Other Court Reporting Restrictions

Front 1

What does Section 41 of the Criminal Justice Act 1925 make illegal?

Back 1

- To take or try to take any photograph or film

- Make or try to make - with a view of publishing it - any portrait or sketch of any person in court, its building or within its precincts

- any person entering or leaving a court building or its precincts

- Publish such a photo, or film portrait or sketch.

Front 2

Where does Section 41 apply to?

Back 2

In Criminal and civil courts, and inquests.

Front 3

Who does any person refer to?

Back 3

Judges, magistrates, coroners, jurors, witnesses, defendants and any other party.

Front 4

What are some issues with section 41?

Back 4

It does not define 'precincts' which has caused practical difficulties. The term includes rooms, foyers or corridors within the courthouse property, but it is unclear to what extent it includes areas immediately outside, not part of the property. If unsure, check with the particular court.

Front 5

What are some practical examples of the difficulties?

Back 5

Journalists standing on the public pavement frequently photograph and film judges, lawyers, defendants and witnesses entering or leaving court buildings, for example, the Royal Courts of Justice in London. Where this practice has become customary, it is rare for a court to object, though it would seem to breach the section 41 ban on showing people 'entering and leaving'. Jurors should not normally be photograph, as this might be regarded as a contempt in common law.

Front 6

How much would you get fined if breaching section 41?

Back 6

Fines up to £1,000.

Front 7

What do sketch artists do to comply with section 41?

Back 7

They visit the court's public gallery or press bench, memorise the scene and characters but do the actual sketching elsewhere. A government consultation paper made no objection to sketching in a courthouse press room.

Front 8

What are the rules on jury visits to the scene of a crime or death?

Back 8

If a judge or coroner decide that a jury should visit an outside location such as a crime or accident scene to help jurors understand evidence, the visit should not be filmed, photographed or sketched without the court's permission. The court may allow this, as long as no juror can be identified through what is published.

Front 9

How could photography and filming classify as contempt of court?

Back 9

Despite the existence of the 1925 Act, a court may deem photography or filming in court or in its precincts, or even elsewhere, for example on the pavement outside, to be a contempt of court in common law.

A photographers conduct could be regarded as contempt if it amounted to 'molestation' - interference with the administration of justice. Case law suggests that running after a defendant for a short while in order to photograph them would not usually be seen as molestation. But stalking a defendant may deter them or other witnesses from giving evidence.

Front 10

Describe an example where photographers were warned about contempt of court.

Back 10

In 2009, Mr Justice Keith warned photographers to stop taking pictures of two young brothers as they arrived at Sheffield Crown court in cars under blankets, saying he would take action if he thought a contempt of court had taken place. The brothers had admitted inflicting, when aged 10 and 11, horrific violence on two boys in a village near Doncaster.

Front 11

Describe a case study where a photographer was jailed for breaching the 1925 Act.

Back 11

In 2004 a man was jailed for nine months for using a mobile phone to take pictures in Birmingham Crown court. The judge believed there was a 'sinister motive'.

Front 12

What did Parliament amend in section 41?

Back 12

That the Supreme Court can permit broadcasting of its proceedings which, being concerned with points of law, are argued from documentary evidence, and are rarely likely to involve witnesses in person. Broadcasters can screen footage of judges giving judgment in the Court of Appeal and the Government would begin consultations on how such a scheme could also cover judges' 'summary remarks' in Crown court trials. But victims, witnesses, offenders and jurors will not be filmed.

Front 13

What is the position on audio equipment being used in court?

Back 13

It is illegal to use any audio-recording device in a court, including a tape recorder, or a mobile phone's recording facility, without the court's permission.

Front 14

Why are audio equipments banned from being used in court?

Back 14

Prevent witness testimony being broadcast, which for some witnesses would increase the strain of giving evidence.

to stop secret recordings being made in the public gallery by, for example, a defendant's criminal associates, who could use it to intimidate or humiliate a prosecution witness or to help dishonest witnesses collude in false corroboration. For example, one witness could listen to a recording of the other's evidence and repeat the same information in their own evidence but claim to have recalled it independently.

