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Section numbers from the book are used. The book should be read too. Its content provides fuller explanations and context.
16.7 Challenging section 4(2) postponement orders
Courts should recognise that a section 4(2) order could, by postponing media reporting of a case, distort or diminish the public’s understanding of events.
Case study: In 2006 the head of the Metropolitan police’s counter-terrorism branch, Peter Clarke criticised section 4(2) orders imposed because of assertions that reports of terrorism trials could prejudice others then pending. The context of his criticism was that some terrorism trials were linked because of overlaps in evidence or for other reasons. The section 4(2) orders were causing long delays in publication of reports of some trials. Terrorism cases took an average of two years to come to court because they were so complex, Mr Clarke told an anti-terrorism conference at St Antony's College, Oxford. Judges felt compelled to impose what had become an interlocking web of orders under the Contempt of Court Act 1981 to ensure that defendants received fair trials before untainted juries, he said. He warned that such orders meant there was an ‘inability’ to put before the public what was happening, and that had led to some myths, such as the idea that the threat of terrorism was being exaggerated at the behest of the Government to justify foreign policy. He said: ‘That is so far off the mark….I do not see the public being well served by this. It skews the debate if they (the public) do not know about things.’ In 2009 he returned to the subject of the Act, arguing that it was time to ‘trust’ jurors more in the interests of ensuring that communities were kept informed during the sometimes very long periods it took to prepare a case to prosecute those accused terrorism. ‘I think there is a link between the application of the Contempt of Court Act and the potential effectiveness of counter-terrorist policing,’ he told the BBC. ‘It is fundamental to any type of policing that communities must have confidence in what the police are doing. All too often, though, it has been two or even three years before we have been able to explain to communities why certain actions were carried out’. He said: ‘If that happens it is going to be far more difficult for those communities to have confidence in the police, to have the confidence to come forward with intelligence and information which could be absolutely vital in terms of counter-terrorism.’ Mr Clarke, who was head of the Metropolitan Police Counter Terrorism Command until 2008, said that a 2003 raid on Finsbury Park Mosque, London, was a particularly acute example. ‘This was a hugely sensitive operation and we wanted to be able to explain to communities why it was we were doing something like that,’ he said, adding that an explanation could not be given until three years after the event. The police were then accused of exaggerating the terror threat in a bid to provide support for the Iraq invasion, and these accusations harmed the effectiveness of the police, he said, adding that the ‘official silence’ required by the Act ‘leaves an open court for others to roll out speculation, innuendo, sometimes deliberate lies’. He said: ‘That unbalances the public debate and makes it very difficult for communities to know what to believe and therefore it makes it more difficult for the police to do their job.’ Mr Clarke questioned how often in reality there was a ‘substantial risk of serious prejudice’, saying: ‘In an era of global communication it is unrealistic to think that jurors will sit there in complete isolation not understanding the context of what they are trying.’ He said: ‘Juries are the bedrock of our judicial system - we need to cherish them and, most importantly, we need to trust them’ (Media Lawyer, 15 December 2006 and 6 July 2009).
Case study: In 1994 Mr Justice Lindsay refused to make a section 4(2) order postponing reporting of civil cases involving pension funds, although criminal proceedings were pending. He said a risk of prejudice which could not be described as substantial had to be tolerated as the price of an open press and that even if the risk was properly to be described as substantial, a postponement order should not automatically follow (MGN Pension Trustees Ltd v Bank of America [1995] 2 All ER 355, Ch D).
16.7.6 Section 4(2) orders cannot be made because of concern about social media comments or earlier reports
The Court of Appeal made clear in 2018 that section 4(2) orders should not be made because of concern about prejudicial material already on the internet.
