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Reporting Restrictions - Children and Young People as Victims, Witnesses and Defendants

Updated: July 2018|Legal Guidance

Role of the Prosecutor

Prosecutors should:

  • Be familiar with the circumstances where automatic reporting restrictions exist, along with the discretionary powers of the Court to restrict reporting and to restrict public attendance at hearings.
  • Draw the court's attention to these provisions in open Court, thereby enabling the Court to make appropriate orders and give advice to the media.
  • Be familiar with the rights enshrined in:
    • the European Convention on Human Rights, set out in Annex 2;
    • the United Nations Convention on the Rights of the Child, set out in Annex 3 and
    • the United Nations Standard Minimum Rules for the Administration of Justice 1985 (the Beijing Rules), set out in Annex 4.
  • Assist the Court to respect and protect the rights of young victims, witnesses and defendants.
  • Seek reporting restrictions where automatic reporting restrictions do not arise, unless the public interest outweighs the welfare of the young victim, witness or defendant. The welfare of the child is likely to favour a restriction on publication. Examples include, restricting the reporting of the identity of a young defendant who is being tried in an open court because they are jointly charged with an adult; or where a young witness fears that public identification will threaten their safety. Any application should seek restrictions for such period as is necessary to meet the interests of justice.
  • Only seek the lifting of automatic reporting restrictions after conviction in the narrowly prescribed circumstances set out in this guidance.
  • Comply with and encourage compliance by other parties and interested persons with Part 6 of the Criminal Procedure Rules (CPR);

The tension between Open Justice and Privacy

The starting point is that the administration of justice should occur in public so that justice is seen to be done. Cases should be heard in open court so that the public can access and the media can report proceedings. Courts are public authorities for the purposes of the Human Rights Act 1998 and must not act in a way that is incompatible with a right guaranteed under the European Convention on Human Rights (section 6 Human Rights Act 1998).

The principal exception to the open justice principle relates to youth court proceedings, which by statute are not open to the public. Section 49 of the Children and Young Persons Act 1933 (CYPA 1933) places an automatic restriction on reporting information that identifies or is likely to identify any person under the age of 18 who is concerned in youth court proceedings as a victim, witness or defendant.

Additionally, there is now a discretionary power under section 45 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) to restrict reporting the identity of victims, witnesses and defendants under the age of 18 who appear in magistrates' courts and the Crown Court. The protection provided by these provisions is subject to and should be interpreted in accordance with the rights contained in the European Convention of Human Rights (Annex 2) and in the United Nations Convention on the Rights of the Child 1989 (UNCRC) (Annex 3). The UNCRC has been ratified by the UK so although it has not been formally incorporated unto the law in England and Wales, the Articles have binding force. It also informs the way that the ECHR is interpreted in cases involving children and young people under the age of 18.

All courts must also have regard to the welfare of all children and young people who attend the court as victims, witnesses or defendants (section 44 CYPA 1933) and this will be a relevant consideration when deciding whether reporting should be restricted. The welfare of the child is likely to favour a restriction on publication. Any decision to lift reporting restrictions must be necessary, proportionate and there must be a pressing social need for it (Article 10 ECHR).

The general rule is that reporting restrictions expire when the young person attains the age of 18 as he/she is no longer a child in the proceedings and does not come within the child protection remit of the CYPA 1933 whether under section 39: R v CCC ex p W, B and C [2001] 1 Cr. App R (2) or section 49: T v DPP and North East Press 2003 EWHC 2408 Admin. The purpose underlying these sections is not to protect the interest of young people who have become adults. The Section 45 reporting restriction ceases to apply when the young person reaches the age of 18. In these circumstances, the court now has the power to impose life-long anonymity under Section 45A YJCEA if the relevant conditions are met. See section on lifelong immunity below.  

Automatic Reporting Restrictions

Section 49 Children and Young Persons Act 1933: Youth Court

Introduction

The general rule is that proceedings in the youth court are not open to the public (Section 47 CYPA). Under Section 49, although press representatives are permitted to report on proceedings, they are automatically restricted from reporting the identity or any details that would lead to the identity of any child or young person involved in the proceedings, whether as a defendant, witness or victim. Section 49 also applies to:

  • Appeals from the youth court, including an appeal by way of case stated;
  • Proceedings in the magistrates’ court for breach, revocation or amendment of a Youth Rehabilitation Order and appeals against such proceedings (Section 49(2) CYPA).

