Section 45 and the defendant’s use of social media
As we all know, s.45 of the Youth Justice and Criminal Evidence Act 1999 (“the Act”) gives a court the power to impose a reporting restriction in relation to anyone concerned in criminal proceedings if they are under the age of 18.
Anyone “concerned” in proceedings means a defendant or a witness (which would include a victim). A s.45 order is discretionary and lapses upon the juvenile concerned turning 18.
Using a s.45 order the court can direct that no matter relating to the person concerned can be included in any publication if it is “likely to lead members of the public to identify him as a person concerned in the proceedings”.
The Act goes on to state that the following cannot be published if it is likely to have the result of identifying the person concerned: name, address, name of school or other education establishment he/she attends, his/her place of work, or any still or moving picture of him/her. Obviously that list is not exhaustive, and every fact included must be evaluated against the likelihood of it leading to the identification of the person concerned, whilst being mindful of the risk of jigsaw identification.
S.45A of the Act gives the court the power to grant lifelong anonymity to witnesses or victims in criminal proceedings, but not defendants, and the same rules relating to identification apply.
There’s no doubt that a s.45 order being in place can make it very difficult for court reporters to report on criminal proceedings, and it is common for journalists to make representations to a Judge as to why a s.45 order (normally when it is made in respect of the defendant) should be lifted or relaxed.
The arguments which are used frequently centre around open justice, the public interest in identifying the defendant, or other factors like the seriousness of the crime or the fact that the defendant is nearly 18.
In a case reported recently a news agency journalist was successful in overturning a s.45 order on the basis of the defendant’s own social media activity.
Whilst awaiting sentencing for slashing a man’s throat with a knife at a pub, the defendant posted on social media that he was in prison and gave out his prison number in case anyone wanted to contact him.
The reporter made representations to the Judge that the defendant had himself eroded the benefit of the reporting restriction, whilst it being in place had created substantial difficulty in reporting the case.
The Judge lifted the restriction as she sentenced the defendant to 4 years in a young offenders institute. In lifting the s.45 order the Judge recognised that such an order went against the principles of open justice and the decision on whether it remained in place required a balancing exercise to be carried out.
Given the serious nature of the offence for which the defendant had been sentenced, his previous criminal record, the serious consequences of knife crime, and the fact that the defendant had identified himself as being in custody on social media, the Judge ruled that the balance had now shifted in favour of unrestricted reporting of the case.
Given the prevalence of social media and the access many inmates have to it, this is a persuasive additional angle to consider when challenging reporting restrictions.