The Court of Appeal has reserved its decision in a case in which the Press Association is arguing that a reporting restriction imposed at the end of a Crown Court trial should be quashed – and has asked the Attorney General to become involved.
The Press Association launched an appeal under section 159 of the Criminal Justice Act 1988 against an order made at the end of a rape trial giving anonymity to a defendant who was convicted and jailed for seventeen-and-a-half years.
The court made the order, which was stated to be under section 1 of the Sexual Offences (Amendment) Act 1992, after hearing from the Crown Prosecution Service (CPS) that the victim feared that naming the defendant and giving details about him in reports would identify her to family members and the wider public.
Press Association legal editor Mike Dodd argued at a hearing yesterday that the order should be quashed, telling the Court of Appeal – Lord Justice Gross, sitting with Mr Justice Griffith Williams and Mr Justice Sweeney – that the court had no power to make it.
PA, he said, wanted to raise three matters of concern:
- The court had made an order which it had no statutory power to make;
- The 1992 Sexual Offences (Amendment) Act – which gives lifelong anonymity to the victims of rape and all other sexual offences – clearly made those reporting a trial responsible for ensuring victims' anonymity, and reporting was a matter for editors, not judges;
- The issue of reporting restrictions generally – given the willingness of some crown courts to make orders which were unnecessary, or which went beyond their powers.
Issues of reporting restrictions were of "major importance" to the press, Dodd told the court.
The Crown Court, he told Lord Justice Gross, had no "inherent jurisdiction" to make an order of the kind made by the judge in Cambridge.
The court had no inherent common law power to restrict reporting of what was said in open court – the power to impose reporting restrictions had to come from statute, as the Privy Council had held in Independent Publishing Company Ltd v The Attorney General of Trinidad and Tobago and The Director of Public Prosecutions ((Privy Council Appeal No. 5 of 2003)  1 AC 190).
He also drew attention to the observations of Sir Igor Judge, President of the Queen's Bench Division, as he then was, in Re Trinity Mirror ( QB 770 CA), who had said that a Crown Court had no "general" power to grant injunctions restricting reporting.
Sir Igor – now Lord Judge, the Lord Chief Justice – had said: "There is no inherent jurisdiction to do so on the basis that it is seeking to achieve a desirable, or indeed a 'just and convenient' objective. Unless the proposed injunction is directly linked to the exercise of the Crown Court's jurisdiction and the exercise of its statutory functions, the appropriate jurisdiction is lacking. The order was not incidental to the defendant's trial, conviction and sentence."
These observations applied to this case: the trial was over, the man had been convicted and sentenced, Dodd argued.
Cases in which any publication of detail concerning a defendant would identify the complainant – making the publication an immediate criminal offence under section 5 of the 1992 Act – were extremely rare, he said.
One such case involved a defendant who was guilty of a campaign of rape against his daughters, in the course of which he had fathered a number of children – it was clear, and the press agreed, that the defendant had to be anonymous, in order to protect the anonymity of the victims.But that was a rare and exceptional case, Mr Dodd said, adding that generally, defendants in criminal cases should not be allowed anonymity.
Claire Matthews, for the CPS, said that it had not asked the judge to make an order. She conceded that there was no power to make an order under the 1992 Act – the statute imposed automatic anonymity which applied to complainants of sexual offences.
But she said the court must be able to give the media "guidance and direction" about reporting, so that the trial judge could express his or her view that reporting certain matters would identify the victim.
She also conceded that there was no power to make a reporting restriction order under the 1981 Contempt of Court Act, as there had been no restrictions during the trial itself.
After a brief retirement, Lord Justice Gross said the court was reserving judgment, and proposed to seek the assistance of the Attorney-General and ask him to instruct counsel to make written submissions on the question of the jurisdiction to make orders, and the inherent jurisdiction.
The point was of some general interest and the court wished to have the benefit of properly researched assistance from the Attorney-General.