The [court reporting] Times They Are A-Changin’
By Tony Jaffa
In the first major update since April 2015, the fourth edition of “Reporting Restrictions in the Criminal Courts” has been published.
The guidance, produced by the Judicial College after consultation with the News Media Association, the Society of Editors, the Media Lawyers Association, and the Judiciary, aims to distil and explain the relevant legal provisions and principles so that they can be understood clearly and applied properly in practice.
But in doing so, the Guidance introduces some very significant changes to the way Court reporters and News Editors will have to operate.
The new regime is wide ranging, from making changes in the language used – for example, where previously reference was made to “victims” of sexual offences, this has now been updated to “complainants”– to significant rewriting of the sections concerning postponement orders pursuant to s4(2) of the Contempt of Court Act 1981 and press access to court materials under the Criminal Procedure Rules 2020.
Perhaps one of the more significant updates from a working journalist’s perspective relates to the identification of juvenile offenders who have been convicted of offences in the Youth and Criminal Courts. Currently, a juvenile offender is either granted automatic anonymity in the Youth Court pursuant to s.49 of the Children and Young Persons Act 1933 or can be granted anonymity in the Criminal Court following an order under s.45 of the Youth Justice and Criminal Evidence Act 1999.
Previously where offenders were nearly 18, and the offences were of a serious nature, it was relatively common for anonymity to be challenged on the basis that it was in the public interest to identify them as adults and therefore as potential threats to society. The updated guidance, with an apparent focus on welfare and rehabilitation of juvenile offenders, now states that it would be wrong to dispense with a child’s right to anonymity as a form of additional punishment, so-called “naming and shaming.” It goes on to say that the welfare of the child must be given great weight and that rarely will it be the case that it is in the public interest to identify the child.
This is a huge shift in emphasis, which is unlikely to be welcomed by Court reporters and News Editors alike. It is easy to imagine all sorts of problems and inconsistencies, for example when a Defendant’s 18th birthday is only a matter of days or weeks after the Court hearing.
Conversely, the new emphasis which is placed on the governing principles of the “Venables Jurisdiction” i.e., the rare and exceptional power for the High Court to grant lifelong anonymity to an adult defendant, is likely to be regarded as a step in the right direction when it comes to open justice. Typically, such orders are used to protect the new identities of well-known offenders upon their release from prison. Examples of such individuals include Robert Thompson and Jon Venables, who were convicted of the murder of James Bulger when they themselves were children.
Given the serious interference with free speech that the exercise of such power represents, it will now only be justified when there is convincing evidence of a real and immediate risk of serious physical harm or death if the defendant’s identity were to be revealed.
Note the word “evidence.” Mere supposition and opinions are now longer good enough; applications for lifelong anonymity must be supported by hard evidence.
Moreover, the Guidance notes that there may be cases where it is necessary to protect the identity of the complainant where no automatic reporting restriction applies. For example, in cases of extortion, or revenge porn perhaps, the Guidance envisages that the proper administration of justice will generally call for the complainant to be granted anonymity to prevent the suffering of further harm.
In another new addition to the Guidance, the topic of pre-existing online material is covered. Here, the Guidance provides that though in principle there is a theoretical risk of prejudice arising out of previously published articles, this will rarely justify the imposition of a reporting restriction or injunction requiring the removal of this kind of material. Instead, reliance should be placed upon the jury abiding by the standard direction from the trial judge not to research the matters covered in the trial. Whilst this is a difficult matter to police, the fact that doing so represents a criminal offence under s.20A of the Juries Act 1974 ought to aid with levels of compliance.
The Guidance also provides that whilst in exceptional circumstances, the Crown Court can exercise its powers to require a publisher to disable or remove reader comments from an online court report where a serious risk of substantial prejudice is present, for the most part responsibility for the assessment of that risk level falls to the publisher. There is an expectation that where a risk is identified, the publisher will act to disable and remove potentially prejudicial comments to mitigate the risk.
Time will tell as to the effect this updated Guidance will have on Court reporting, although it is clear that the powers-that-be are generally looking to ensure that Court reporting moves with the times.
As Bob Dylan predicted nearly 60 years ago, The [court reporting] Times They Are A-Changin’, and like it or not, the updated Guidance is definitely an essential part of all court reporters’ toolkits.