Case study: A section 4(2) order stopped the media from reporting the trial of a surgeon accused of fraud, until after the jury delivered its verdict. But the order should never have been made, the Court of Appeal ruled in June 2018. Judge Juckes QC made the order at Worcester Crown court in January that year shortly before the opening of the trial of Sudip Sarker. The fraud charge was that Sarker had dishonestly exaggerated his professional experience when applying to be a consultant surgeon at the Alexandra Hospital in Redditch, a job he was given by Worcestershire Acute Hospital Trust in 2011. Colleagues soon raised concerns about him performing bowel surgery poorly. There were incidents where procedures went wrong. An investigation in 2012 by the Trust found stark contrasts in the complication rates for his patients when compared with those of other surgeons performing similar operations. After a review of his work by the Royal College of Surgeons, he was suspended in 2013 and dismissed in 2015. There was a police investigation into a number of deaths of his patient, although he was not charged in relation to any death. On the day the fraud trial was due to begin his defence counsel asked Judge Juckes to impose a section 4(2) order, arguing that it was necessary because media reports about Sarker – that he had been suspended by the Trust after concerns about his competence, that the deaths of three of his patients had been referred to a coroner and, from later dates, that he was being investigated by police and had been sacked– remained online. The counsel said that if a contemporaneous report of the trial was published it would ‘inadvertently link’ to that material, and if jurors clicked through such a link they would see that material and therefore could be prejudiced against Sarker. Therefore, the defence argument was, there should be no coverage of the trial until the verdict, to remove the possibility of that linkage. The prosecution adopted a neutral position as regards this application for a section 4(2) order. The judge made the order. Four days later, as the trial progressed with no media coverage because of the order, the BBC sent a lawyer to the court to argue against it. He told Judge Juckes that the BBC and other media organisations are highly experienced in reporting criminal trials, and that no reasonable news editor would broadcast or publish prejudicial material or allow it to be published on their platforms, including on message boards, social media, or through links to previous news stories. He pointed out that the judge had given the normal direction to the jury not to conduct their own research into the case and, in any event, if a juror were minded to disobey that direction, they would find the prejudicial material by simply 'Googling' the defendant's name. Therefore, the BBC lawyer said, the ban on the media publishing reports of the trial as it progressed did nothing to prevent the risk that jurors may read the prejudicial material. By this time the prosecution supported the order. The judge refused to lift it then but did so after Sarker was convicted seven days later. As a matter of principle, the BBC, supported by other media organisations, appealed to the Court of Appeal, asking it to rule that the order should not have been made. The Court - the Lord Chief Justice, Lord Burnett, Mr Justice Stuart-Smith and Mr Justice Nicklin - upheld that appeal. It stressed the importance of open justice, and reminded judges that they should approach applications for reporting restrictions with caution, and referred to the need to follow the approach set out in the Sherwood judgment on section 4(2) orders (see 16.7.2 in McNae’s about Sherwood). Lord Burnett said of the application made by Sarker’s counsel for the order: ‘Judges must be on their guard against applications which are advanced at the last minute or without proper consideration of the principles in play…Although a reporter may be in court (as was the case here) he or she is unlikely to be in a position instantly to advance considered submissions in response to an application…It is when these factors, individually or collectively, are present that the court must be most vigilant to ensure that an application for reporting restrictions receives careful consideration….The reality is that most local newspapers, for decades the mainstay of reporting the work of our courts, will be unable to justify the cost of applying to discharge or appealing a reporting restriction order’. He said that in the absence of any submissions from the media, judges are entitled to look to the prosecution for assistance, whose duty it is to ensure that the court is aware of the relevant legal principles. Lord Burnett added that the practical effect of even a relatively short postponement order is likely to reduce the chances of any reporting at all. ‘In order to publish a postponed report of a trial, the media organisation would have to commit the resources of a journalist attending the trial in the certain knowledge that only a fraction of what would have been published in daily reports will be likely to be published when the order is lifted. In the modern era of communications, it is truer than ever that “stale news is no news”.’ He said that the danger of ‘parasitic damage’ to a trial by jurors seeing online comments or other news reports about a defendant was not a risk of prejudice arising from fair and accurate reporting of the trial, and so could not justify an order under section 4(2). He said too: ‘Fair and accurate contemporaneous reporting of the trial would not have given rise to any risk of prejudice…The perceived risk [of prejudice] arose from an assumption that a fair and accurate contemporaneous report would contain links to earlier irrelevant and prejudicial material…There was no reason to make that assumption…’ Lord Burnett added: ‘At the heart of the concern articulated by the defendant's counsel was a fear that, contrary to the judge's direction, echoed in material given to the jury in writing, members of the jury might embark on a search for further material. …There was no reason to suppose that they would do so and a postponing order pursuant to section 4(2) was anyway an impermissible mechanism to reduce any such risk’ (R v Sarker [2018] EWCA Crim 1341).
Section 4(2) orders cannot restrict reports of events outside the courtroom or of material already in the public domain
Section 4(2) refers only to postponing reports of a court’s proceedings – but some courts have tried to use it temporarily to ban reporting of an external event, or of a statement not made in the proceedings. The Court of Appeal accepted in R v B [2006] EWCA Crim 2692 that such use is beyond the section’s scope, and unnecessary because a media organisation can face proceedings under strict liability rule of the Contempt of Court Act 1981 for publishing anything which creates a substantial risk of serious prejudice or impediment to an active case. That part of the Act is explained in 19.4 and 19.6 in McNae’s.