Front 15

What does Section 9 of the Contempt of Court Act 1981 make a contempt to?

Back 15

- Use a tape-recorder or any other audio-recording device in court, or to take one into a court for use, unless the court gives permission.

- Broadcast any audio recording of court proceedings or play any of it in the hearing of any section of the public

- Make any authorised use of a recording, if recording has been allowed.

Front 16

What discretion do courts give to journalists when recording a court case and what is the condition?

Back 16

- A court can allow audio-recordings for note-taking purposes, including by a journalist.

- Part 1.2 of the Consolidated Criminal Practice Direction says that when considering a request for permission to record, a criminal court should consider 'the existence of any reasonable need on part of the applicant, whether litigant or a person connected with the press or broadcasting' and whether use of a recorder would 'disturb the proceedings or distract or worry witnesses or other participants.'

Front 17

What do courts say about publishing audio from a court case?

Back 17

Rule 16.9 of the Criminal Procedure Rules states that a person must apply as soon as reasonably practical, explaining why permission should be given and notify each party in the case, and anyone else the court specifies of the application. The court can however impose limitations, for example, it could ban their use during witness testimony.

Front 18

What is the penalty for contempt arising from breach of section 9?

Back 18

A jail term of up to two years and/or an unlimited fine.

Front 19

What should reporters be wary of when carrying mobile phones in a courtroom?

Back 19

Reporters should not make or receive calls on mobile phones during court hearings - these acts could be punished as contempt because they are disrespectful and potentially disruptive and damaging to the administration of justice.

Front 20

What is the punishment for carrying a mobile phone and answering it in the courtroom?

Back 20

By fine or jailing the journalist, particularly if the witness is already finding it difficult to testify. The normal rule is that mobile phones must be turned off in court. The rule derives from the inherent jurisdiction that courts have to govern their own proceedings.

Front 21

In what circumstances could a journalist use their mobile phone or any other piece of equipment?

Back 21

In December 2011, the Lord Chief Justice issued guidance that journalists in courts could use text-based communications to provide live running coverage of a case, including by use of the Twitter micro-blogging system. They can use phones, laptops or similar equipment, but they must be silent and not disruptive.

Front 22

Describe case studies which allowed and disallowed tweeting in a court case.

Back 22

In 2011, a district judge allowed journalists to tweet from an extradition hearing at the City of Westminster magistrates court. Also, the Court of Appeal agreed tweeting was generally to be approved for its cases, but refused to allow Twitter to be used in a case in which a claimant sought an injunction on privacy grounds, because of the risk that private information might be published. Later that year West Midlands press officers tweeted summaries of every case heard during a morning in Birmingham magistrates court, with its permission, and a judge at Bristol Crown court allowed reporters to tweet from a bail hearing in a murder case. However, a judge at Newcastle Crown court refused to allow journalists to tweet from a murder trial.

Front 23

What is the position on jury deliberations and privacy?

Back 23

It is a contempt of court to breach the confidentiality of a jury's deliberations, whether the jury is in a Crown court, an inquest or a civil case. Juries arrive at their verdicts in secret discussions, in rooms guarded against intrusion secrecy helps jurors to be frank in discussions, without fear of a public backlash for an unpopular decision or retribution from a vengeful defendant they convict.

Front 24

What does section 8 of the Contempt of Court Act 1981 say it is a contempt of the court to obtain, solicit or disclose any detail of?

Back 24

- Statements made,

- Opinions expressed

- Arguments advanced

- Votes cast

By members of a jury during its deliberations.

- The prohibition applies even if what is published does not identify any individual juror or even a particular trial.

Front 25

What is the penalty for breaching section 8 of the contempt of court act?

Back 25

- a jail term of up to two years and/or an unlimited fine.

Front 26

When is it safe to publish a juror's general impressions of the experience of jury service?

Back 26

After the trial, provided the individual is willing to volunteer these and is not asked about statements made, opinions expressed, arguments advanced or votes cast in the course of the deliberations, and does not refer to such matters in what is published.