The Crown Court must hear an appeal from the magistrates court (including the youth court) in public, even though reporting restrictions apply automatically. However, it may order such a hearing to be in private (CPR 63.7) and Prosecutors should usually make an application for a private hearing unless the appeal concerns a matter of law of general importance.

Enforcement and Breach

Breaches of reporting restrictions imposed under Section 49 CYPA are summary offences (Section 49(9) CYPA). They are effectively offences of strict liability.

The reason for such a tough stance is that public identification of children and young people is irreversible and can cause both immediate and long term distress and harm. Therefore, it will almost always be in the public interest to prosecute those who have responsibility for publication of material that breaches Section 49.

Prosecutors should notify the Area Complex Casework Unit (CCU) of any cases involving breach of such orders. It is good practice to notify the Attorney General of such cases.

Further information, including details on issues such as the identification of the person(s) responsible for any such breach can be found in the legal guidance Contempt of Court and Reporting Restrictions.

Application to lift Restrictions

The youth court may make an order allowing reporting restrictions to be lifted if:

  1. It is appropriate to do so to avoid injustice to the child or young person under 18 (Section 49(5)(a) CYPA);
  2. It is necessary in order to apprehend a defendant who is unlawfully at large and has been charged with or has been convicted of a violent or sexual offence or one that is punishable with imprisonment for 14 years or more if committed by a person aged 21 or over;
    • A defendant is unlawfully at large if he or she is away from the place of custodial remand or has been released on bail but is liable to arrest with or without a warrant (Section 49(11) CYPA).
    • The application may only be made by the DPP after giving notice to the Court and to the defence (Section 49(5)(6) and (7) CYPA). The CPS should also comply with CPR Part 16.
    • The application should be in writing and should comply with Part 6 Crim PR. It should set out the charge faced by the defendant, whether the defendant has been convicted or sentenced, the length of time that the defendant has been unlawfully at large and the reasons why the CPS considers it necessary for the restriction to be lifted to apprehend the defendant. Where the defendant has not been convicted, care should be taken not to reveal details of the offence or the defendant's antecedent history that may prejudice a fair trial.
  3. It is in the public interest to dispense to any specified extent with the restrictions in relation to a child or young person convicted of an offence (Section 49(4A)). This power to dispense with anonymity must be exercised with very great care, caution and circumspection. Some young people, for example looked after children, may be particularly vulnerable if their identity is published.

The Court may make the order of its own motion but it must provide the parties to the proceedings with an opportunity to make representations and it must take into account any representations which are duly made. It is likely that any application to dispense with the restriction will be made by a representative of the media who should comply with Part 6 Crim PR by giving notice of the application to all the parties and providing an explanation as to why the reporting restriction should be varied or removed.

Prosecutors should consider the following points carefully and make appropriate enquiries before making an application that it is in the public interest to dispense with the automatic restriction:

  • The Youth Court Bench Book (2017) states, at Page 10, that the power is exercisable where a child or young person has been found guilty of persistent offending and it is in the public interest to dispense with the restriction.
  • The Court may direct that other persons should be notified of the application. It may be appropriate to obtain the views of parties such as the police or the Governor of the YOI where the youth is or is likely to be detained. There may be additional information that neither the CPS nor the defence can supply e.g. the impact of the loss of anonymity on rehabilitation or a risk to the safety of the youth and his family if he is identified.
  • Although the Court may make an order as soon as the youth is convicted or enters a plea, it may be in the interests of justice to delay making a decision until the sentencing hearing when the Court will have the benefit of the pre-sentence report and the views of any other interested parties. The risk of the defendant changing his plea and being acquitted of the offence, after details of his conviction have been published is also eliminated. Where the defendant is convicted after trial, it may be appropriate to wait for the appeal period to expire or, if an appeal is lodged, the outcome of the appeal before making the order.
  • The Court should consider the effect of identification on rehabilitation. The principal aim of the youth justice system is to prevent offending, including re-offending. Identification of a youth may be detrimental to his own rehabilitation and that of other young people related to him or detained with him.
  • Under the cases of McKerry v Teesdale and Wear Justices [2000] WL 546 and Damien Pearl v Kings Lynn Justices [2005] EWHC 3410 (Admin) the public interest in lifting the restriction was for public protection. Both defendants had been convicted of a driving offence that caused a serious risk of harm to the public and also had a history of offending and failure to comply with court orders. It was also held that the public interest may be served by partial lifting of the reporting restriction. It may be sufficient to publish the name of the defendant to satisfy the public interest but publication of a photograph, address or school should remain restricted to protect the welfare and privacy of the child or young person