16.8.2 Public proceedings in criminal cases, reputation, family life and the Convention
Case study: The Supreme Court in 2017 refused to grant an injunction to ban the media from identifying, in reports of criminal proceedings, a man mentioned in evidence as being a suspect in a police inquiry called Operation Bullfinch. It involved the investigation of sexual offences - the ‘grooming’ and prostitution in the Oxford area of girls aged between 11 and 15. Nine men were charged because of the Bullfinch investigation. In a preliminary hearing before magistrates in 2012 and in the nine’s trial at the Old Bailey – in which seven were convicted in May 2013 - there was reference to Tariq Khuja, a prominent figure in the Oxford area. He was not a defendant but was referred to as having been arrested during Bullfinch because one of the complainants told police that when she was 13 she was repeatedly abused by a man with the same, very common first name. These references in open court included that police had released Mr Khuja without charge after she failed to pick him out at an identity parade. His lawyers successfully applied in the magistrates’ court and to Judge Rook QC at the Old Bailey for the media to be banned temporarily under section 4(2) of the Contempt of Court Act 1981 from identifying Mr Khuja in reports of these proceedings because at that time he was still on police bail and, it was successfully argued, there was a significant risk that if he was identified in reports of the Bullfinch proceedings his own trial, if he were to be charged, would be prejudiced by that publicity. For explanation of section 4(2) orders, see 19.11 in McNae’s. In July 2013 police told Mr Khuja he was not to be charged but that the case would be kept ‘under review’. In September 2013 the Oxford Mail and The Times asked Judge Rook to lift the section 4(2) order so they could identify Mr Khuja in reports of Bullfinch proceedings. They pointed out there were no ‘pending or imminent’ proceedings against him, so – under section 4(2) - there was no risk of prejudice. After Judge Rook indicated he would lift the order, Mr Khuja applied to the High Court for an injunction, to be based on his rights to privacy and family life under Article 8 of the European Convention on Human Rights, to ban the media from identifying him in such reports. His lawyers argued this anonymity was justified to avoid damage to his reputation and the consequent impact that damage would have on his family life. Mr Justice Tugendhat refused to make the injunction. Explaining his refusal, he cited open justice principles, including as enshrined in Article 10 rights (for context on Article 10, see 15.5 in McNae’s). He accepted that identification of Mr Khuja in the context of the child abuse allegations could lead to him and his family, including children, being subject to very unpleasant behaviour or even harassment, but Mr Justice Tugendhat said that members of the public generally who learned of the references to Mr Khuja in the Bullfinch case proceedings would not equate the suspicion he was under with guilt - he was not charged with any offence. Mr Khuja’s anonymity stayed in place for a further three years and nine months because he appealed to the Court of Appeal against this ruling, and – when that appeal failed - appealed to the Supreme Court. That appeal failed too, because the Supreme Court refused to make the requested injunction. In that Court’s judgment on the appeal, Lord Sumption said that there was no present reason to think Mr Khuja would ever be charged with any offence, and acknowledged there was ‘a real risk’ that a person knowing what was said about Mr Khuja in the court proceedings arising from Bullfinch would conclude he had sexually abused the complainant. Lord Sumption said he was ‘less sanguine’ than Mr Justice Tugendhat was about ‘public reaction’ to what had been said about Mr Khuja in those proceedings. Nevertheless, Lord Sumption made the following points: 1) Mr Khuja could not have ‘any reasonable expectation of privacy’ as regards matters aired in a public trial; 2) the impact on his family life of publication of what was said about him in the Bullfinch trial would be ‘no different in kind from the impact of many disagreeable statements’ which may be made about people in any high profile criminal trial, and the ‘collateral impact’ this process has on those affected is ‘part of the price to be paid for open justice’ and for the freedom of the press to report public, judicial proceedings fairly and accurately; 3) the impact on Mr Khuja’s family life would be ‘indirect and incidental’, in that neither he or his family participated in the trial, and nothing was said at it related to his family, and - although Mr Khuja could claim that the damage to his reputation caused by identification would have an adverse impact on family life - he had ‘no reasonable expectation of privacy’ (see point 1 above, and 27.5 in McNae’s), so could not use Article 8 rights to protect his reputation in this case, and so it would be ‘incoherent’ for the law to grant the injunction to prevent ‘the collateral impact on his family life’; 4) circumstances when an injunction would be justified to prevent publication of ‘private information’ in relation to the reporting of public, court proceedings ‘are likely to be rare’ and clearly did not exist as regards the Bullfinch case, in that sexual abuse of children – especially organised abuse - is a subject of great, public concern, and the processes by which such cases are investigated and brought to trial are matter of legitimate public interest; 5) although Mr Khuja was not a defendant in the Bullfinch case, his identity was not a peripheral or irrelevant feature of that particular story. Lord Sumption added that, as regards media reporting of court cases, the law recognised that – within the limits imposed by defamation law – the way in which the story is presented is a matter of editorial judgment, in which the desire to increase the interest of the story by giving it a human face is a legitimate consideration (Khuja v Times Newspapers and others [2017] UKSC 49). Lord Sumption’s reference to the ‘limits’ of defamation law was apparently to the requirements of the privilege defences that reporting of court cases must be fair and accurate. See 22.5.1 and 22.7.1 in McNae’s about these requirements.