Front 27

What can a juror be interviewed about?

Back 27

On whether they felt in general that evidence was clearly presented.

Front 28

What might happen in a controversial conviction and a journalist wants to speak with a juror?

Back 28

Journalistic investigations of alleged miscarriages of justice such as controversial murder conviction sometimes prompt jurors from the trial to speak up months or years later. Some have contacted journalists to say that, in the light of new evidence which has emerged they are no longer certain of the accused guilt. The safest course is to seek legal advice before conducting or publishing such an interview.

Front 29

Describe a case study where section 8 was breached.

Back 29

In 2009, the High Court fined The Times £15,000 and ordered it to pay £27,426 costs for breaching section 8. The newspaper had published an article about the 10-2 majority verdict by a Crown court jury which convicted a childminder of a child's manslaughter. It quoted but did not name the jury foreman, who had approached the newspaper, as expressing doubt about the case's medical evidence. He also said that, early in its deliberations, the jury voted 10-2 in an initial indication of its consensus. He said the majority of jurors - because of what he called 'common sense' rather than 'logical thinking' - held to their own view that the defendant was guilty. The Times denied contempt. But the High Court ruled that The Times had, by using these quotes, breached section 8 by disclosure of 'votes cast', 'opinions expressed' and 'statements made' during the jury's deliberations, even though jurors' identities were not disclosed and the foreman's descriptions of the jury's deliberations were brief and possibly inaccurate. Mike Seckerson, the jury foreman, was fined £5,000 for his part in the breach.

Front 30

What is the contempt risk in identifying or approaching jurors?

Back 30

There is a risk of a media organisation being accused of common law contempt if it identifies a juror against their wishes, even after a trial. The disclosure could be held to interfere with the judicial process by putting the juror at risk of harm from anyone unhappy with a verdict. A reporter deemed to have harassed a juror for an interview might be held to be in contempt, because harassment could discourage people from serving as jurors.

Front 31

What would happen if a juror was late in attendance or drunk?

Back 31

They could be named in court and punished by the judge. In the absence of any court order to the contrary, the media can safely identify the juror, if named, and say how the court dealt with them.

Front 32

What is Section 11 of the Contempt of Court Act 1981?

Back 32

Banning the media from reporting a person's name.

- A court can ban the publication or a name or other information in connection with the proceedings as long as it has first allowed that information to be withheld from the public.

Front 33

What would a typical use of Section 11 be?

Back 33

To protect the identity of victims/alleged victims of blackmail. Someone who is the target of blackmail involving a threat to reveal an embarrassing secret will be less likely to report the threat to police, and then to be a witness, if it is likely that their identity will be given in open court and reported by the media when the secret emerges in evidence. In blackmail trials, the alleged victim is usually referred to in open court simply by a letter of the alphabet, for example, Ms X. This also protects the administration of justice as a continuing process, because identifying any alleged victim of blackmail publicly in court reporting makes it less likely that other victims of blackmail will report it to the police.

- To protect commercially sensitive information or secret processes. For example, a company sues another for damages over breach of confidence about valuable research data. The court may hear evidence about the data in private, to preserve its confidentiality - if it does not stay confidential, the case would be pointless. A section 11 order could be made to ban reports of the case publishing details of the data.

- To protect national security or state secrets

- To protect a person from the risk of attack

Front 34

What is a two-stage process in relation to section 11?

Back 34

A section 11 order is the second step in a two-stage process. The court first has to rule that a name or other information should not be given in proceedings held in public. Only then can it impose a section 11 order. If the name or information then slips out by mistake in a public session - for example, in what a witness or lawyer says - or if the media have discovered it by other means, it is illegal to publish it in any context which connects it to the case.

Front 35

How long does a section 11 order remain in force?

Back 35

Indefinitely, unless a court revokes it.

Front 36

What do journalists need to guard against when section 11 is in force?