"it would be wholly wrong for any court to dispense with a juvenile's prima facie right to anonymity as an additional punishment. It is also very difficult to see any place for 'naming and shaming'. The ... criterion that it is in the public interest to dispense with the reporting restriction must be satisfied. This will very rarely be the case and justices making an order under section 49(4A) must be clear in their minds why it is in the public interest to dispense with the restrictions" (McKerry v Teesdale).

Reporting restrictions in rape or other serious sexual offence cases

Young victims of rape and other serious sexual offences will have automatic anonymity subject to the provisions of the Sexual Offences (Amendment) Act 1992. Young witnesses to such offences do not receive this protection and so therefore it is at the discretion of the court to make an order under Section 45 YJCEA.

Victims of female genital mutilation

Section 71 of the Serious Crime Act 2015, which came into force on 3 May 2015, introduced a new automatic reporting restriction for the victims of female genital mutilation (FGM).

The reporting restriction applies from the moment that an allegation has been made that a FGM offence has been committed against a person and imposes a lifetime ban on identifying that person as being an alleged victim of FGM.

Discretionary Reporting Restrictions Section 45 Youth Justice and Criminal Evidence Act 1999

Introduction

The identity of a victim, witness or defendant under the age of 18 who is concerned in proceedings in a Magistrates Court or the Crown Court may be published unless the Court makes an order under Section 45 YJCEA restricting reporting of any matter relating to such a person in any publication if it is likely to identify them as being concerned in the proceedings whilst he is under 18; or in a sound or television broadcast (Section 39 CYPA and Section 57(4) Children and Young Persons Act 1963).

Section 45(8) YJCEA specifies the matters relating to the person aged under 18 as being:

  • His name
  • His address
  • The identity of any school or other educational establishment attended by him
  • The identity of any place of work
  • Any still or moving picture of him

Section 63 of the YJCEA defines publication as any speech, writing, relevant programme or other communication in whatever form which is addressed to the public at large or any section of the public. This wide definition therefore includes any posts on Social Media, including Facebook, Twitter etc.

Prosecutors should make an application to restrict reporting the identity or details that would lead to the identity of a victim and witness under the age of 18 under Section 45 YJCEA when the victim or witness has requested this restriction. If the views of the victim or witness have not been ascertained, Prosecutors should still seek such restrictions if these would appear to be in the best interests of the young victim or witness, having regard to the principles set out in this guidance.

Reporting restrictions in relation to deceased children

A Section 45 order cannot be made in relation to children who are deceased. This is because for an individual to be concerned in proceedings they must be alive. This has been highlighted by the House of Lords in Re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593. It is also expressed by the Judicial College in their 2016 report Reporting Restrictions in the Criminal Courts - Page 40.

However, the House of Lords have also made it clear in the above case that the Courts have an inherent jurisdiction to restrain publicity, which is derived by convention rights under the ECHR. Any pre-existing case-law related to Section 39 CYPA 1933 will also apply in relation to Section 45 YJCEA 1999. (R v H [2015] EWCA 1579).

There are a number of recent, unreported cases in which the Courts have refused to order a Section 45 anonymity order in respect of a child who is deceased. The first is R v Miah and Nazmin (unreported, Central Criminal Court, 2016) and the second is R v Shepherd and Cox (unreported, Maidstone Crown Court, 2016).