16.10 Challenging orders made under section 11 of the Contempt of Court Act 1981
16.10.2 Has the name or matter been withheld from the public?
Case study: In 2012 David Graham, of Blackpool-based Watsons Press Agency, cited the R v Arundel Justices case when he persuaded a district judge to revoke a section 11 order. The order had banned the identification of the former professional footballer Alan Burrows, aged 70, in the reporting of a court hearing in which he was made subject to a sexual offences prevention order (SOPO). The SOPO banned Burrows, who once played for Blackpool FC, from contact with children. Mr Graham pointed out that Burrows was named in open court when the SOPO proceedings began (Media Lawyer, 18 June 2012).
NB: Orders which can be made to restrict the activities of sexual offenders are explained soon in this Additional Material.
16.10.8 Anonymity is generally not needed for corporations in blackmail cases
Case study: A High Court judge said in 2020 that when a corporation (such as a company) is the alleged victim in a blackmail case, the administration of justice does not generally require it to have anonymity in reports of the case. At a pre-trial review, Mr Justice Warby refused to grant an order to provide the supermarket company Tesco with anonymity in reports of a trial due to take place at the Old Bailey (a Crown court) in which farmer Nigel Wright was charged with blackmailing Tesco. Wright was subsequently convicted of the blackmail, in which he anonymously sent Tesco demands for £1.4 million, saying he had placed contaminated baby food in some of its stores. He said if the money was not paid the locations of those stores would be kept secret, and/or contaminated goods would be placed in other stores. He had placed pieces of metal in jars of baby food, which were purchased by customers, in two stores. He was arrested after an undercover police operation. When the case was in its early stage passing through a magistrates’ court, the magistrates made an order under section 11 of the Contempt of Court Act 1981, which banned reports from revealing that the alleged victim of the blackmail was Tesco, and that the section 11 order had been made. Tesco subsequently asked Mr Justice Warby at the Old Bailey to make an order to continue permanently its anonymity in reports of the case. Tesco’s barrister argued that if it was identified as the blackmail victim its reputation for selling safe food would be ‘very seriously damaged’ and its revenue would fall. The barrister also argued that as Wright’s defence was that he was being pressured by other people to carry out the blackmail, the public would conclude that there may be people still at large who were interfering, or causing others to interfere, with its goods. Mr Justice Warby said that case law showed there were two distinct reasons for providing anonymity for an alleged victim of blackmail, which were encouraging that alleged victim to come forward and give evidence, and encouraging other alleged victims of blackmail, in future cases, to do that (he cited R v Socialist Worker Printers and Publishers Ltd ex p. Attorney-General [1975] QB 637). He said those reasons applied in a case ‘in the classic mould’ where the blackmail threat was to expose a shameful secret or something else which the alleged victim wanted to hide. But he pointed out that the Wright case was not of that mould because Tesco is a substantial corporation, and nobody had suggested in the case that it had done anything disreputable or discreditable, or had anything to hide. The threat was not to disclose any shameful or embarrassing secret about Tesco. He added: ‘An individual threatened with disclosure of an extra-marital affair or some other “classic” blackmail material is not likely to be deterred from reporting the matter or taking action by thinking that a major national supermarket chain was identified when it was threatened with contamination of its food products, and associated bad publicity, if it failed to pay up.’ Mr Justice Warby dismissed the argument that Tesco might suffer reputational harm if it was identified as the alleged victim. He said it would not be rational for a member of the public, learning the facts of the case, to think the worse of Tesco, because the case concerned ‘historic’ events and Wright was in custody. He added that it would not be rational either for people to shun Tesco on the basis that there might be someone ‘out there’ putting pressure on others to contaminate foodstuffs and place them on the shelves of its stores. He said: ‘The Court will not generally make orders based on the assumption that members of the public will behave irrationally’. Hr referred to open justice principles, including as stated in Scott v Scott, that the parties and witnesses in a court case should normally be identified to the public. It was not necessary for the administration of justice in the Wright case for Tesco to have anonymity, he said (R v Wright (Ruling on Anonymity) [2020] EW Misc 22 (CCrimC)). For context on use of section 11 in blackmail cases, see 12.5 in McNae’s. For Scott v Scott, see the Additional Material for ch. 15. Wright, aged 45, of Osgodby, Market Rasen, Lincolnshire, was jailed for 11 years for blackmailing Tesco and for a further three years for other blackmail (BBC online, 12 October 2020).
