‘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?

Court of Appeal Rules Trial Cannot be Held in Secret

The Court of Appeal has today ruled that a terrorism trial cannot be held entirely in secret and the names of the defendants cannot be withheld.

Background

The Crown Prosecution Service (CPS) brought terrorism charges against two defendants, known as AB and CD. AB is charged with preparing acts of terrorism under section 5 of the Terrorism Act 2006, and with collecting information likely to be useful for terrorism under section 58 of the Terrorism Act 2000. CD is also charged with an offence under section 58 of the 2000 Act, and with possession of false identity documents with an improper intention under section 4 of the Identity Documents Act 2010.

Much of the evidence to be relied on has been obtained by the work of the intelligence services. It is by its very nature secret. Therefore the prosecution applied to have the entire trial conducted in private with the names of the defendants withheld. The application was supported by Ministerial Certificates from the Home Secretary and the Foreign Secretary which set out why the evidence should be kept secret. Mr Justice Nicol initially dealt with the application.  Part of the hearing was open, part was in private (in the absence of the media), and part was held in the absence of all except the prosecution (known as an ‘ex parte’ hearing) (this is where the highly sensitive material was discussed). Nicol J’s two primary conclusions were, firstly, that the trial could be conducted entirely in camera (in private) and, secondly, the defendants’ names could be withheld.

The media appealed both of these conclusions to the Court of Appeal under section 159 of the Criminal Justice Act 1988. Sitting in the Court of Appeal, Lord Justice Gross, Mr Justice Simon and Mr Justice Burnett overturned Mr Justice Nicol’s decision.

The court noted that open justice is a fundamental principle of the common law and a way of ensuring public confidence in the legal system (for more on the common law, see this article). The reason for this is clear: if we can see justice in action and can verify that the course of justice proceeds correctly, we can have confidence in the justice system. The court said exceptions to the principle of open justice are rare and must be ‘necessary and proportionate’.

The court further noted that national security is also a national interest of the highest importance, and the work of the security services must remain secret as a matter of necessity. Consequently, tensions can arise between the secrecy demanded by national security and the openness demanded by open justice.

The court explained that the tension between national security and open justice is resolved according to the following principles:

• Firstly, considerations of national security will not by themselves justify departing from open justice.
• Secondly, open justice must, however, give way to the more fundamental principle that justice must be done. Therefore, where there is a serious possibility that insisting on open justice in the national security context would frustrate justice by, for example, deterring a prosecution where there should be one, a departure from open justice may be acceptable.
• Thirdly, the question of whether to give effect to a Ministerial Certificate (which states the need for secrecy) is for the court. However the court will not lightly depart from an assessment made by a Minister.

Applying these principles, the court held, firstly, that there was a significant risk that the administration of justice would be frustrated if the trial were to be conducted in open. Indeed, the prosecution might not continue at all if it was forced to reveal secret information in public. Therefore it was necessary that the core of the trial must be held in camera. However, there would be no risk to the administration of justice if the following elements of the trial were heard in open court:

• Swearing in of the jury;
• Reading the charges to the jury;
• At least part of the judge’s introductory remarks to the jury;
• At least part of the prosecution’s opening;
• The verdicts; and
• If any convictions result, sentencing (subject to further legal argument).

These elements will therefore be conducted in open court.

The court held, secondly, that given the core of the trial would be held in private, there was no risk to the administration of justice requiring the names of the defendants to be withheld. They can therefore be named as Erol Incedal (AB) and Mounir Rarmoul-Bouhadjar (CD).

Accordingly, the Court of Appeal disagreed with Mr Justice Nicol on both issues. Although it permitted the core of the trial to be held in private, it refused to permit an entirely secret trial and declined to withhold the names of the defendants. It added the following warning: ‘We express grave concern as to the cumulative effects of (1) holding a trial in camera and (2) anonymising the defendants. We find it difficult to conceive of a situation where both departures from open justice will be justified’.

Comment

This decision should be welcomed. The very core of British justice is open justice. Indeed, it is said that ‘…justice should not only be done, but should…be seen to be done’. An entirely secret trial would have set a dangerous precedent. While it cannot be said a trial should never be entirely secret (where the interests of justice so require), it can be said that only the most exceptional circumstances will justify this course. Those circumstances were not present here.

What are your thoughts on open justice?

