‘Cannot be Named for Legal Reasons’: What Reasons?

Introduction

A frequent feature of many news reports on criminal trials is that certain individuals ‘cannot be named for legal reasons’. In this article I shall explain some of the main ‘legal reasons’ – known as reporting restrictions – that prevent the publication of the names of certain individuals or other information.

Children

The primary category of reporting restrictions applies to children. Since children are vulnerable, reporting restrictions are almost always imposed when they are concerned in criminal proceedings. For these purposes, children are those under the age of 18.

The nature of the reporting restrictions depends upon the court in which the child is appearing. In those cases where a child is appearing in the youth court, reporting restrictions are automatically imposed by section 49 of the Children and Young Persons Act 1933. Section 49 provides that no report can be published which reveals the name, address or school of any child, or which includes any information likely to lead to the identification of the child. Further, no picture of the child may be published. The restrictions apply whether the child is the defendant, the alleged victim or a witness: section 49(4) of the 1933 Act.

The court may lift the reporting restrictions in certain circumstances. Firstly, the court can lift the restrictions if it necessary to avoid injustice to the child: section 49(5)(a) of the 1933 Act. Secondly, restrictions can be lifted if the child is unlawfully at large and it is necessary to lift the restrictions for the purpose of detaining them: section 49(5)(b) of the 1933 Act. However, restrictions can only be lifted under this category where the child has been charged with, or convicted of, a serious offence: see section 49(6) of the 1933 Act. Finally, restrictions can be lifted under section 49 where the child has been convicted of an offence where the court is satisfied that it is in the public interest to do so: section 49(4A) of the 1933 Act. For example, Jon Venables and Robert Thompson were revealed as the killers of two-year-old James Bulger in November 1993, despite being only aged 11 themselves.

It is an offence to publish a report in contravention of section 49: section 49(9) of the Act. It is punishable by a fine of up to £5,000.

In those cases where a child is appearing in a magistrates’ court or the Crown Court, reporting restrictions may be imposed by the court under section 39 of the Children and Young Persons Act 1933. The reporting restrictions are not automatic, unlike section 49. Section 39 provides that a court may direct that no newspaper report can reveal the name, address, or school, or any information likely to lead to the identification of the child. Further, a direction may be given that no picture of the child may be published. Section 39 applies to sound and television reports just as it applies to reports in newspapers: section 57(4) of the Children and Young Persons Act 1963. The restrictions apply whether the child is the defendant, the alleged victim or a witness: section 39(1)(a) of the 1933 Act.

The court may lift the reporting restrictions at its discretion. It is an offence to breach a direction given under section 39: section 39(2) of the Act. It is punishable by a fine of up to £5,000.

Sexual Offences

Another important category of reporting restrictions concerns those who allege a sexual offence has been committed against them.

Under the Sexual Offences (Amendment) Act 1992, the alleged victim in a case involving one of the sexual offences mentioned in section 2 of the Act, which includes rape, is  automatically entitled to anonymity. Once an allegation of one of the relevant offences has been made, nothing may be published which is likely to lead members of the public to identify the alleged victim: section 1 of the 1992 Act. Under section 1, the reporting restriction lasts for the lifetime of the alleged victim.

Under section 3 of the 1992 Act, the restriction may be lifted by the court in two circumstances. Firstly, the court may lift the restriction if it is required by the defence so that witnesses will come forward and the conduct of the defence is likely to be seriously prejudiced if the restriction is not lifted: section 3(1) of the 1992 Act. This covers those cases where the defendant believes there are witnesses to the alleged crime that can corroborate the defendant’s account of the incident. Secondly, the court may lift the restriction if it is satisfied that the restriction imposes a substantial and unreasonable restriction on the reporting of the proceedings and it is in the public interest to relax the restriction: section 3(2) of the 1992 Act.

In addition to the court being able to lift the restriction, the alleged victim may also waive their right to anonymity in writing: section 5(2) of the 1992 Act.

It is an offence to publish information in breach of the restriction, punishable by a fine of up to £5,000: section 5(1) of the 1992 Act.

Name and Other Matters

Another broad power to impose reporting restrictions is located in section 11 of the Contempt of Court Act 1981. This provides that where the court uses a power it has under the common law (for more on the common law, see this article) to allow a name or other matter to be withheld from the public in the proceedings, the court may give directions prohibiting the publication of the name or matter in relation to the proceedings if it is necessary for a certain purpose.

This provision allows the courts to restrict reporting of, for example, the name and addresses of witnesses. It even allows the court to restrict reporting of the defendant’s name. This might be necessary where, for example, the defendant’s life might be endangered if their identity is known publicly. However, section 11 only applies where the court has already used a power it has to withhold a name or other matter. It cannot be used where the information has already been made public.

Publishing information in breach of this restriction is punishable as contempt of court.

Conclusion

There is a range of restrictions on court reporting. This article has sought to explain some of the most commonly imposed restrictions. A guide examining all reporting restrictions in the criminal courts has been published by the Judicial College, the Newspaper Society, the Society of Editors and Times Newspapers Ltd. The third edition was published today. It can be read here. It will be especially useful to the journalists amongst you. The range of restrictions should not, however, mislead anyone into believing that the British justice system is one that routinely restricts open reporting of criminal matters. On the contrary, the default principle of British justice is open justice: ‘…justice should not only be done, but should…be seen to be done’. This was seen last week when the Court of Appeal refused to hold a criminal trial wholly in private. Reporting restrictions are only imposed by the law when they are justified.

Do you agree with reporting restrictions? Do you think they are too extensive?