Section 11 orders in hearings about measures to prevent sexual or trafficking offences
A court which believes an individual could commit a sexual offence has two powers created specifically to minimise that risk. A ‘sexual harm prevention order’ can be imposed on a person already convicted of a sexual offence or cautioned for one, and who poses a risk of sexual harm to the public. The order could, for example, ban a man convicted of a paedophile offence from communicating with any child, including on the internet, or from loitering near schools, or it could ban a man who has a record of sexual assault from approaching any woman he does not know. The order can be imposed in a Crown or magistrates’ court in a sentencing hearing, or if the police or National Crime Agency applies to a magistrates’ court. This type of order replaced an earlier version known as a sexual offences prevention order (SOPO).
A ‘sexual risk order’ can be made – again, to restrict activity in some way – against a person who has not been convicted of a sexual offence but who has done an act of a sexual nature and, as a result of which, there is reasonable cause to believe that it is necessary to make the order protect the public from harm. The order can be imposed by a magistrates’ court on the application of the police or the Agency.
Home Office guidance says it is normal practice for some police forces to ask magistrates, at the outset of a hearing which decides whether either type of order should be imposed, to make an order under section 11 of the Contempt of Court Act 1981 to ban reports of the hearing from publishing the name and address of the person against whom the sexual harm prevention or sexual risk order is being sought.
The guidance suggests that any public disorder arising from public knowledge of his or her involvement in such proceedings would make him or her more likely to abscond – and therefore for it to be harder for the police to monitor that person’s behaviour.
There is similar Home Office guidance about civil orders which can be made by a court to restrain the activities of people convicted or suspected of slavery or human trafficking offences under the Modern Slavery Act 2015.
Both sets of guidance say: ‘It is for the court to decide whether such a prohibition [a section 11 order] is necessary.’
For the Home Office guidance, see Useful Websites, at the end of this Additional Material.
The media can argue in court that such a hearing needs unrestricted reporting because the public should be able to know the identity of an individual considered by the police to pose such a risk of criminal offences.
It should be noted that if a section 11 order is made applying to reports of the hearing about whether the person’s activities should thus be restricted, it does not ban the individual being named in other contexts.
Case study: In 2000 Gary Allen was acquitted of the murder of Hull sex worker Samantha Class, aged 29, a verdict widely considered perverse. Soon afterwards he assaulted two sex workers in Plymouth, for which he was jailed for five and a half years. Psychiatric reports said he posed a high risk of sexual re-offending. After his release he moved to Grimsby. There, at the police’s request, a district judge in 2010 made a sexual offences prevention order (SOPO) banning Allen from approaching sex workers or entering red-light areas. The judge also made an order under section 11 of the Contempt of Court Act 1981 banning publication of Allen’s address in connection with the SOPO. But the Grimsby Telegraph was able to legally report, as it did, that Allen had moved to the area, his previous offences and the view that he remained a danger to women. Soon after this it reported that he had been arrested in the red light area in nearby Scunthorpe. Neither report gave his address or referred to the SOPO case (at that time covered by another reporting restriction), so the section 11 order was not breached. Allen asked the High Court for a permanent anonymity order to prevent the media revealing the SOPO’s existence. The court refused, saying the public’s need to be protected against the risk of Allen re-offending outweighed his rights to privacy (Allen v Grimsby Telegraph [2011] EWHC 406 (QB)).
In 2021 Allen, 47, was re-tried for the murder of Samantha Class, after a Court of Appeal ruling in an unrelated case meant other evidence became admissible against him. This time he was convicted of her murder. In the same trial he was convicted of the murder of Alena Grlakova, 38, in Rotherham in 2018. She too was a sex worker (BBC online, 17 and 23 June 2021). For an article by court reporter Mark Naylor about Allen, see Useful Websites at the end of this Additional Material.
16.11 Anonymity, addresses—and risk of harm?
16.11.2 Are the public already aware of the case and the defendant’s address?
Case study: In 2021 at Ballymena magistrates’ court, district judge Peter McGill refused to make a section 11 order to ban publication of the address of a man charged with intentionally inciting a female child to engage in sexual activity. The man’s solicitor, asking for the order, said the allegation had almost led to a public disorder incident, and consequently police had to go to the area because of ‘high community tensions’. But the judge agreed with freelance reporter Tanya Fowles, who addressed the court, that as the alleged community backlash showed the defendant’s address was already known in it (which the solicitor acknowledged), a section 11 order would be pointless (Holdthefrontpage, 1 September 2021).
