Week 6: anonymous court restrictions

Question 1

Restrictions of reporting on children involved in criminal cases or civil hearing

Answer 1

Criminal cases and children - Section 47 of the Criminal Procedure (Scotland) Act 1995

Section 46 of the Children and Young Persons (Scotland) Act 1937

Question 2

Section 47 of the Criminal Procedure (Scotland) Act 1995

Answer 2

Section 47 of the Criminal Procedure (Scotland) Act 1995 (here)prohibitsthe publication of the
name,
address,
school
or any particulars calculated to lead to the identification of any person under the age of 18 who is an accused, victim or witness in criminal proceedings.

Where a person under the age of 18 years is concerned in the proceedings as a witness only, and no one against whom the proceedings are taken is under the age of 18 years, the requirements shall not apply unless the court so directs.

Question 3

Section 46 of the Children and Young Persons (Scotland) Act 1937 Legal restrictions on identification of children in civil court proceedings

Answer 3

Section 46 of the Children and Young Persons (Scotland) Act 1937 applies to civil proceedings and allows the court to make an order prohibiting publication of details calculated to lead to the identification of a person under 17 years of age concerned in the proceedings.

Pictures of such young person must not be published in newspapers. Breach of a court direction is a specific criminal offence.

Question 4

Civil Cases involving children - adoption

Answer 4

Adoption cases are heard in private unless the court rules otherwise.

Under section 109 of Adoption and Children (Scotland) Act 2007

All documents related to the hearing are kept confidential.

Question 5

Age of criminality

Answer 5

The age of criminal responsibility in Scotland was recently changed from 8 years of age to 12.

A child over 12 but under 16 (or under 18 if already subject to a compulsory supervision order) who commits an offence may be dealt with by a children’s hearing before three members of the Children’s Panel,

the public are excluded but certain journalists may attend.

In more serious cases, including cases where there is an adult who is co-accused, a child over 12 may be tried in a sheriff court or in the High Court of Justiciary;

Question 6

Children’s Hearings (Panel)

Answer 6

Children’s Panel comprises of three volunteer panel members who decide on the right course of action for the child who is accused of breaking an offence.

The panel is a legal meeting and can recommend a care order or can decide on what compulsory care measures need to be taken.

Usually hears cases for those children under 16

Question 7

how does children (scotland) act 1995 limit reporting of childrens hearing?

Answer 7

It is an offence to publish any matter likely to identify a child concerned in proceedings at a Children’s Hearing or certain other proceedings under the Children (Scotland) Act 1995

(1) A person must not publish protected information if the publication of the information is intended, or is likely, to identify—
(a) a child mentioned in the protected information, or
(b) an address or school as being that of such a child.

It shall be a defence in proceedings for an offence under this section for the accused to prove that he did not know, and had no reason to suspect, that the published matter was intended, or was likely, to identify the child or, as the case may be, the address or school.

Question 8

Sexual Offences

Answer 8

There is no statutory automatic prohibition on the identification of complainers/victims where sexual offences are alleged to have taken place in Scotland

A criminal court dealing with an alleged sexual offence may make an order prohibiting identification of a complainer/victim under section 11 of the Contempt of Court

Such anonymity normally applies in respect of allegations of rape, assault by penetration, sexual assault, sexual coercion, indecent communications, sexual exposure and voyeurism, as defined in the Sexual Offences (Scotland) Act 2009, as well as sexual offences, including incest, against a child.

jigsaw identification must be avoided

Question 9

Modern Slavery Act

Answer 9

Identification in a Scottish publication of complainants in sexual offence cases alleged to have been committed in England and Wales is a criminal offence.

Identification in a Scottish publication of complainants in cases involving an offence of ‘human trafficking for exploitation’, as defined by section 2 of the Modern Slavery Act 2015, alleged to have been committed in England and Wales is a criminal offence.

Question 10

Jigsaw identification

Answer 10

Put it simply…

Describes the effect of when someone to whom the law has given anonymity is identified to the public because of a combination of accumulation of detail
(Dodd and Hannah, 2020, McNae’s, Oxford, p.124)

It can happen if different news outlets write different details about someone who has anonymity.

When anonymity provision applies automatically in law or by court order there is particular danger of jigsaw identification if journalists serving different media organisations or blogging in their own right fail to liaise
When covering such a story, to avoid jigsaw
identification, i.e. they may need to agree prior to publication the specifics of non-identifying detail to be published; that there is also a specific ethical obligation to avoid jigsaw

Care must be taken that nothing in the report implies the relationship between the accused and the child.

This offers good practical guidance for all media when reporting on such matters.

Question 11

Anonymity

Answer 11

Anonymity normally applies in respect of allegations of…
rape,
sexual assault,
sexual coercion,
indecent communications,
sexual exposure and voyeurism,
as defined in the Sexual Offences (Scotland) Act 2009,
as well as sexual offences, including incest and against a child.

Question 12

Waive right to anonymity

Answer 12

Complainers/victims may consent to being identified in a media report,

it is good practice that such consent be provided in writing and signed by the complainer/victim,

or otherwise recorded in permanent form.

Question 13

Courts have the power to make an order postponing reporting of all or parts of a case.

(a) Name the section and act of parliament under which this order can be made.