The Test

There is no reported case law relating to the application of Section 45 YJCEA but there is in relation to Section 39 CYPA and this may be cited as good authority in respect of Section 45 YJCEA

In R on the application of Y v Aylesbury Crown Court, Crown Prosecution Service, Newsquest Media Group Limited [2012] EWHC 1140 (Admin), the Administrative Court gave the following guidance to courts to decide whether a Section 39 restriction should be made/lifted:

  • The defendant will have to satisfy the court that there is a good reason to impose the restriction. In most cases the good reason upon which the defendant child or young person will rely is his or her welfare (Section 44 Children and Young Persons Act 1933);
  • The court should identify the factors which would favour restriction on publication and the factors which would favour no restriction;
  • The court should balance the interests of the public in the full reporting of criminal proceedings against the desirability of not causing harm to a child concerned in the proceedings. The court is required to have regard to the welfare of the child, and should give considerable weight to the age of the offender and to the potential damage to any young person of public identification as a criminal before having the burden or benefit of adulthood;
  • If having conducted the balancing exercise, the factors favouring a restriction on publication and the factors favouring publication are very evenly balanced, then a court should make an order restricting publication;
  • Any order made must comply with Article 10 ECHR - it must be necessary, proportionate and there must be a pressing social need for it. Age alone is not sufficient to justify imposing an order;
  • The court may also decide to permit the publication of some details but not all;
  • The court may review an order at any time and frequently are invited to do so where a defendant named in an order has been convicted at trial. The welfare of the child must be taken into account, but the weight to be given to it changes where there has been a conviction, particularly in a serious case. There is a legitimate public interest in knowing the outcome of proceedings in court and the potential deterrent effect in respect of the conduct of others in the disgrace accompanying the identification of those guilty of serious crimes;
  • The court should give reasons for its decision.

Enforcement and Breach

When the Court makes an order under Section 45/45A YCEA 1999 it should make clear the terms of the order. The Court should identify the child (or children) to whom the order relates. Prosecutors should prepare a draft order as part of an application for an order under Section 45/45A. A written copy of the order should be drawn up as soon as possible after the order has been made orally. A copy should be available in the court office for inspection by the press and the fact that an order has been made should be communicated to those who were not present when the order was made; for example by a short notice included in the court list when the case is subsequently listed.

Opposition of Reporting RestrictionsA reporting restriction in respect of a defendant will usually be sought by the defence and may be opposed by a press representative. A Section 45 YJCEA order is likely to be made at the outset of proceedings and it is for the Court to consider removal or variation post-conviction. When deciding whether to make such an order, the Court must have regard to the defendant's welfare.

The prosecutor should remind the Court of its powers and the principle leples to be applied. The CPS should not oppose an application for a Section 45 order where the restriction appears to be necessary for a fair trial or to protect the ECHR and UNRCC rights of the youth and these factors outweigh the open justice principle.

Where the only reason that the youth is not being tried in the youth court (and therefore covered by automatic reporting restrictions) is that he is jointly charged with an adult and it is in the interests of justice for them to be tried together, Prosecutors should seek/not oppose a reporting restriction before conviction.

There will sometimes be circumstances, for example where a youth has been convicted of a particularly serious crime, that the Prosecutor should make an application to the court to lift an order made under Section 45 or Section 49. Before making such an application, Prosecutors should consider the following principles and draw them to the attention of the Court in support of any application that is made.

These principles were identified by the Court of Appeal in R v Winchester CC ex p B [2000] 1 Cr. App. R. 11. They were further approved and restated in R (A) v St Albans Crown Court ex parte T [2002] EWHC 1129 and in R (on the application of Y) v Aylesbury Crown Court, CPS, Newsquest Media Group Limited [2012] EWHC 1140 (Admin):

  1. The Court will consider whether there are good reasons for naming the defendant.
  2. In reaching that decision, the Court will give considerable weight to the age of the offender and the potential damage to any young person of public identification as criminal before the offender has the benefit or burden or adulthood.
  3. By virtue of Section 44 Children and Young Persons Act 1933 the court must have regard to the welfare of the child or young person.
  4. The prospect of being named in Court with the accompanying disgrace is a powerful deterrent and naming of a defendant in the context of his punishment serving as a deterrent to others. These deterrents are proper objectives for the Court to seek.
  5. There is a strong public interest in open justice and in the public knowing as much as possible about what has happened in Court, including the identity of those who have committed crime.
  6. The weight to be attached to the different factors may shift at different stages of the proceedings and in particular after the defendant is found or pleads guilty and is sentenced. It may then be appropriate to place greater weight on the interest of the public in knowing the identity of those who have committed crimes, particularly serious and detestable crimes.
  7. The fact that an appeal has been made may be an appropriate consideration.

The following additional factors to take into account when deciding whether to lift a reporting restriction made under Section 39 CYPA 1933 were considered in respect of Jon Venables and Robert Thompson and in the ruling on the application to lift reporting notification on the defendants' identities: Sheffield Crown Court 22 Jan 2010. The defendants in both cases were under the age of 13 and were convicted of murder and of various grave crimes respectively.