Further Arguments on Cameras in Courts

Last week history was made with the first television broadcast from the Court of Appeal. The next step, the Government says, is the broadcasting of remarks made by judges during the sentencing of convicted offenders. However, trials will not be broadcast. Meanwhile television companies ultimately seek to broadcast trials, and some senior members of the judiciary foresee that as the end result.

So is the broadcast of full trials desirable? I firmly believe it is not and shall seek to persuade you why.

An Argument Against Broadcasting Trials

It is almost inevitable that the broadcasting of trials would lead to short snippets of edited footage appearing on news programmes. This editing of raw footage into newsworthy sound bites is the first concerning prospect televised trials present. Edited material is peculiarly dangerous since it does not present the whole picture and, in its worst form, can positively misrepresent a situation. I recall an excellent example of this danger which, as it happens, concerned the print media, who has long been welcome along with the rest of the public to attend trials for the purposes of reporting. This particular case concerned serious allegations against a professional male of grooming a 15 year old male teenager. Although the defendant was not charged with the offence, rape was also alleged. A local newspaper reporter attended and listened to the entirety of the complainant’s evidence. Like much unchallenged evidence it sounded convincing. At the conclusion of the complainant’s evidence the reporter left and did not subsequently return. She missed one of the best displays of cross-examination I have ever seen, which exposed the teenager’s evidence as grossly inconsistent at best. Sure enough however, the newspaper’s report covered the salacious detail of the allegations yet failed entirely to report on the systematic explosion of the complainant’s evidence. Instead, a short article later appeared that said the defendant had been cleared. Overall, the reporting was inaccurate and highly damaging to a demonstrably innocent man. The inalienable stigma of being accused of a sexual offence was not countered at all by accurate reporting. Instead, I suggest it was exacerbated by incomplete reporting. I am not for a moment suggesting that was the reporter’s intention, but it was the inevitable consequence of ‘edited’ reporting, reporting that did not present the full picture but instead presented an incomplete one.

Complex fact scenarios do not lend themselves to being edited into a short segment. When they are reduced to this, a misleading picture is almost certain to follow. This is extremely dangerous. Returning to the unfortunate defendant I mentioned above, had that trial been edited into a news segment it might very well have misled in exactly the same way as the newspaper report. Now however, instead of a local readership gaining an inaccurate impression the whole nation can gain one. The defendant would be indelibly marked in the national consciousness with the stigma of having been accused of a sexual offence. To my mind that is not justice, that is rank injustice.

We are of course familiar with edited material. We are often subjected to recordings of Parliament than have been edited. Shortened edited portions present one picture, while anyone who watched the proceedings in full on BBC Parliament has often seen another. The distortion that edited material creates is intensified by the on-demand media consumption culture we now live in. We do not receive this edited information on sporadic news broadcasts. Instead news is broadcast all day, every day, and modern technology allows us to consume news on the move. Edited, inaccurate material has the ability to be all pervasive and it is positively dangerous. So if it is the editing of material that is problematic can we not safely broadcast uninterrupted trials? This requires a more general examination of the arguments against broadcasting trials.

Firstly, it takes a great deal of courage for the victims and witnesses of crime to attend court and give evidence. It is often difficult to secure their attendance; most people understandably fear giving evidence. It seems to me to be highly probable that broadcasting proceedings would make it even more difficult to secure the attendance of victims and witnesses (although I do not have statistical evidence to support this). Victims and witnesses are often required to recall extremely disturbing events in their life, events which they rarely wish to recall; especially to the unknown individuals they face in a courtroom. Requiring them to recall events in the knowledge that they are being broadcast nationally is, I suggest, likely to deter victims and witnesses from coming forward so that they can avoid that level of publicity. You might respond that everything a witness says can be reported in the print press, so does television broadcasting make a difference. I argue that it does: reading words is not the same as seeing the actual individual presenting the evidence in their own voice. Words are dissociated from the person, but audio images are not; the spotlight is squarely on an identifiable and vulnerable individual. Even if the individual were not shown on screen their voice identifies them far more than reading their spoken words in a newspaper. Perhaps the only way to avoid this is to obscure witnesses’ voices too. So far as I know, this has not been suggested as a realistic or desirable option.