16.11.3.1 Police and prison officers
Case study: In 2017 a lawyer for a police officer asked Hereford magistrates’ court to impose a section 11 order banning the media from publishing his home address, citing the current security fears in the wake of the London and Manchester terror attacks. The officer was charged with assaulting a woman by beating her, which he denied. Hereford Times reporter Ben Goddard argued that national security grounds were not sufficient to justify banning publication of the officer’s address, saying: ‘The public has the right to know. We have people ringing up regularly with requests for their address to be withheld which are declined. Being a police officer is no different to any other profession.’ The magistrates ruled that the Times could publish the officer’s address (Holdthefrontpage, 8 June 2017).
16.11.5 Anonymity based on fairness to witnesses who have safety fears
Case study: In 2017 a High Court judge ruled that prison officers due to testify in a personal injury case could remain anonymous in its proceedings and give evidence from behind a screen because they feared a risk of harm if they were identified in reports of the case. This ruling was based on the common law ‘duty of fairness’ to witnesses. The personal injury claim was brought by Islamist extremist Michael Adebolajo, who is serving life for the murder of Fusilier Lee Rigby. Adebolajo brought the claim against the Ministry of Justice and a number of prison officers over injuries which Adebolajo said he suffered during an incident in a cell. In the hearing about whether the officers should have anonymity, Mr Justice Langstaff was referred to a police report that Adebolajo was committed to terrorism and wanted to further the cause of Islamic State. The court was told that a threat had been made to one prison officer, but an investigation could not corroborate that it was linked to Adebolajo. Mr Justice Langstaff said that the evidence of a threat to the officers’ safety was of a potential as opposed to a real risk, and so he rejected argument that their Articles 2 and 3 rights were engaged as regards their application for an anonymity order. But on the common law issue, the judge took a different view, saying that the evidence from the officers was that they were fearful. The judge said that was a real fear, even if the risk to them was not objectively verified, and that an anonymity order could be made in common law if necessary when a party feared that he might be put at risk if his identity was revealed, and where making such an order was in the public interest because refusing to make it might prevent that person from doing his job. A statement from the prison officers expressed fear for their safety and explained that they were suffering from stress due to the mounting publicity. It said that three were taking anti-depressants and there had been an impact on their family lives. The judge said this evidence suggested that they were being subjected to unnecessary unfairness (Media Lawyer, 2 November 2017).
16.12 Challenging court orders giving a child or young person anonymity
16.12.1 Challenging section 45 anonymity
Case study: In 2017 the Court of Appeal ruled that the media could name Kim Edwards and Lucas Markham, both 15, who jointly committed a double murder. The Court said that preserving their anonymity would impose ‘a substantial and unreasonable restriction’ on the reporting of the case, and that it was in the public interest to remove that restriction. The murder victims were Kim’s mother Elizabeth, 49, and her sister Katie, 13. Kim Edwards and Markham, who were in a besotted relationship, plotted to kill Mrs Edwards and Katie because Kim believed her mother favoured Katie over her. Kim Edwards let Markham into the family home, in Spalding, Lincolnshire, and he killed Mrs Edwards and Katie by stabbing them both and smothering Katie as they lay in their beds. Leaving the bodies upstairs, Kim and Markham stayed in the house for two days watching films, having sex and drinking. The murders were discovered when police broke into the house after concerns were raised that no-one had seen the family for some time. Kim Edwards and Markham said later they had intended to kill themselves with alcohol and pills after the murders, but in the end decided against it. Markham admitted the murders. Kim Edwards pleaded guilty to manslaughter by reason of diminished responsibility but denied the two murder charges brought because of her involvement in planning and carrying out the killings. At a hearing before her Nottingham Crown Court trial, Mr Justice Haddon-Cave made an order under section 45 of the Youth Justice and Criminal Evidence Act 1999 granting anonymity to her and Markham in respect of any publication about the case. Media organisations opposed this, citing open justice principles, the gravity of the crimes, that the teenagers had admitted the killings, that the order placed an unreasonable burden on the media properly and substantially reporting the case, and that knowledge of the crimes and identity of both defendants had ‘widely travelled among friends, relatives and wider family’. But the judge made the order on the basis that the ‘integrity’ of the trial needed to be protected by safeguarding Kim Edwards’ emotional welfare during it, because she would be under increased pressure as it approached. She had intimated that she might kill herself. He said her welfare could be adversely affected if she was named in coverage during the trial, and there was potential for a ‘social media storm’ if she was known to be the defendant, or Markham to be the person who had admitted the murders. The judge also referred to ‘unwanted press intrusion’ at the secure unit in which she was housed. That Mrs Edwards and Katie had been murdered had been publicised after their bodies were discovered. They could be identified as victims in reports of Kim’s trial, but the section 45 order meant that media coverage of