 

"The public interest also demands a good opportunity of rehabilitation, including the opportunity to be brought up in a secure in a way so as to facilitate their rehabilitation." (Venables and Thompson and News Group Papers Ltd and A Newspapers Ltd and MGM Ltd. [2001] EWHC QB 32.)

"Removal of anonymity will result in other youths in a YOI or secure unit knowing what the youth had done, which would inevitably be disseminated to the wider public. This could lead to a youth being ostracised or harmed by others in the unit, in their location being disclosed to the media for payment, in the parents of other youths insisting that their children be removed from the units (putting pressure on the limited availability of such places which are known to be extremely expensive to provide), and in the units being subjected to anonymous threats."

"The safety of the family of the offenders and the cost of protection of the families and the youths, while serving their sentence and on release. If the identity of the youth is made known it may be that he will need a new identity at significant cost when he is released in order to ensure that he is not subject to reprisals."

Section 45A Youth Justice and Criminal Evidence Act 1999: Lifelong Immunity

Introduction and Test

An order made under Section 45 ceases to apply when the young person reaches the age of 18 but an order made under Section 45A imposes lifeline anonymity if the relevant conditions are met.

In all cases heard in the Magistrates' Court and the Crown Court, where there are victims and witnesses under the age of 18, the CPS should ask the police to inform the child or young person and their parent(s) or guardian(s) of the Courts power to restrict reporting and ascertain whether they would like the Court to make an order under Section 45A.

Where a Section 45A order is sought in respect of a victim or witness, the CPS should make the application to the Court as soon as is reasonably practicable and notify the defence of the application in accordance with Part 6 Crim PR. An order under Section 45A might also benefit young witnesses for the defence. The onus will be on the party seeking the order to show cause for restricting publicity.

Before making a Section 45A order, the Court must be satisfied that the quality of any evidence or the level of co-operation given by the person to any party to the proceedings in connection with that partys preparation of its case, is likely to be diminished by reason of fear or distress on the part of the person in connection with being identified by members of the public as a person concerned in the proceedings. (Section 45A(5)

In determining whether the above has been made out the Court must consider, under Section 45A(6):

  • The nature and alleged circumstances of the offence.
  • The age of the young person.
  • The social and cultural background and ethnic origins of the young person.
  • The domestic, educational and employment circumstances of the young person.
  • Any religious beliefs or political opinions of the young person.
  • Any behaviour towards the person on the part of a defendant or members of the defendant's family or a defendants associates,
  • Any other person who is likely to be an accused or a witness in the proceedings.
  • The welfare of the young person.
  • Whether such a reporting restriction would be in the public interest.
  • The impact on the public interest in having such a substantial restriction imposed.

The media or defence may ask for a Section 45A order to be later varied or lifted, In such cases, the CPS should ask the Court to require the applicant to comply with the CPR by serving the notice of the application. The Prosecutor should ask the Court not to lift the restriction until the victim or witness or any other person given notice has had a reasonable opportunity to make representations.

Anonymity for child defendants who are the victims of trafficking

Prosecutors should consider making applications of anonymity for children who commit offences as a result of being exploited by traffickers.

R v L; R. v N [2017] EWCA Crim 2129, unreported, 23 November 2017, CA. This case is the most recent in an increasingly long line of authorities considering the UK’s international obligations to victims of trafficking who are forced to commit crimes integral to their trafficked status. The obligations derive from the Council of European Convention on Action against Trafficking in Human Beings 2005, and from the EU Directive 2011/36 on Preventing and Combating Trafficking in Human Beings, and are now reflected in the Modern Slavery Act 2015

Criminal Behaviour Orders

The provisions relating to Criminal Behaviour Orders (CBOs) are in Part 2 of the Anti-social Behaviour, Crime and Policing Act 2014. The provision came into force on 20 October 2014.

The CBO is available on conviction for any criminal offence in any criminal court. The order is aimed at tackling the most serious and persistent offenders where their behaviour has brought them before a criminal court. The CBO replaces the Anti-social Behaviour Order (ASBO) on conviction (section 1C Crime and Disorder Act 1998).  See CPS legal guidance for more information on Criminal Behaviour Orders.