Back 36

Jigsaw identification. Breaching section 11 is an offence of contempt of court and punishable by a jail term of up to two years and an unlimited fine. But section 11 only bans the reporting of the name or matter 'in connection with the proceedings'.

Front 37

What does Section 12 of the Administration of Justice Act 1960 ban reports of in relation to private hearings?

Back 37

- Relate to the exercise of inherent jurisdiction of the High Court with respect to children

- fall under the Children Act 1989 or the Adoption and Children Act 2002 or which otherwise relate wholly or mainly to the maintenance or upbringing of a child.

- fall under the Mental Capacity Act 2005, or under any provision of the Mental Health Act 1983 authorising an application or reference to be made to the First-tier Tribunal, the Mental Health Review Tribunal for Wales or to a county court

- Involve national security

- Involve a secret process, discovery or invention

- Are those, of any kind, where the court expressly bans the publication of all or specified information relating to the private hearing.

Front 38

What details can be published from a private hearing?

Back 38

- Section 12 makes clear that publishing the text, or a summary, of any order made in such a hearing is not contempt unless the court has specifically prohibited its publication.

- Mr Justice Munby stated that section 12 did not itself ban publishing a reference to 'the nature of the dispute being heard in the private hearing. He added that what could be published without breaching section 12 included:

- The names, addresses or photographs of parties and witnesses involved in the private proceedings

- The date, time or place of hearings in the case

- 'Anything which has been seen or heard by a person conducting himself lawfully in the public corridor or other public precincts outside the court'.

Front 39

What are private hearings not protected by?

Back 39

Any statutory privilege in relation to libel law, and is not protected by section 4 of the Contempt of Court Act 1981 if it creates a substantial risk of serious prejudice to an 'active case'.

Front 40

What should be journalists be careful of publishing material from court documents in relation to civil cases?

Back 40

Civil cases are conducted mainly by reference to documents. In a civil case, it is safe to quote from any document the journalist obtains with the court's permission or from any case document they is able to inspect by the court's permission, or from any case document they are able to inspect by right. If the civil case is heard in public, it will be safe to quote from any skeleton argument provided to a journalist by lawyers involved, unless the court forbids this. Any reporting restriction, for example protecting the identity of a child or alleged victim of a sexual offence, must be observed in what is reported from such documents.

Front 41

What should journalists consider about publishing material from court documents in relation to criminal cases?

Back 41

The media has no automatic right to inspect case documents. Journalists should beware the risk of contempt incurred by publishing material from a document which they have obtained from one side or the other in criminal or civil proceedings, without the court's permission and which one party was compelled or had a duty to produce as part of the 'disclosure' process and which has not been read out in open court. The pre-trial exchange of evidence and information. Contempt law applies because of the danger that parties who feared that material they provided to the other side might be published, even though it was not used in court, would refuse to cooperate fully with the disclosure process.

Front 42

What does Section 46 of the Youth Justice and Criminal Evidence Act 1999 say about adult witnesses?

Back 42

They have life long anonymity in reports of the case if the court is satisfied that:

- The quality of the witness's evidence, or their level of cooperation in preparations for the case, is likely to be diminished by fear or distress in connection with being identified by members of the public as a witness in that case

- Granting anonymity is likely to improve the quality of the witness's evidence or the level of their cooperation

Front 43

What is the main purpose for lifelong anonymity for witnesses?

Back 43

To provide better protection for witnesses who fear the fact that they have given evidence, or are due to testify, will provoke hostility from criminal elements in their communities.

Front 44

What is a reporting direction?

Back 44

Section 46 says a party in the proceedings in a criminal court - including the defence, though it is usually the prosecution - can ask the court to make the anonymity order, called a 'reporting direction' to cover a witness aged 18 or over.

Front 45

What is the scope of section 46?

Back 45

- Witness's name and address

- Identity of any educational establishment they attend

- The identity of any place where they work

- Any still or moving picture of them.

Front 46

What can't section 46 do in relation to anonymity?

Back 46

Give the defendant anonymity.

Front 47

What are the factors a court considers when deciding on section 46 anonymity?