Answer 13

(a) Section 4(2) - 2 marks of the Contempt of Court Act [1981] - Another 2 marks
- Act can be made to avoid a substantial risk of prejudice to the proceedings
- The act can be made in respect of case before that court or other case pending imminent
- Order can last as long as court thinks necessary for this purpose
- Give an example of a circumstance in which such an order may be made and explain what the purpose of the order would be –
- Court bans reporting of an accused’s first trial until end of his/her second trial to avoid prejudice to the trial
- Court bans reporting of admitted charges until end of trial of denied charges to avoid prejudice to the trial
- Court bans reporting of debate during preliminary hearing until end of trial to avoid prejudice to the trial
- Court bans reporting of fact that accused faces other charges until end of first trial to avoid prejudice to the first trial

Question 14

Witness Anonymity Orders

Answer 14

a court may upon application under section 271N of the Criminal Procedure (Scotland) 1995 impose an order enabling a witness in criminal proceedings to give evidence anonymously.

Such an order does not have an immediate impact upon the media but may be supported by an order under section 11 of the Contempt of Court Act 1981.

Remember, that ‘bona fide‘ (genuine) members of the Press are entitled under section 271HB of the Criminal Procedure (Scotland) Act 1995 to be present in court upon the imposition of special measures to exclude the public where evidence is taken from a ‘vulnerable’ witness.

It is illegal for the media in any publication to identify an adult during their lifetime as being a witness in a criminal court case if an order has been made in respect of the case by a court under section 46 of the Youth Justice and Criminal Evidence Act 1999

This is because the witness is/was considered to be in fear or distress about being identified as a witness in reports

The normal scope of the restriction is that no detail should be published which could identify that person

And what, as regards scope, the section says is detail which in particular should not be included if likely to identify such a person.

Question 15

Female Genital Mutilation (Scotland)

Answer 15

A court may under sections 5G and 5H of the Female Genital Mutilation (Scotland) Act 2005 impose an order withholding from the public (during or in connection with the proceedings) the name of a person

who would be a protected person were the female genital mutilation protection order made

the name of any other person or other information.

It does not have an immediate impact upon the media but may be supported by an order under section 11 of the Contempt of Court Act 1981.

Question 16

interdicts

Answer 16

Please be aware of injunctions or interdicts which have been made to prevent the identity of people including criminals.

This is usually because the person has said, under Article 8 of the European Convention on Human Rights, their privacy is being invaded.

child or mentally incapacitated adult in a civil case,
or a famous footballer or actor or business person accused of adultery who begins a privacy action
instances involving accused/defendants in notorious criminal cases

The court may have made a permanent order that no current photograph be published of that person in any report referring to him/her,

nor any indication published of their current whereabouts nor of any new identity he/she has or may be given.

Question 17

Reporting from the courts

Answer 17

Journalists should be registered with the Scottish Courts and Tribunals Service (SCTS) to use laptops or mobile phones in court to produce ‘fair and accurate reports of proceedings in court’ by means of ‘live, text-based communications’.

These include emails, texts and tweets…

…provided the court has not banned such use in the particular case and that such use is silent and unobtrusive

Question 18

Taking photos

Answer 18

It is contempt of common law for you to take photos of victims, the accused or witnesses or members of the jury inside or on the steps or precinct of the court. You cannot therefore publish these.

You can take pictures of those involved in the court proceedings (not the jury) as they enter the court on the public pathway/street.

If there are court restrictions preventing the identify from being released of the victim, the accused or witnesses, then you cannot take pictures of them

Question 19

Aaron Campbell case study

Answer 19

• However an exception was made in the case of Aaron Campbell who was found guilty of murdering six year old Alesha McPhail (2019)
• The sixteen-year-olds name was released because his name was already in the public domain and on social media platforms
• The restriction was lifted after Campbell was found guilty and before he was sentenced.

Question 20

Section 44 of the Children (Scotland) Act 1995

Answer 20

Section 44 of the Children (Scotland) Act 1995prohibitsthe publication of information that identifies or is likely to identify a child concerned in proceedings before a children’s hearing.

Question 21

Sexual Offences section 11 order

Answer 21

A criminal court dealing with an alleged sexual offence may make an order prohibiting identification of a complainer/victim under section 11 of the Contempt of Court Act;

The source and scope of conventions applied in reporting sexual offences alleged to have taken place in Scotland, including the avoidance of the risk of ‘jigsaw identification’ especially in cases involving allegations of incest.

A section 11 order should be made before the trial starts
There is no point in one being requested once an accused, victim/witness or witness has stated their name and address for the purpose of the court records.

This is usually used to protect person from real and immediate risk to safety

And toprotect the justice process

It is not there to protect reputation.

Question 22

Venables and Thompson

Answer 22

In the case of Jon Venables and Robert Thompson, who murdered toddler Jamie Bulger, details of their new identities have been banned.

This is based on Article 2, the right to life and
Article 3, the right which protects against degrading treatment or torture.

It’s feared that if the public get wind of the new identities, their lives could be at risk.

Also usually given to help the rehabilitation process.

Question 23

What are the benefits of open justice?

Answer 23

• Full reporting of cases helps promote public confidence in the justice system
• Deters any inappropriate behaviour on behalf of the Court
• Promotes the values of the rule of law
• Puts pressure on witnesses to tell the truth
• May leader to further evidence becoming available
• Avoids false rumours about the case being created