Making the public aware of the offender and the terms of the CBO can be an important part of the process in dealing with anti-social behaviour. It can provide reassurance to communities that action is being taken when they report anti-social behaviour. It will also provide the information local people need to identify and report breaches.

Where the offender is under the age of 18, in so far as the proceedings relate to the making of the CBO:

  • Section 49 CYPA 1933 (restrictions on reports of proceedings in which children and young persons are concerned) does not apply in respect of the offender;
  • Section 39 CYPA 1933 (power to prohibit publication of certain matters) does apply.

Where a youth is prosecuted for a breach of a CBO under section 30 of the Anti-social Behaviour, Crime and Policing Act 2014, there are no automatic reporting restrictions on the proceedings in respect of the breach (section 30(5)), although any other charges heard at the same time will still be subject to section 49 CYPA 1933. The court does, however, retain the power to make a section 39 order.

Courts must balance the interests of the child or young person subject to the order with the interests of the public, (see the ASBO case of R (A) v Leeds Magistrates’ Court [2004] EWHC 554 (Admin)). Prosecutors should have regard to the principles set out in section 39 CYPA 1933 when making representations in these cases.

The relevant considerations when considering imposing or removing reporting restrictions are set out in R (A) v St Albans Crown Court, ex parte T [2002] EWHC 1129 (Admin).  

Annex 1: Overview of Statutory Reporting Restrictions

Read the overview below or download it in table format as a MS Word file here.

Section 39 Children and Young Persons Act 1933

 

Type of court proceedings

  • Civil & family proceedings.
  • Proceedings in any court in respect of civil orders dealing with anti-social behaviour.

Whom it applies to

  • Victims, witnesses & defendants under the age of 18 when proceedings commence.

Does it apply to online content?

  • Yes

Automatic or by court order (discretion)?

  • Court order (discretion)

Can it be lifted?

  • Yes

Can it be varied?

  • Yes

Duration of the reporting restriction if not lifted

  • Until the age of 18 and also proceedings (including on appeal) have subsequently been completed.

Notes

  • No longer applies to criminal proceedings.
  • Scope of possible restriction has been expanded to include online content.

 

Section 49 Children and Young Persons Act 1933

 

Type of court proceedings

  • Youth court & proceedings on appeal from it.

Whom it applies to

  • Victims, witnesses & defendants under the age of 18 when proceedings commence.

Does it apply to online content?

  • Yes

Automatic or by court order (discretion)?

  • Automatic.

Can it be lifted?

  • Yes

Can it be varied?

  • Yes

Duration of the reporting restriction if not lifted

  • Until the age of 18 and also proceedings (including on appeal) have subsequently been completed.

Notes

  • Scope of possible restriction has been expanded to include online content.

 

Section 45 Youth Justice and Criminal Evidence Act 1999

 

Type of court proceedings

  • Criminal proceedings in any court other than the Youth Court.

Whom it applies to

  • Victims, witnesses & defendants under the age of 18 when proceedings commence.

Does it apply to online content?

  • Yes

Automatic or by court order (discretion)?

  • Court order (discretion)

Can it be lifted?

  • Yes

Can it be varied?

  • Yes

Duration of the reporting restriction if not lifted

  • Until the age of 18 and also proceedings (including on appeal) have subsequently been completed.

Notes

  • Replaces section 39 of the CYPA 1933 in respect of criminal proceedings other than in the Youth Court.

 

Section 45A Youth Justice and Criminal Evidence Act 1999

 

Type of court proceedings

  • Criminal proceedings in any court including the Youth Court.

Whom it applies to

  • Victims & witnesses under the age of 18 when proceedings commence.

Does it apply to online content?

  • Yes

Automatic or by court order (discretion)?

  • Court order (discretion)

Can it be lifted?

  • Yes

Can it be varied?

  • Yes

Duration of the reporting restriction if not lifted

  • Lifetime of the individual the subject of the order.

Notes

  • New provision for victims & witnesses under the age of 18; operates in addition to other reporting restrictions' powers.

 

Section 46 Youth Justice and Criminal Evidence Act 1999

 

Type of court proceedings

  • Criminal proceedings in any court.

Whom it applies to

  • Adult (minimum of 18years old) witnesses.

Does it apply to online content?

  • Yes

Automatic or by court order (discretion)?

  • Court order (discretion)

Can it be lifted?

