Reporting restrictions in criminal proceedings: New procedural safeguards for open justice

In accordance with the principle of open justice and freedom of expression, criminal proceedings usually take place in public. However, there are some important exceptions to the open justice principle which are designed to protect the fairness of the proceedings or persons involved in them. 

Some are mandatory, such as the restriction on reporting the identity of complainants in sexual offence cases or of youths in the Youth Court. Others are discretionary but can be imposed if certain conditions are met. 

Discretionary orders can, for example, require a delay in a matter being reported, or information being withheld from the public, or they may prevent the reporting of names or information leading to the identification of young or vulnerable defendants or witnesses. 

Because of the impact on press freedom and open justice, the court will hear from members of the media before making any such order. Once an order is made, a breach, even if inadvertent, is a criminal offence and can also be a contempt of court.

New notification requirements under the Criminal Procedure Rules

An Explanatory Memorandum to the Criminal Procedure Rules states that it was reported that journalists rarely received notice of an application for a reporting restriction or notice of a restriction that had been ordered, and that arrangements had been agreed between media representatives and HM Courts and Tribunals Service to facilitate the giving of such notice by creating lists of interested journalists’ email addresses which court staff can give to applicants.

The Criminal Procedure Rules have now been amended to deal with this concern. Rule 6.2 states that the court may not make a reporting restriction unless each party and any other person directly affected has been notified and is present, or has had an opportunity to attend, or to make representations.

Rule 6.4 requires applications to be made as soon as possible, and include a description of the court’s power to make the order and why the proposed terms are necessary. 

The application must include information about the proposed terms and duration of the order and if the application is for an order under s45A or 46 YJCEA protecting youths and vulnerable witnesses, the applicant must provide further information relevant to the court’s power to make those orders. 

The applicant must notify all other parties, reporters and any other persons as directed by the court. The amendments specify that the orders should be put in writing as soon as possible and the media should be put on notice as to the existence and terms of the order. Similar rules apply to applications to vary or remove a reporting restriction.

Judicial scrutiny and the need for proportionality

Because of the impact on press freedom and open justice, orders that restrict what can be reported must be kept under review by the court. Further amendments were made to the Criminal Procedure Rules to require consideration and review of reporting restrictions, and of arrangements for public observation and reporting, during trial preparation and immediately before trial.