Part 1 - Crime, Courts and Tribunals

Question 1

When do the s52A restrictions do NOT apply?

Answer 1

To summary trials or cases where the defendant is found guilty/pleads guilty at magistrates court but case is sent to crown court for sentencing.

Question 2

When are s52A restrictions NOT in force?

Answer 2

(a) When a defendant asks for these restrictions to be lifted - the magistrates’ court has discretion whether to do this.
(b) The court can also decide to lift these section 52A restrictions, even if no request is made by a defendant for them to be lifted. If any defendant objects to the restrictions being lifted, the court must decide if it is in the interests of justice to lift them.
(c) The restrictions cease to apply where a defendant pleads guilty to an either-way offence at an allocation hearing
(d) Restrictions no longer apply at the conclusion of any subsequent crown court trial.

Question 3

Can argument about lifting restrictions be reported? When?

Answer 3

Even if the restrictions are lifted the Act does not permit any argument in court about the lifting to be reported until the conclusion of all proceedings in the case. If not lifted before then, the restrictions expire at that conclusion.

Question 4

What is the contempt danger even when s52A reporting restrictions do not apply?

Answer 4

Even when the section 52A restrictions do not apply, there is a contempt danger in disclosing previous convictions aired in court during a preliminary hearing.

Question 5

Can magistrates’ names be kept from journalists? Explain.

Answer 5

The High Court (QBD) ruled in 1986 that a magistrates’ bench and their clerk who had withheld names of magistrates had ‘acted contrary to law’. Also, that Lord Justice Watkins said there was ‘no such person known to law as the anonymous JP.’

Question 6

How is it decided whether the accused in a case is granted bail or held in custody?

Answer 6

The current presumption in law under the Bail Act 1976 is that wherever possible the defendant should be allowed bail rather than remanded in custody, unless the magistrates believe that if granted bail the accused person would be likely to (a) commit further offences, (b) interfere with the course of justice (e.g. intimidate witnesses) or (c) abscond.

Bail can also be denied for other reasons e.g. for the defendant’s safety, or the defendant is alleged to have committed an offence while already on bail in relation to another case or is already in prison.

Question 7

If bail is granted, why may conditions be imposed?

Answer 7

If bail is granted the court can impose conditions to ensure that the accused person turns up for their trial. Common conditions applied to bail are:
◼ Reporting to the police on a regular basis
◼ Residing in a particular place
◼ Surrendering passport
◼ Surety

Question 8

What are the CPS guidelines on lifting s49 ‘in the public interest’?

Answer 8

Where offending is persistent, serious, has affected a large number of people or identification might prevent further offending
▪ Significant public disorder where the public needs to be satisfied that offenders have been brought to justice
▪ Serious offences which have undermined the public’s confidence in the safety of their communities
▪ Hate crimes which have a corrosive impact on communities

Question 9

Explain the anonymity rules for juveniles appearing at adult courts for any reason.

Answer 9

There is no automatic anonymity for juveniles appearing for any reason at other criminal courts, such as an adult magistrates’ court or crown court. But adult courts can impose a reporting restriction under section 45 of the Youth Justice and Criminal Evidence Act, 1999 (formerly orders were made under section 39 orders under the CYPA until a change in the law in April 2015). Section 45 orders are discretionary. Therefore, unless the adult court expressly imposes a section 45 order the media are free to publish details of a young person’s identity.

Question 10

What are the three potential scenarios for the use of a s45 order?

Answer 10

o A section 45 order is imposed by the court and the juvenile cannot be identified at all in relation to the proceedings
o A section 45 order is not imposed at all and the juvenile can be identified
o A section 45 order is in force during trial but is lifted once the juvenile is convicted – usually if he/she has committed a serious offence

Question 11

When do s49 and s45 orders cease to apply?

Answer 11

When the juveniles turn 18 and anonymity in the courts ends.

Question 12

What is a s45A order of the YJCEA 1999 and who can give it?

Answer 12

In some circumstances, youth courts and adults courts can give lifelong anonymity to juveniles – except defendants. This is done by making an order under section 45A of the Youth Justice and Criminal Evidence Act 1999 (YJCEA).

Question 13

List some unlawful or unreasonable uses of section 45 orders.

Answer 13

▪ Section 45 orders should not be treated as automatic
▪ Courts have accepted that in some cases orders are unnecessary because the child concerned is too young to be affected by publicity about the case
▪ Section 45 should not be used to ban identification if the identity of the juvenile is already in the public domain. The court can still make one, but such orders are seen as ‘inappropriate’.
▪ They cannot be made to give anonymity to dead children
▪ They cannot be made to protect adult defendants
▪ They cannot be made to protecting juveniles not involved in the proceedings
▪ An order might place a substantial and unreasonable restriction on reporting of the case and it is in the public interest to lift the restriction (introduced under s45 YJCEA)

Question 14

Cite the relevant case law for unlawful/unreasonable use of section 45 orders.