the trial could not explain that the murders which she—the anonymised defendant—was accused of were of relatives, or explain detail of motive. Because most references to evidence and psychiatric reports could not be included to preserve her anonymity, anyone reading the restricted coverage would not have known why Mrs Edwards and Katie were murdered. The jury convicted Kim Edwards of the murders, after which Mr Justice Haddon-Cave heard fresh media arguments that she and Markham should be identified as the murderers. Lawyers for news organisations argued that there was no longer any need to protect Kim Edwards’ state of mind over her involvement in the trial; there was a strong public interest in people fully understanding the events covered in the trial; and that there would be a potentially beneficial effect of public identification of the murderers, because it would deter others who might consider committing such a crime. The lawyers added that the anonymity would automatically lapse anyway when the pair turned 18. Lawyers for the pair and the local council argued that the order should remain in place. Mr Justice Haddon-Cave rejected the argument about the deterrent effect, but lifted the section 45 order, saying there was a strong public interest in full and unrestricted reporting of the case, and a high public interest in identifying Kim Edwards and Markham because they were guilty of an exceptionally grave crime. If the media were unable to identify them, the trial would be deprived of meaning and context because it would be impossible for the public properly to understand that the murders took place in a closed family context, which would exacerbate ‘the risk of uninformed and inaccurate comment’ about the case, he said. The judge noted that in any event the section 45 order would expire when each defendant turned 18 and that they would be incarcerated for many years beyond that date. The anonymity remained in place for a further six months because Kim Edwards and Markham appealed against the lifting of the order. The campaign group Just for Kids Law successfully applied to be an ‘intervener’ to support their arguments. But the Court of Appeal upheld the decision to lift the anonymity, endorsing Mr Justice Haddon-Cave’s approach and saying that no evidence had been produced that reporting the pair’s identities before the automatic expiry of the anonymity when they reached 18 would adversely affect their future rehabilitation. The Court of Appeal also considered argument that removing Markham’s anonymity would cause a risk of him harming himself, but ruled that the judge was right to rule that the risk was not substantial enough to engage on Markham’s behalf rights under Articles 2 or 3 of the European Convention on Human Rights (the right to life and the right against degrading treatment) (Markham and another v R [2017] EWCA Crim 739).
Case study: In 2018 at the Old Bailey Judge Nicholas Hilliard QC revoked a section 45 order to allow the media to identify sixteen-year-old Abdulrahman Ali, from Tottenham, who stabbed former friend Osman Sharif Soifi, also 16, to death in a street, after a row between them on Snapchat. The judge said that there was a public interest in removing Ali’s anonymity, given the public concern about knife crime and the gravity of the murder. Allowing him to be identified would also serve as an added deterrent, the judge said (Press Association, 26 January 2018).
Case study: In 2018 Judge Richard Marks QC, the Common Serjeant of London, revoked a section 45 order to allow the media to identify 17-year-old Rimel Hanchard, of Gipsy Hill, south-east London, after his conviction for the attempted murder of a 14-year-old boy. Hanchard knifed him three times in the face and neck, almost blinding him and severing an artery, after the boy stepped forward during a brawl in Croydon town centre, apparently to be a peacemaker. The judge, who jailed Hanchard for seven-and-a-half years, said: ‘This is an offence of the type that has reached epidemic proportions, particularly among young people in the Greater London area’. He added: ‘I have no doubt that in the particular circumstances that pertain here that it's appropriate to lift the ban on publicity which would normally apply in the case of somebody under the age of 18’ (Evening Standard and Croydon Advertiser, 27 July 2018),
16.12.3.6 An anonymity order cannot validly be made if the person is dead
Case study: In 2016 during a preliminary hearing of a case at Maidstone Crown Court, Judge Jeremy Carey made - as an interim measure -a section 45 order banning publication of the identity of dead baby Eli Cox in reports of or references to the case. The order was sought by the prosecution on behalf of Kent County Council. Eli had died, aged five months, of a ‘catastrophic’ head injury at a house in Minster, Isle of Sheppey, Kent. The two defendants in the case were his mother Katherine Cox, 32, who had eight other children, and her boyfriend, Danny Shepherd, 25, both of Millfield Road, Faversham. They denied causing or allowing Eli’s death and causing or allowing physical harm to him. The order was challenged by journalists Keith Hunt for the KM Media Group and Julia Roberts of the Ferrari News Agency. Their submitted written argument said in part: ‘We submit that the court does not only have no power to make an order giving anonymity to a dead child, it has no power to make any order giving anonymity to any other child of the family who is not a victim, witness or defendant in the case.’ Subsequently Judge Carey said that the prosecution had withdrawn its application, and that he had decided that there was ‘no basis in law’ for making the order sought. Shepherd and Cox were convicted of the charges, which included possessing the drug amphetamine. The council’s spokesman said Eli’s siblings were now ‘being appropriately cared for’ following the conclusion of care proceedings (Press Gazette, 14 December 2016; BBC website, 3 August 2017).