Back 47

- Witness's view on anonymity

- The nature and circumstances of the alleged offences being tried

- The witness's age

- Social, cultural and ethnic background of the witness

- Their domestic and employment circumstances

- Religious beliefs or political opinions

- Any behaviour towards the witness on the part of the defendant, or the defendant's family or associates, or anyone else likely to be a defendant or witness in the proceedings

- Whether it would be in the interest in justice

- Whether it would be in the public interest in avoiding imposing a substantial and unreasonable restriction on reporting on the proceedings

Front 48

What are the defences for breaching section 46?

Back 48

- They were not aware, and neither suspected nor had reason to suspect that the publication included the matter or report in question

- The witness concerned gave written consent for the matter to be published (unless interfered with the peace or comfort of the witness to get that consent).

Front 49

What are some other anonymity orders?

Back 49

- The High Court has the power to ban publication of the identities of people concerned in its proceedings and uses it to give anonymity to children involved in family law cases.

- The court also usually gives anonymity to mentally incapacitated adults when protecting their interests in civil cases.

Front 50

What happens if a media organisation breaches the High Court anonymity orders?

Back 50

A media organisation who breaches these orders breaches contempt of court. The jurisdiction comes from Article 8 of the European Convention of Human Rights concerning privacy. Civil Procedure rules however state that, although county courts and High Courts can give anonymity to witnesses, anonymity orders should not be made simply to avoid embarrassment.

Front 51

Name examples where the High Court banned media organisations from publishing identities of people who became associated with horrific crimes.

Back 51

Mary Bell - In 1968, when she was 11, was convicted of the manslaughter of two young boys, and was sentenced to detention for life. When released in 1980, the Home Office gave her a new identity to help her rehabilitation.

Venables and Thompson - In 2001, granted anonymity to the boys after being convicted of murdering two-year-old James Bulger in Merseyside when they were 11 in 1993.

Maxine Carr - Former girlfriend of Ian Huntley, who in 2003 was convicted of murdering two girls in Soham. Carr was convicted of conspiring to pervert the course of justice, having given Huntley a false alibi. She was acquitted of knowing, when she ave it, that he had murdered the girls.

Kenneth Callaghan - In 2009, the High Court in Belfast banned all the media from publishing any photograph which would identify Kenneth, then 39, and any information identifying his address, place of work, or any location where he stays or which he frequents. He had become eligible for parole after serving 21 years for raping and murdering a woman. The judge also ordered that no photo should be published which identified any serving prisoner being assessed for release at a unit run by the Northern Ireland Office without giving the NIO 48 hours' notice of the intention to publish.

Front 52

What does Section 1 of the Judicial Proceedings Act 1926 prohibit?

Back 52

The publication in any court report of any 'indecent matter or indecent medical, surgical or physiological details ... the publication of which is calculated to injure public morals.' It is unlikely however that mainstream media organisations would be prosecuted today under this law.

Front 53

What does Section 4(2) of the Contempt of Court Act 1981 allow?

Back 53

A court has the power to order the postponement of publication of reports of a court case, or any part of a case, where this appears necessary to avoid a substantial risk of prejudice to the administration of justice in that case, or any other case which is pending or imminent.

Front 54

What special measures can courts make towards vulnerable or intimidated witnesses in relation to media?

Back 54

Ban the media from reporting that a court made such an arrangement, and why, because in some cases a jury might be influenced in its verdict if it knew why such a verdict was taken - for example, knowing a witness was allegedly intimidated by people suspected of being the defendant's associates might prejudice jurors against the defendant.

Front 55

What special measures can courts make towards vulnerable or intimidated witnesses?

Back 55

Section 19 of the Youth Justice and Criminal Evidence Act 1999 gives courts the option to:

- Let witnesses give evidence behind a screen so they cannot be seen by the defendant.

- Allowing a witness to give evidence by live video link in a video recording

- Exclude the public and all but one reporter while a witness testifies

- Have lawyers and the judge remove wigs and gowns to make the court less strange to a child witness.