Answer 14

• dead children: Re S (a child)
• a child not concerned in proceedings: R v Jolleys, ex parte Press Association
• protecting the identity of adult defendants: R v Southwark Crown Court ex p Godwin

Question 15

State what the media can report if a CBO is breached and why. How can a youth court use its powers in this case?

Answer 15

Breaching a CBO is a criminal offence which, in the case of a juvenile, means the case will be heard in a youth court. The media can identify a young person appearing in youth court charged with breaching a CBO because section 49 CYPA does not apply in such proceedings. There is no problem naming an adult who breaches an ASBI or CBO.

However, a youth court can use its discretionary power to protect the young person’s anonymity using a section 45 order (YJCEA). If the court does decide to give the young person charged with breaching a CBO anonymity, it must publicly state why it is doing so.

Question 16

What is the ultimate court of appeal?

Answer 16

The Supreme Court.

Question 17

Cite the relevant law which states it is an offence to breach confidentiality of jury deliberations.

Answer 17

Section 20D of Juries Act 1974.

Question 18

What is a suspended jail sentence?

Answer 18

Where the defendant does not have to go to jail unless s/he commits further offence of breaches further requirement of suspended sentence.

Question 19

What is conditional discharge?

Answer 19

The court has not immediately imposed or specified punishment but states that if offender commits another offence within a period of specified time, s/he is liable to be punished for the first offence as well the subsequent conviction.

Question 20

What is absolute discharge?

Answer 20

The court feels that no punishment, other than the fact of the conviction, is necessary.

Question 21

What is community punishment?

Answer 21

The court orders the defendant to obey one or more requirements, either punitive or non-punitive, e.g. unpaid community work, a fine, a curfew, or requirement to attend treatment for drug/alcohol dependency.

Question 22

What are concurrent sentences?

Answer 22

All jail terms served at the same time, where the longest sentence is the time served if a convicted person is given more than one sentence.

Question 23

What are consecutive sentences?

Answer 23

All sentences are added up and the defendant services them one after the other.

Question 24

What are TICs?

Answer 24

At sentencing a defendant may admit to committing crimes with which they have not yet been charged, and therefore will ask for these other offences (not on the charge sheet) to be taken into consideration (called TICs) after being convicted of other offences. It is important to recognise the difference between previous convictions and TICs. Defendants may choose to admit to offences that they have not yet been charged with as they are likely to receive a lesser sentence by doing this.

Question 25

Which two acts should you refer to when discussing sexual offences and why?

Answer 25

In exam answers you should refer to the 1992 Act when outlining the restrictions and the 2003 Act when identifying a sexual offence to which the restrictions apply.

Question 26

What does s1(4) of the 1992 Act state?

Answer 26

These restrictions only apply in relation to media reports of criminal proceedings related to an allegation of a sexual offence and do not apply to media reports when someone appears in court charged with criminal proceedings other than proceedings for the alleged sexual offence. So if, for instance, a witness alleges during testimony in a court case involving a theft charge that he/she was the victim of a sexual offence, the reporting restrictions under the Sexual Offences (Amendment) Act do not apply, and the witness making such claims can be identified in a news report of the trial.

Question 27

How can a court issue a ban on the identification of vulnerable adult witnesses? Why might this be necessary?

Answer 27

Section 46 of the YJCEA.

A section 46 order bans identification of an adult witness where a court believes that the quality of the witness’s evidence or cooperation may be diminished by fear or distress and that anonymity will improve the quality of evidence and degree of cooperation.

Question 28

What is a s46 order NOT intended for?

Answer 28

Protection of adults who may be embarrassed about publicity.

Question 29

What does a s46 order ban publication of?

Answer 29

This is a lifetime ban on identifying the witness and prohibits the publication of the witness’s name, address, any educational establishment attended, workplace and still or moving image.

Question 30

Before granting a s46 order, what must the court be satisfied of?

Answer 30

Before granting such an order, the court must satisfy itself that the ban is in the interests of justice - the circumstances of the case must be considered, and the age, background, occupation, ethnicity and religious beliefs of the witness plus behaviour towards the witness by the accused (and his/her family and associates) may be relevant. The witness’s wishes should also be considered.

Question 31

What did Lord Diplock say in LG vs Leveller Magazine regarding open justice? What is this quote from?

Answer 31

‘This principle can only be departed from where the nature and circumstances of the particular proceedings are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice.’

• from case law.

Question 32

Under common law, when can the media/public be excluded?

Answer 32

• Where their presence would defeat the ends of justice.
• Where a secret process is the subject of evidence and publicity would defeat the purposes of the litigation.
• Matters affecting children e.g. wardship/guardianship cases.
• Where the secrecy of the state demands it.
• Lunacy cases.

