Media Law

Week 2

Further Reading

In this weeks blog, I will be concentrating on the legislative and judicial measures that the English legal system have created to ensure that our courts and crime reporting are representative of the crucial balance set out in the European Convention on Human Rights, between the right of freedom of expression (Art 10) and the right of privacy (Art 8).

Statute

Contempt of Court Act 1981
Contempt of court is a court order which, in the context of a court trial or hearing, declares a person or organization to have disobeyed or been disrespectful of the court's authority. A finding of contempt of court may result from a failure to obey a lawful order of a court, showing disrespect for the judge, disruption of the proceedings through poor behaviour, or publication of material deemed likely to jeopardize a fair trial. A judge may impose sanctions such as a fine or imprison someone found guilty of contempt of court.
s.4(2) - to temporarily prohibit the media from reporting part of the preliminary hearing e.g. a reference to particular evidence.

Serious Organised Crime and Police Act 2005
Under sections 86 - 89, it is an offence, punishable by up to two years in prison, to disclose, at any time, the new identities such as the new names or addresses of informants given such new lives as part of police protection under the Act, or to disclose other arrangements in such protection.

Coroners and Justice Bill 2009
It is now proposed that a magistrate if requested can make without holding a court hearing an 'investigation anonymity order' in respect of someone assisting or willing to assist the police or the Serious Organised Crime Agency during investigations into suspected murder or manslaughter caused either by a gun or knife and if the person who committed the crime was between the ages of 11 - 30.
It was also proposed that magistrates should no longer be empowered to hear a bail application by a defendant charged with murder , and that instead he/she should make the application to a Crown court.

Youth Justice and Criminal Evidence Act 1999
Section 44 contains provision to prohibit media reports from identifying, after police begin to investigate an alleged crime, anyone under 18 who allegedly is either the crime's victim, or a witness to it or its perpetrator, this part of the Act concerning such juveniles has not become law, and in 2009 the Government apparently had no plans to put this section into effect.
Schedule 2 creates clarity in the concept that anonymity for juveniles involved in court proceedings ceases to have effect as soon as they reach the age of 18.

Bail Act 1976
As a general rule a defendant must be granted bail unless one or more of the following circumstances apply:
1. the court is satisfied there are substantial grounds for believing that the bail is granted.
2. he/she will abscond , or
3. commit another offence, or
4. obstruct the course of justice (e.g. by disposing of evidence or interfering with witnesses);
5. the court decides he/she should be sent to prison in custody for his/her own protection, e.g. if the crime alleged has so angered the local community that there is risk of mob violence to him/her;
6.he/she is alleged to have committed an indictable-only offence or an either-way offence at a time when he/she was on bail granted in an earlier case;
7. he/she is already in prison, serving a prison sentence;
8.there is not yet sufficient information available for the court to make a decision bail.

Magistrates' Court Act 1980
Restrictions, in section 8 automatically apply to media reports of preliminary hearings at magistrates courts of indictable-only and either-way cases.
The scope of section 8 restrictions only allow the following details to be reported;
1. the name of the court
2. the names, addresses, and occupations of the parties, including the defendants, and of witnesses, and the ages of the defendants and witnesses;
3. the charge or a summary of it/them;
4. the names of any legal representatives engaged in the proceedings, e.g. solicitors or barristers acting for the defence or prosecution;
5. if proceedings are adjourned, the date and place to which they are adjourned;
6. the arrangements as to bail
7. whether legal aid was granted
Under s.8(c), as inserted by the Courts Act 2003, automatic reporting restrictions severely limit what can be immediately published from these pre-trial hearings in summary proceedings.

Proceeds of Crime Act 2002
S.70 -committing the case of a convicted defendant to the Crown court for a hearing to decide whether there should be a confiscation order to seize property obtained as a result of criminal conduct. No automatic reporting restrictions apply to such committal hearings, as the defendant has already been convicted.

