How to challenge a court reporting restriction: the essential guide for journalists

Courts frequently find themselves facing applications by defence or prosecution counsel for orders to restrict the media’s right to report proceedings.

It is always worth considering whether these orders would be necessary and reasonable – if not, they should be challenged.

National and regional newspapers have their own legal departments which handle such challenges and all Newspaper Society members have the right to ask the society’s Political, Editorial and Regulatory Affairs department for help. Some editors might also decide to get law firms to make the application.

But it is always worthwhile for a journalist to make their own application.

If you have time:

  • Put your challenge on paper.
  • Make sure that you submit copies for defence and prosecution counsel.
  • Use numbered paragraphs – it helps if you have to refer to any part of the document if you have to stand up to make your point.
  • Be as brief as you can – without losing supporting material.
  • Do not ignore uncomfortable facts – deal with them.
  • Cite authorities supporting your argument.
  • Be logical – do not submit a representation which wanders all over the place.

If you don’t have time:

  • Jot down the main points you wish to make – it helps.
  • Attract the judge’s attention – send the judge or clerk a note via the usher or, if the worst comes to the worst, raise your hand.
  • Draw the court’s attention to the booklets Reporting Restrictions in the Crown Court or Reporting Restrictions in the Magistrates’ Court.
  • Don’t be afraid to take a little time in making your points.
  • Be patient – if the court agrees to hear a representation, you will get the chance to speak. Pay attention to the argument in favour of the reporting restriction – look for the weak points.

The challenge itself

Make sure you know the basic requirements for the order being sought.

Example: A Section 11 ban on publication of defendant’s address which was given in public at the previous hearing – object on the grounds that Section 11 requires that the information must first have been withheld from the public.

Example: A Section 39 order to ban identification of man accused of paedophile offences to protect his family – object on the grounds that Section 39 does not allow a court to order anonymity for an adult.

Build your argument to meet the facts of the case and the request being made. Do not just submit some form of basic, all-purpose, representation.

Suggested approach:

  • List authorities suggesting courts listen to representations from press.
  • Give a brief statement of facts, and details of order sought.
  • Give a brief statement of objections.
  • Give details of objections, with supporting authorities.
  • Other considerations – information the court might not know, and might not have been told, and the non-legal commonsense material which weighs against an order.

For the long term:

  • Establish a good working relationship with the CPS, and with the judges and magistrates at your local court.
  • Use the correct forms of address, and spell people’s names correctly.
  • Keep your temper.
  • You will not win in every case, especially in a magistrates’ court.

The main reporting restrictions courts can impose

Contempt of Court Act 1981

  • Section 4 (2) – Allows postponement of publication of reports or specific information.
  • Section 11 – Allows a court to ban publication of specific information.

Youth Justice and Criminal Evidence Act 1999

  • Section 35 – Allows a court to exclude the public when hearing a vulnerable or intimidated witness when evidence is being given in a sexual offence case, and also when a person other than the accused might intimidate a witness. But at least one journalist must be allowed to remain in court to report the proceedings.
  • Section 46 – Allows a court to give anonymity to a vulnerable witness over the age of 18 during their lifetime. To grant such anonymity, the court must be satisfied that the quality of evidence given by the witness, or the level of cooperation given by the witness to any party to the proceedings is likely to be diminished by reason of the witness’s fear or distress in connection with being identified as a witness by members of the public.

The Children and Young Persons Act 1933

  • Section 39 – Allows a court to give total or partial anonymity to any juveniles involved in the proceedings in court.
  • These orders allow a court to order that no report of proceedings in any court shall ‘include any particulars calculated to lead to the identification, of any child or young person concerned in the proceedings, either as being the person by or against or in respect of whom the proceedings are taken, or as being a witness therein”.
  • Orders should not be made automatically simply because a person involved in a case is a juvenile: R v Lee ([1993]; R v Central Criminal Court ex parte W, B and C ([2001]: There must be a good reason for making an order. The age of the individual is not of itself a sufficient justification. Also: R v Central Criminal Court ex parte Simpkins (The Times, October 26, 1998); R v Central Criminal Court, ex parte Crook and Godwin (1995)
  • A court cannot use a Section 39 order to give anonymity to an adult defendant. R v Southwark Crown Court, ex parte Godwin ([1991]: This decision was followed in R (on the application of Gazette Media and Others) v Teesside Crown Court (The Times, August 8, 2005).
  • A court cannot make a section 39 order to prohibit the identification of a dead child. The guidelines Reporting Restrictions in the Magistrates Court state at 4.1 (1) (b): ‘Orders cannot be made in respect of dead children.’
  • The order must be made by the court dealing with the proceedings. R v Lee ([1993].
  • W
  • here a juvenile has already been identified R v Cardiff Crown Court ex parte M (a minor) ((1998); The Times, April 28 1998).
  • On protecting an adult defendant’s children R (on the application of Trinity Mirror Plc) v Croydon Crown Court ([2008] The Times, February 13, 2008.

The media’s right to challenge the imposition of restrictions

  • McKerry v Teesdale and Wear Valley Justices (The Times, February 29, 2000) – Lord Justice Bingham said that while reporters had no automatic right of audience it was the court’s experience that they could represent the public interest, could make valuable points, and could help the court avoid falling into error. The Court of Appeal specifically rejected the element of the appeal based on the justices’ decision to hear representations from the press.
  • Ex parte News Group Newspapers (The Times, May 21, 1999), and Ex parte Crook and Another (1994) – Both support the principle of allowing the press to make representations.
  • R v Clerkenwell Metropolitan Stipendiary Magistrates Ex Parte The Telegraph (1993) – It was said that the media was best placed to represent the public interest in publicity, which the court has to take into account when balancing the public interest in an open trial against the possibility of substantial risk of prejudice.
  • Consolidated Criminal Practice Direction: This says, at Part I, under the heading Restrictions on Reporting Proceedings, at I.3.2: ‘When considering whether to make such an order there is nothing which precludes the court from hearing a representative of the press. Indeed, it is likely that the court will wish to do so.’
  • Orders should only be made when they are absolutely necessary. R v Croydon Crown Court, ex P Trinity Mirror (2008). Sir Igor Judge said: ‘In our judgment it is impossible to over-emphasise the importance to be attached to the ability of the media to report criminal trials. ‘In simple terms, this represents the embodiment of the principle of open justice in a free country… From time to time occasions will arise where restrictions on this principle are considered appropriate, but they depend on express legislation, and, where the Court is vested with a discretion to exercise such powers, on the absolute necessity for doing so in the individual case.'(emphasis added).

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