Question 33

Under statute, when can the media/public be excluded?

Answer 33

• Section 121 of the Magistrates’ Courts Act 1980 states that the media and public must be allowed into court.
• Section 37 of the Children and Young Persons Act 1933 allows courts to exclude the public (not the media though) when a juvenile is giving evidence in a case about indecency
• Section 25 of the Youth Justice and Criminal Evidence Act 1999 allows a court to make a ‘special measures exemption’ to exclude the public, and most journalists, when intimate evidence is being given, although the court must permit one reporter to remain in court when such a vulnerable or intimidated witness gives evidence.

Question 34

Which article in the ECHR is relevant with regard to open justice?

Answer 34

Article 6: everyone is entitled to a free and public hearing.

Question 35

What does ‘in camera’ mean?

Answer 35

proceedings of a court heard in the absence of media and public, e.g. national security matters.

Question 36

What does ‘in chambers’ mean?

Answer 36

often used to describe a hearing of an application heard in a judge’s room. These are often preliminary hearings. If there is no reason for this to be in private, journalists who want to report the application should be allowed to attend “where practicable”.

Question 37

What does ‘in private’ mean?

Answer 37

Can refer to either ‘in camera’ or ‘in chambers’.

Question 38

What do the Criminal Procedure Rules give anyone the right to?

Answer 38

Information about an ongoing case or one concluded up to six months ago.

Question 39

Do the Criminal Procedure Rules give access to skeleton arguments?

Answer 39

Skeleton arguments used by counsel in criminal cases should normally be provided to journalists who want to report cases contemporaneously.

Question 40

To whom should requests for skeleton arguments be made?

Answer 40

The party who presented them in court.

Question 41

Under the Criminal Procedure Rules, what information are journalists allowed to obtain?

Answer 41

• date of hearing
• each alleged offence and any pleas entered
• the court’s decision in any public hearing (including decisions on bail and sending for trial at a different court)
• whether the case is under appeal
• outcome of trial or appeal
• any reporting restrictions
• identity of prosecutor, defendant, lawyers (and lawyers’ addresses) the judge or magistrates

Question 42

How can information be obtained under the Criminal Procedure Rules?

Answer 42

If the case is less than six months old, by verbal request. If it is older than six months, written.

Question 43

What do the Civil Procedure Rules give access to?

Answer 43

The Civil Procedure Rules (also CPR, which can cause confusion) give the right of access to documents in the county and high courts.

Question 44

What are journalists allowed to obtain under the Civil Procedure Rules? Explain what this includes.

Answer 44

Journalists are allowed to inspect and obtain a copy of the “statement of the case” which includes:
• claim form
• details of the claim
• counter claim/defence
• Witness statements
• Skeleton arguments
• Copy of final judgment

Question 45

What is the informal approach to challenging a court for unreasonable/unlawful use of reporting restrictions?

Answer 45

• Approach to the court clerk in any type of court.
• Through the clerk, the court can be asked to provide the order in written form, specify in writing why it was made and specify what section of the appropriate Act of Parliament is held to apply.
• Your editor’s support can be phoned, faxed or emailed to the court.

Question 46

What is the formal approach to challenging a court for unreasonable/unlawful use of reporting restrictions?

Answer 46

• A decision made by magistrates can be challenged by a judicial review. The media can apply to a High Court judge in QBD.
• Decisions made by crown court judges can be challenged by s159 of the Criminal Justice Act 1988 - a section 159 appeal – which gives the media a right of appeal to the Court of Appeal.

Question 47

Name some common areas of challenge.

Answer 47

• s45 orders
• s11 orders
• s4 orders (technically s4(2) of Contempt of Court Act)

Question 48

What are the most common areas of challenge against use of s45 orders?

Answer 48

1. dead children
2. adults
3. juveniles who are not involved in proceedings
4. children who are too young to be affected by media reports and
5. juveniles who turn 18 before their trial.
6. juveniles whose identity is already in the public domain

Question 49

What do s11 orders do and when are they usually used?

Answer 49

Section 11 orders (under the Contempt of Court Act) give courts the power to order that a name or any other matter should be excluded in a media
report forever, if the court has first decided to withhold the name or other matter from the public.
However, this power should only be used by the court where the administration of justice requires it. Section 11 orders are usually used in blackmail and national security cases.

Question 50

Name invalid uses of s11 orders and cite the case law with it.