16.12.5 Challenges to anonymity in anti-social behaviour or criminal behaviour cases
Courts have the power to make orders in civil law to curb anti-social behaviour—see 10.7 in McNae’s and the Additional Material for ch.10. As explained there, courts can impose reporting restrictions to provide anonymity for children or young persons made subject to such measures and for those accused of breaching them.
Anti-social behaviour orders (ASBOs) have been replaced by Anti-social behaviour injunctions (ASBIs), but case law on ASBOs can be relevant to ASBIs and CBOs.
Mr Justice Wilson said in the High Court in 2001 that in most cases magistrates should not ban identification by the media of a child subject to an ASBO, because the effectiveness of such orders would often depend on the local community knowing that the ASBO applied to that child (Medway Council v BBC [2002] 1 FLR 104).
A breach of a CBO is a criminal offence. Breach of an ASBI is a contempt of court. Both types of breach would normally be dealt with in a youth court. But section 49 of the Children and Young Persons Act 1933 does not apply a child or young person accused of such a breach, so there is no automatic anonymity for them as regards reports of such proceedings.
Journalists should be aware of official guidance about ASBIs and CBOs, because it may be useful to cite it when, for example, a media organisation is arguing in court against an anonymity order being made or continued for a young person who is a persistent offender.
Home Office guidance on ASBIs and CBOs, published for ‘frontline professionals’, says: 'When deciding whether to publicise the injunction [or a CBO], public authorities (including the courts) must consider that it is necessary and proportionate to interfere with the young person’s right to privacy, and the likely impact on a young person’s behaviour. This will need to be balanced against the need to provide re-assurance to the victims and the wider community as well as providing them with information so that they can report any breaches. Each case should be decided carefully on its own facts.’
The Youth Court Bench Book, which is guidance published by the Judicial College for these courts, says of ASBIs and CBOs: ‘The court will need to consider whether or not to use its discretionary powers to make any order restricting publicity balancing the interests of the public to know about such cases against the welfare of the child or young person concerned. The publication of the name, address and even a photograph of a child or young person may be appropriate where an ASBO [sic] has been granted if such publicity would ensure the enforcement of the order. The success of such orders requires the general public, especially in the local area, to be aware of the order and the identity of the person against whom it has been made. Publicity should not be used as a punishment.’
See Useful Websites, below, for both sets of this official guidance.
16.14.2 Challenging section 45A or section 46 anonymity
16.14.2.1 Is there ‘fear’ or ‘distress’ and would the quality of evidence really be diminished?
Case study: In 2010 at the Old Bailey Judge Jeremy Roberts refused to make an order under section 46 of the Youth Justice and Criminal Evidence Act 1999. The order had been requested by the prosecutor, who wanted anonymity for a 58-year-old woman. She was a prosecution witness in a case in which two men faced charges relating to possessing unlicensed herbal medicines. The judge, after hearing the Press Association’s arguments that such an order would not be justified, said he did not believe that the quality of her evidence was likely to be diminished if he did not make the order, adding: ‘She is a responsible, obviously intelligent lady. She has held a very responsible position in the past’ (Media Lawyer, 10 February 2010).
Case study: At Blackpool magistrates’ court in 2009 a journalist successfully opposed a prosecution application that section 46 anonymity was needed for a barrister to improve the quality of his evidence. He was a prosecution witness in an assault case in which—the prosecutor said—the defendant was expected to make derogatory allegations (Media Lawyer, 7 April 2009).
16.14.2.2 Does the section 45A or 46 order serve much purpose?
Case study: In 2007 a judge at Kingston Crown court made a section 46 order banning identification of witnesses due to testify as the victims of an attempted robbery. But she lifted it after the Newsquest newspaper group and local reporters pointed out that the defendants knew the witnesses, whose identities were already in the public domain as they had previously been named in open court, and that if the order remained in force the media would no longer be able to identify the victims or say where the offence occurred (Holdthefrontpage website and Media Lawyer, 19 and 20 September 2007).
Useful Websites
Home Office guidance on Part 2 of the Sexual Offences Act 2003, including on sexual harm prevention orders and sexual risk orders
Home Office guidance on slavery and trafficking prevention orders and slavery and trafficking risk orders
www.grimsbytelegraph.co.uk/news/grimsby-news/killer-gary-allen-most-evil-5548825
Mark Naylor’s article about Gary Allen
Home Office Factsheet ‘Replacing the ASBO’
Home Office guidance on ASBIs and CBOs,
https://www.judiciary.uk/wp-content/uploads/2020/06/Youth-Court-Bench-Book-June-2020-1.pdf
Youth Court Bench Book