In my view, it is far more important that we secure justice (through a trial) by ensuring victims and witnesses are not deterred from giving evidence, rather than televising trials in the pursuit of open justice. After all, if justice is thwarted by victims and witnesses being deterred from giving evidence then what we are televising could hardly be described as justice. It would be a façade of justice while many crimes fail to reach trial where a just outcome can be secured. You might respond: ‘How do we know we have secured justice if we cannot see it? Is it not a vital principle that justice must not only be done but be seen to be done?’ Yes it is. But justice can be seen and can be checked; it is just limited to those in attendance at the court. I suggest that the number of people that a witness anticipates might see them giving evidence affects their willingness to give evidence. If that is the case, it is better that we secure justice and limit the number of people directly observing the witness giving evidence, rather than televising all proceedings in the pursuit of open justice.

A second argument against broadcasting trials appears to be that television companies are interested only because of the potential for salacious content, not to ensure that the course of justice is openly broadcast in its entirety. I am prepared to be corrected on that point, but I have not seen any television companies offering to fund the broadcast of complete trials to ensure they are not misleading. What instead appears to be desired is newsworthy snippets of sensational material. This leads us back to the dangers of edited material.

Meanwhile we must ask what broadcasting trials would achieve? Likely positive outcomes include a better understanding of the court system and perhaps greater for respect for it and its participants. But this is nothing that we cannot already achieve. Simply attending a court can result in these outcomes. You might respond that this is not practical for many people as they work or have other commitments. My response is simply that there is no established lobby by members of the public demanding the broadcasting of trials. The public appears to be perfectly content to read court news. Moreover, these outcomes do not outweigh the risk to justice identified above: there is little point televising trials if it is likely to damage justice.

Conclusion

The issue of televised trials is not simply matter of improving open justice. The aim of the justice system is to ensure just outcomes. Televised trials pose a risk to justhat is not outweighed by the benefits of open justice. We should not therefore allow justice to be compromised by televised trials.

What are your thoughts?

Veils, Jurors and Justice: The Law in Summer 2013

LawScape has now returned from its summer break. The summer months are traditionally quieter in the legal world as Parliament, many of the courts, and much of the Government have a well deserved break. Some of the higher courts continue to enjoy that deserved break. However, the legal world has been anything but quiet this summertime.

Whether it is the continuing fiasco concerning legal aid, decisions about human rights, or the trial of television celebrities for sexual offences, it has been a very busy legal summer. Two of the most interesting developments for me have been the announcement that individuals up to the age of 75 will in future be able to serve on juries, and the decision that a Muslim woman on trial for witness intimidation must remove her niqab (veil) if and when she gives evidence.

Older Jurors

The announcement that those aged up to 75 will now be able to sit on juries is a welcome one. The right to be tried by our peers is one that has its foundations in the 1215 Magna Carta (the ‘Great Charter’). We are very defensive of our right to be judged by a random selection of people that represent our society. In recent years however, juries have not be able to represent the oldest members of our society: the over 70s. In the past, this group did not make up a significant proportion of the population. But we are now all living a great deal longer, so the over 70s represent a significant proportion of the population. If our jury system is to continue to produce juries that represent our society, then it must be possible to have the over 70s selected. Not only will this ensure that juries reflect modern society, but it will make use of the very great and important life experience that the over 70s have acquired. The announced change is to be commended.

The change will be effected by an amendment to the Juries Act 1974. Currently this provides that only those aged 18 to 70 may sit on a jury.

Veils in Court

This week His Honour Judge Peter Murphy decided that a female Muslim defendant charged with witness intimidation must remove her veil if and when she gives evidence. At other times, however, she may continue to be veiled.

The judge had to balance the woman’s right to express her religious beliefs (under Article 9 of the European Convention on Human Rights) and the public interest that criminal trials are conducted in accordance with the rule of law, open justice and the adversarial nature of our trial system.

In essence, the judge held that the jury’s ability (and, to a lesser extent, the judge’s and lawyers’ abilities) to observe the defendant’s facial reactions to the questions they are asked is crucial and not to be compromised. The defendant’s evidence is crucial and when it is given the defendant must submit fully to the scrutiny of the jury. On the other hand, while a jury may observe the defendant’s reaction at other times (when they are in the dock not giving evidence) this is not sufficiently important to trump the defendant’s right to express their religion by wearing a veil. Accordingly, at other times the defendant may remain veiled.

Unsurprisingly, the decision has been controversial, with various individuals saying that the court went too far or did not go far enough. For my own part I remain undecided. In my opinion the court certainly did not go too far, it was right to order that a veil cannot be worn when a defendant gives evidence. The question is if it went far enough?

What are your thoughts?