  • Yes

Can it be varied?

  • Yes

Duration of the reporting restriction if not lifted

  • Lifetime.

 

Annex 2: European Convention of Human Rights

When considering issues around reporting restrictions prosecutors should be mindful of the Convention Rights that may be engaged, which are likely to be:

Article 2 Right to Life

Article 3 Prohibition on Torture, Inhuman or Degrading Treatment

In exceptional cases courts have the power to issue injunctions preventing reporting where publication would interfere with the duty to provide protection from a threat to a person’s life or personal safety. This applies to witnesses (Re officer L [2007] UKHL 36) and to defendants (Venables v News Group Newspapers Ltd. [2001] Fam. 430, Fam. D.)

Article 6 Right to a Fair Trial

Article 6 (1) states that a public hearing and public pronouncement of the judgment of the court are essential ingredients of a fair trial. However, the press and public may be excluded from all or part of the trial in the following circumstances:

  • In the interests of morals, public order or national security;
  • Where the interests of juveniles or the protection of the private lives of the parties so require; or
  • To the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. 

Article 8 Right to Respect for Private Life

Article 10 Right to Receive and Impart Information

There is often a conflict between the Article 8 right to respect for private life and the Article 10 right of the public to receive and impart information. In R v Croydon CC ex p Trinity Mirror, Times Newspapers Ltd, News Group Newspapers Ltd and Newsquest Ltd and A and B (minors) [2008] EWCA  Crim 50, Sir Igor Judge said that, “it is impossible to over emphasise the importance to be attached to the ability of the media to report criminal trials. The identity of those convicted and sentenced should not be concealed. An order restricting reporting of the identification of an adult defendant in order to protect the Article 8 rights of his children would be a substantial erosion of the principle of open justice to the overwhelming disadvantage of public confidence in the criminal justice system. Such an order cannot begin to be contemplated unless the circumstances are indeed properly to be described as exceptional.” Although this did not relate to a youth case, the principles it contains have a wider relevance to the current guidance.  

Annex 3: United Nations Convention on the Rights of the Child

The United Nations Convention on the Rights of the Child 1989 rights apply to all children below the age of 18 (Article 1) and the rights that are engaged include:

  • Article 3 states that "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.";
  • Article 12 states that a "child who is capable of forming his or her own views has the right to express those views freely in all matters affecting the chid, the views of the child being given due weight in accordance with the age and maturity of the child ... in particular be provided the opportunity to be heard in any judicial or administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, ...";
  • Article 16 states that "No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, or correspondence, nor to unlawful attacks on his or her honour and reputations.", and that "The child has the right to the protection of the law against such interference or attacks.";
  • Article 40 states that "Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.", and that "To this end, and having regard to the relevant provisions of international instruments, States Parties shall, in particular, ensure that: ... (b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees: ...   (vii) To have his or her privacy fully respected at all stages of the proceedings."

Annex 4: The United Nations Standard Minimum Rules for the Administration of Justice 1985 (the Beijing Rules)

The Beijing Rules should also be considered where the person under 18 is a defendant. The Rules, which were adopted by the United Nations General Assembly in 1985, are not binding in international law. However, States are invited to observe the Rules, including:

  • Rule 8 Protection of Privacy which states:

8.1 The juvenile’s right to privacy shall be respected at all stages in order to avoid harm being caused to her or him by undue publicity or by the process of labelling,

8.2 In principle, no information that may lead to the identification of a juvenile offender shall be published.

The commentary to the Beijing Rules states that Rule 8 stresses the importance of the protection of the juvenile's right to privacy. Young persons are particularly susceptible to stigmatization. Criminological research into labelling processes has provided evidence of the detrimental effects (of different kinds) resulting from the permanent identification of young persons as "delinquent" or "criminal".

  • Rule 21 Records

21.1 Records of juvenile offenders shall be kept strictly confidential and closed to third parties. Access to such records shall be limited to persons directly concerned with the disposition of the case at hand or other duly authorised persons.

The Code for Crown Prosecutors

The Code for Crown Prosecutors is a public document, issued by the Director of Public Prosecutions that sets out the general principles Crown Prosecutors should follow when they make decisions on cases.

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Prosecution guidance

This guidance assists our prosecutors when they are making decisions about cases. It is regularly updated to reflect changes in law and practice.

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