Criminal Procedure and Investigation Act 1996The term 'pre-trial hearing' is said specifically here for any hearing that occurs at the Crown court before a guilty plea is accepted or in cases which remain contested - of all hearings which occur before a jury is sworn in or before the beginning of any preparatory hearing in the case.
Publications are prohibited, before the conclusion of all Crown court proceedings in the case, of what is said in hearings in;
1. an application for any ruling on the admissibility of evidence or any other question of law, including any such ruling made by the judge.
2. an application for such a ruling to be varied or discharged, including any such order made by the judge.
When a crown court convicts a person of interference with or intimidation of a juror, witness, or potential witness.

Crime and Disorder Act 1998, Criminal Justice Acts of 1987 and 1991 and the Criminal Procedure and Investigations Act 1996
These apply to media reports of hearings for applications for charges to be dismissed and of 'preparatory hearings' If this occurs, journalists are restricted to report only on the seven pieces of information as listed above.

Criminal Justice Act 2003
The prosecution may appeal to the Court of Appeal against the ruling made by the judge on reporting restrictions. Under this act, automatic restrictions are required to prevent prejudice to the trial, prohibit reporting.
If 'new and compelling evidence' emerges, the prosecution, if so authorised by the Director of Public Prosecutions (DPP) can apply to the Court of Appeal for it to quash that acquittal and to order that a Crown court retrial takes place. The Court of Appeal can make an order imposing reporting restrictions, so making it an offence to publish any matter which would create a substantial risk of prejudice to any such retrial.

Also, the 2005 National Protocol introduced by the Crown Prosecution Service (CPS)
Material relied upon by the prosecution in a trial and which should normally be released tot the media includes;
1. maps and photographs, including custody photographs of defendants, and other diagrams produced in court;
2. videos showing scenes of crime;
3. videos of property seized, e.g. weapons, drug hauls, or stolen goods;
4. sections of transcripts of interviews that have been read to the court;
5. videos or photographs showing reconstructions of the crime;
6. CCTV footage of the defendant, subject to copyright issues.
It also says that material might be released following consideration by the CPS, in consultation with the police, victims, witnesses, and other people directly affected by the case, such as family members include:
1. CCTV footage showing the defendant and victim, or the victim alone, which has been viewed by the jury and public in court, subject to copyright;
2. video and audio tapes of police interviews with defendants, victims and witnesses;
3. victim and witness statements
Children and Young Persons Act 1933
Section 49 states that reports of youth court proceedings must not reveal:
1. the name,
2. or address,
3. or school
Any person aged under 18 who is 'concerned in the proceedings', either as a defendant or witness. Nor must they include:
1. any particulars likely to lead to his/her identification.
2. or any pictures (including in any TV programme) of, or including any such juvenile.
Also, applies to a juvenile 'in respect of whom the proceedings are taken'. So the s.49 anonymity also applies, in media reports of a youth court case, to a juvenile who is the victim/alleged victim in the case, as stated in the charge, even if such a person is not a witnesses, e.g. because he/she is a baby or toddler, too young to give evidence.
The test must always be whether a member of the public could realise, as a result of information in the media report, who the juvenile is.
S.39 states that when a juvenile appears as a defendant or witness in any criminal court other than a youth court there is no automatic ban on the media identifying him/her in a report of the proceedings.
But the adult court e.g. a magistrates or crown court, has discretion to impose such a ban under s.39 of the Children and Young Persons Act 1933. If a section 39 order is made, the scope normally is that, in respect of a person aged under 18 'concerned in the proceedings', no report of the case shall reveal his/her:
1. name
2. or address
3. or school
or include:
1. any particulars 'calculated' to lead his/her identification
2. or any picture of him/her.

Crime (Sentences) Act 1997S.45 can be used when the court feels that a juvenile who persistently offends, or who is responsible for a particularly newsworthy crime, should be identified in the media, as a deterrent to other potential offenders or to enable the community to be alert to the possibility of him/her committing further crime, or to reassure the local community that justice has been done.

Anti - Social behaviour Act 2003
S.86 made the 'default' position in law to be that, unless a s.39 order is made, the media can identify the juvenile on whom as ASBO is imposed.