Answer 50

1. A section 11 order cannot be valid if the name or other matter has already been mentioned in open court (example: R v Arundel Justices ex parte Westminster Press [1985] QBD)
2. A section 11 order is not to be used for “the comfort and feelings of defendants” – Lord Justice Watkins (example: R V Evesham Justices, ex parte McDonagh, [1998] QBD)
3. A section 11 order could not simply be used to protect privacy or avoid embarrassment – Mr Justice Latham (examples: R v Westminster City Council, ex parte Castelli [1995] QBD and R v Central Criminal Court ex parte Crook [1984])
4. To justify anonymity for those claiming risk of attack e.g. police officers there must be ‘real and immediate risk to life’ (example: Re Officer L [2007] UKHL, 36). Journalists should ask what objective evidence there is of a real and immediate risk.

Question 51

What do s4 orders do?

Answer 51

Technically s4(2) of Contempt of Court Act. They allow a temporary postponement in reporting for as long as the court thinks fit, to avoid a substantial risk of prejudice or impediment to the administration of justice in those proceedings or others pending or imminent.

Question 52

When are s4 orders used?

Answer 52

A section 4 order could be imposed, for instance, where matters are discussed in the absence of the jury, or (more commonly) when a defendant may be being tried for several offences in separate trials or the current trial you are reporting is linked to other forthcoming trials, for example where members of a criminal gang are all being tried in different proceedings. A section 4 order would be used in these circumstances to avoid prejudicing the current or pending trials.

Question 53

How is a postponed report treated upon eventual publication? Name the act that states this.

Answer 53

The Contempt of Court Act 1981 also provides that where publication of a report is ordered to be postponed, eventual publication of it will be treated as contemporaneous for purposes against libel action.

Question 54

What does s4(1) of the 1981 Act say and why is it important?

Answer 54

If no s.4(2) order is made section 4(1) of the 1981 Act gives you protection for media reports as it says that a fair and accurate report of legal proceedings held in public and published contemporaneously and in good faith will not be in contempt of court in the absence of a s4(2) order.

Question 55

What types of deaths can be subject to an inquest?

Answer 55

Sudden or unnatural deaths or deaths in custody, including Britons who have died abroad.

Question 56

What are inquests NOT about?

Answer 56

Attributing blame.

Question 57

Where are inquests held?

Answer 57

Coroner’s court.

Question 58

What privilege applies to media reports of Coroner’s court proceedings?

Answer 58

Absolute privilege.

Question 59

What is the purpose of an inquest?

Answer 59

To find out who the deceased was, how, when and where s/he died and the particulars to be registered. This includes Britons who die abroad.

Question 60

When might a jury be used in inquests and how large would it be? How would you report this?

Answer 60

In some inquests (e.g. a death in custody or state detention, workplace deaths or a death which was the result of an act or omission of a police officer) a jury of 7-11 jurors is used. In media reports, if a coroner sits without a jury you would write that the coroner recorded a verdict, whereas a jury returns a verdict.

Question 61

What are inquests regulated by?

Answer 61

Coroners (Inquests) Rules 2013.

Question 62

What does Rule 11 of Coroners (Inquests) Rules state?

Answer 62

Rule 11 of Coroners (Inquests) Rules states that inquests must be held in public unless there is a risk to national security; and that a pre-inquest hearing may be held fully or partly in camera (in private) if there is a risk to national security or it is in the interests of justice to do so.

Question 63

What does Rule 23 of Coroners (Inquests) Rules state?

Answer 63

Rule 23 of Coroners (Inquests) Rules which allows the coroner to allow documentary (written) evidence rather than oral evidence, where this evidence is unlikely to be disputed or the witness is not able to attend in person for any reason, for example a busy hospital doctor may not have to attend in person. The coroner must in such circumstances announce the name of the witness and nature of the evidence. Such evidence is usually read aloud on direction of the coroner, unless the coroner directs otherwise e.g. the contents of a suicide note are usually not read out in court to protect the deceased person’s family. The coroner must allow ‘any interested party’ to see a copy of the undisputed written evidence.

Question 64

What can be used in Coroner’s courts to protect the identity of young people involved in the proceedings?

Answer 64

Section 39 order.

Question 65

Outline determinations (verdicts).

Answer 65

Coroners, and juries, increasingly provide a narrative verdict which is very helpful in writing media reports – rather than attaching a one-word label to the death, there is a short statement detailing the circumstances in which, on the evidence, the coroner/jury believe the person died.

Question 66

How might someone appeal against an inquest verdict?

Answer 66

There’s no direct means of appeal but the relatives of the deceased can apply to the High Court for a judicial review which can quash the original verdict and institute a fresh inquest.

Question 67

Outline ‘treasure trove.’

Answer 67

Another important role of coroners is declaring ‘treasure trove’. Sometimes inquests are called over newly-discovered valuables which are at least 300 years old and with 10% silver or gold content. If that is the case they may be deemed treasure trove. Finds must be reported to the coroner and may become crown property, with a reward going to the finder and the owner of the land on which the treasure trove was found.