Front 56

How does the court define 'vulnerable'?

Back 56

- Any witness under 18, or one with a mental disorder or physical disability.

Front 57

How does the court define 'intimidated'?

Back 57

An alleged victim of a sex offence a witness in which the alleged crime is said to involve a gun or knife, and a witness the quality of whose evidence is, in the court's view, likely to be diminished because of fear or distress connected with testifying.

Front 58

Are special measures automatic?

Back 58

No, so a witness aged under 18 or the alleged victim of a sexual offence will not necessarily be thought to need a special measure.

Front 59

What is a section 36 order of the Youth Justice and Criminal Evidence Act 1999?

Back 59

Banning cross-examination of witnesses by defendants. Courts can arrange for a lawyer to conduct the cross-examination if the defendant fails to appoint one.

Front 60

What is section 47 of the Youth Justice and Criminal Evidence Act 1999?

Back 60

It contains automatic reporting restrictions which temporarily ban the media from publishing the fact that a section 19 (special measures) order or section 36 order has been made, varied or discharged; or anything from the discussion or argument in court about such orders. The restrictions apply to proceedings in magistrates courts as well as to jury trials.

Front 61

What is the purpose of a section 47 order?

Back 61

To stop jurors being prejudiced against the defendant or a witness by learning, before they reach all verdicts in the case, why the court considered making or made the order.

Front 62

When would it be safe to report on something which doesn't infringe the section 47 order?

Back 62

Anything the jury can see anyway - for example, that a witness is giving evidence by video and anything the judge says to the jury to explain the effect of a section 19 or a section 36 order. For example, why a lawyer steps in to act for the defendant who is otherwise representing themselves.

Front 63

What will reporters need to be careful of mentioning when trying to manoeuvre past section 47 restrictions?

Back 63

It would, for example, be illegal to publish the fact, beyond any explanation the judge gives to the jury, that most reporters had been ordered to leave the courtroom.

Front 64

When would section 47 cease to have an affect?

Back 64

When the relevant case, against all defendants involved, is determined by acquittal, conviction or otherwise, or is abandoned, or if the court lifts the restrictions during the trial itself.

Front 65

What is a defence for breaching section 47?

Back 65

To prove that they were not aware and neither suspected nor had reason to suspect that such matter was included in what was published.

Front 66

When are decisions on special measures and cross-examination issues addressed?

Back 66

In pre-trial hearings, or when a jury is kept out of the courtroom, so other statute or contempt law will probably restrict contemporaneous reporting anyway.

Front 67

What can a court postpone as part of section 58 of the Criminal Procedure and Investigations Act 1996?

Back 67

A media report of a derogatory allegation made in a 'speech in mitigation' if it feels that someone's reputation may have been unfairly besmirched.

Front 68

What is an extradition hearing and do automatic reporting restrictions affect it?

Back 68

Media coverage of hearings in the UK on whether a person should be extradited to another country are not affected by any automatic reporting restriction. These hearings usually take place in Westminster Magistrates' Court.

Front 69

What are the major points of the 'other restrictions' section?

Back 69

- It is illegal to take photographs of, film or sketch people in a court of its precincts

- It is also illegal to make an audio recording of a court case without permission

- journalists can tweet, email or text from the courtroom to report cases, unless the court forbids this

- it is illegal to seek to discover, or to publish, what a jury discussed in deliberating on a verdict, or how an individual juror voted in the verdict

- It may also be ruled to be a contempt offence if a media organisation publishes material identifying a juror

- It is contempt of court to publish material heard by a court in private, in certain categories of case.

- An order made under section 11 of the Contempt of Court Act 1981 prohibits publication of a name or information withheld from the public proceedings of the court - for example, the name of a blackmail victim.

- Section 46 of the Youth Justice and Criminal Evidence Act 1999 allows a court to give an adult witness in a criminal case lifelong anonymity in media reports of it

- In any exceptional cases, the High Court has given convicted offenders indefinite anonymity, so the media cannot reveal their whereabouts after they are released.