Violent Crime Reduction Act 2006
Parliament passed law to create a new civil order - a drinking banning order (DBO). In force, if an adult or juvenile aged 16 or over has engaged in criminal or disorderly conduct while under the influence of alcohol, to apply to magistrates or to a county court for such a person to be subjected to such an order.

Case Law

R v Secretary of State for the Home Department, ex p Westminster Press Ltd [1991]
The Queen's Bench Divisional Court ruled in 1991 that the press has no automatic right to be told by the police the name of a person being investigated or who has been charged with a criminal offence.

Examples of a breach of s.8 Magistrates' Court Act [1980]
In 2008, Jewish Chronicle Newspaper Ltd, publisher of the Jewish Chronicle, was fined £1000 after the paper published such a report. In 1996, Graham Glen, the former editor of The Citizen, Gloucester; and the paper's owners, were each fined £4,500 by Gloucester magistrates for the contents of a report of the first appearance in the magistrates court of Fred West, accused of several murders.

R v Blackpool Justices, exp Beaverbook Newspapers Ltd [1972]
The High court ruled that once lifted, the restrictions cannot be re-imposed.

Leeds Justices, exp Sykes [1983]
The High court ruled that if reporting restrictions were to be lifted they had to be lifted in respect of all defendants in the hearing.

R v Secretary of state for the Home Department, ex p Simms [1999]
The right of a convicted prisoner to be visited in jail by a journalist investigating whether there had been a miscarriage of justice was upheld.

R v D (acquitted person: retrial) [2006]
The Court of Appeal granted such a reporting restriction order, but said that in future the media should be given notice of such an application, and suggested that the notice should be of 14 days.

Media Lawyer, 31 December 2008 (Recent breach of s.39)
A production editor of a weekly newspaper was fined £1000 in 2007 after being convicted of a breach under s.49, which he denied. The offence arose from a picture been published of a juvenile whose eyes and nose had been blacked out, but his mouth and hair was visible, and this identification of him led to the fine.

Media Lawyer, 4 March 2004 (Recent breach of section 49)
A district judge at Plymouth magistrates court fined the Plymouth Evening Herald £1,500 in 2003 for publishing a photograph of a 15-year-old boy who had been convicted at youth court of stabbing a fellow pupil. The district judge said evidence by friends and relatives that they had recognised the boy, even though the face was pixilated, meant that the paper was guilty of breaching section 49. An appeal by the paper was rejected.

Media Lawyer,18 December 2007 (Recent breach of section 49)
The Glamorgan Gem newspaper was fined £2,000 in 2008 after breaching a s.39 order by naming a child witness in a murder case. It volunteered to pay her compensation of £5,000 after it admitted the breach to magistrates in Barry.

Todd v Director of Public Prosecutions [2003]
The High Court ruled that the purpose of the Children and Young Persons Act 1933 was not to protect the interests of 'young persons' after they have ceased to be 'young persons'. The court dismissed an appeal against the decision of South Shields youth court that a defendant who was 17 when proceedings against him began no longer had anonymity when the case resumed after his 18th birthday.

R v Teeside Crown Court, ex p Gazette Media Company Ltd and others [2005]
This case concerned a father who was convicted of distributing indecent photographs of a child and a of conspiracy to rape her. Lord Justice Maurice Kay stated that 'offences of the kind established in this are frequently committed by fathers and stepfathers...if the offender is named and the victim is described as an 11 year-old girl...and he has an 11 year- old daughter, it is at least arguable that the composite picture presented embraces 'particulars calculated to lead to the identification' of the victim.

Keating v Knowsley Metropolitan Borough Council [2004]
The High Court (Queen's Bench Division) gave guidance on whether a s.39 order should be made at this interim stage. Justice Harrison said the fact that no allegations had been proved and the defendant had not had the opportunity to put his case were weighty matters to consider. He allowed an appeal by a juvenile against the magistrates' decision to refuse a s.39 order, because there had been no consideration by that bench of the interim nature of the proceedings.

18 December 2007 (Recent breach of section 49)