section to publish – until the case is determined by acquittal, conviction, or otherwise, or is abandoned - the discussion or argument in court which led to the lifting (including any objection to or representations made about the lifting).
Breach of a section 47 reporting restriction can be punished by a fine. The amount of the fine is not limited by statute. A person charged with such a breach has a defence if he or she can prove he/she was not aware and neither suspected nor had reason to suspect that matter breaching the restriction was included in what was published.
Liability for breaching a section 47 reporting restriction, as regards who can be prosecuted, is the same as for breach of a reporting restriction imposed by an order made under the 1999 Act’s section 46 – see the explanation in 12.8 in McNae’s. NB: a witness helped to give evidence by a special measures direction made under section 19 of the Act may also have been granted lifetime anonymity, in respect of media reports of the trial, by an order made under section 46 (or, if aged under 18, under section 45A – for context, see 10.4.2 in McNae’s).
Remember: because a court’s decisions on orders which can be made under sections 19, 33A and 36 are taken during pre-trial hearings or when a jury is out of the courtroom, other law will probably also be in effect – see 9.4, 19.11.2 and 19.11.3 in McNae’s - to restrict generally the contemporaneous reporting of what is decided and discussed in court before the jury is empanelled or when it is absent.
Law in the section 340 of the Sentencing Act 2020 enables a court to order use of a special measure in ‘criminal behaviour order’ proceedings (see the Additional Material for chapter 10 for explanation of CBOs). Also, courts martial can make a special measure order, under the Youth Justice and Criminal Evidence Act 1999 (Applications to Service Courts) Order 2009 (SI 2009/2083). These laws too contain automatic and temporary reporting restrictions banning publication of the fact that a special measure order has been made, discharged or varied, and banning publication of the discussion or argument in court about such matters, until the conclusion of the proceedings
12.14 Postponing a report of a ‘derogatory assertion’
A court can postpone a media report of an allegation made in a ‘speech in mitigation’, if it believes that the allegation may have unfairly besmirched someone’s character.
If a defendant is convicted, the court will hear mitigation – a plea for leniency – before deciding what sentence to impose, as explained in 7.6 and 9.7 in McNae’s. Mitigation is usually pleaded by a defence lawyer, but a defendant may speak too. A mitigation speech may also be made when a magistrates’ court is deciding whether to commit the case to the Crown court for sentence (see 7.6.2 in McNae’s about such committals). A mitigation speech in that circumstance would be an attempt to persuade the magistrates that they have the power to impose an appropriate sentence, the defendant’s concern being that committal to the Crown court will lead to a longer jail term than magistrates can impose.
A mitigation speech might include an allegation against another person- for example, the victim of the crime. A defendant who admits attacking another man in a pub might claim that the man provoked the violence by making an indecent remark to the defendant’s girlfriend. There may be no truth in this, but the assault victim may not be in court to object to the allegation. He cannot sue for defamation, because what is said during court proceedings - and what the media properly publishes when reporting court cases - is ‘privileged’, as explained in 22.5 and 22.7 in McNae’s.
Reacting to controversy about the making of false allegations in mitigation speeches, Parliament gave the courts the power to impose a ‘derogatory assertion order’. This is a temporary reporting restriction. The order is that any publication of the assertion (the allegation) made in the speech of mitigation must be postponed for 12 months. The court can make the order when there are substantial grounds for believing:
- that the assertion is derogatory to a person’s character - for instance, because it suggests that the person's conduct ‘is or has been criminal, immoral or improper’, and
- that the assertion is false, or that it is irrelevant to the sentence.
The law enabling a court to make the order is in sections 38-39 of the Sentencing Act 2020 (and was previously in another statute). A court can also make the order in respect of such a derogatory assertion made by or on behalf of an offender when it is hearing an appeal against or reviewing a sentence, or determining whether to grant leave to appeal against a sentence.
A derogatory assertion order makes it an offence to publish the assertion during the 12 months if the report contains enough information to make it likely that a member of the public will identify the person whose character was thus traduced. But section 39 of the 2020 Act says the order cannot be made if the derogatory assertion made in the mitigation speech was made earlier during the relevant trial or ‘during any other proceedings relating to the offence’. This means, for example, that a journalist aware that the assertion has already been aired during the trial can challenge, as invalid, a derogatory assertion order made in respect of the same assertion as repeated in a mitigation speech. The media’s right to challenge a court decision affecting reporting, and how to challenge it, are explained in 16.1 - 16.6 of McNae’s.
A court can make, before its sentencing decision, an interim order postponing publication of the assertion, which automatically lapses when the sentence is decided. But the court can then make a full order postponing publication for 12 months, even if no interim order was made. It can revoke such an order at any time in those 12 months. If not revoked, the order expires automatically when the 12 months have elapsed.
As Parliament realised when it made this the law, the news value of a derogatory assertion would, in most cases, be non-existent after 12 months, making it unlikely in such cases that the assertion would be published at all.
This reporting restriction is rarely used. Defence lawyers are required to give notice of any intention to make a derogatory assertion in a mitigation speech, in case the prosecution choose to require the assertion be proved as true in a ‘Newton hearing’ – a term explained in the glossary in McNae’s. This requirement generally discourages the making of untrue assertions.
Under section 40 of the 2020 Act liability for breach of a derogatory assertion order, as regards who can be prosecuted for the breach, is the same as for breach of section 49 of the Children and Young Person’s Act 1993 – see 10.3.4 in McNae’s. The penalty for breach is a fine unlimited by statute.
It is a defence for anyone accused of breaching such an order to prove that they were not aware of the order or, did not know and had no reason to suspect that what was published contained the relevant assertion.
Useful Websites
www.legislation.gov.uk/uksi/2022/156/made
The Crown Court (Recording and Broadcasting) Order 2020
www.legislation.gov.uk/uksi/2022/156/made
The Competition Appeal Tribunal (Recording and Broadcasting) Order 2022