Nctj Diploma Essential Media Law Session 3

NCTJ DIPLOMA ESSENTIAL MEDIA LAW SESSION 3

ANONYMITY

The age of criminal responsibility in this country is 10 – anybody under that age cannot be prosecuted. The term juvenile describes anybody from 10 to 18th birthday. Generally speaking a juvenile in contact with the law will remain anonymous. The Ofom Code says we must, in reporting police investigations into an alleged crime, have particular regard to juveniles – suspects, victims or witnesses – before using their name, address, school or image. The Code says “particular justification” is required for the broadcast of material relating to the identity of an under-18 year old who is a potential defendant.

Juvenile defendants are generally dealt with in Youth Courts where the public is excluded but may appear in adult court if an adult is co-accused and will face Crown Court if charged with a serious crime.

The Children and Young Persons Act 1933

This Act governs our reporting of juveniles in court cases. The two important “Sections” to understand are Section 49 and Section 39.

Section 49

Section 49 is the automatic reporting restriction preventing the identification of any juvenile in a Youth Court – be they defendant, witness or, in some cases, alleged victim. (This would not apply to a dead victim). In reports of Youth Courts we must not give the defendant’s name, address, school or photograph – or indeed say anything which could lead to identification. For instance to mention that a 15 year old girl was a paper-girl in a small village would identify her. Adult witnesses can be named – providing, of course, this would not lead to ID of the defendant. A father could not be named and a head teacher would be difficult to name.

These Section 49 restrictions also apply to any appeals from the Youth Court to Crown or High Court.

They do NOT apply to Crown Court hearings where a juvenile has been committed for trial or sentence – although a Section 39 order will almost certainly be imposed (see below).

Section 49 anonymity is strictly policed – newspapers have been prosecuted recently for inadequate pixillation or blacking out of photographs.

Section 49 anonymity can occasionally be lifted – to avoid injustice, if it’s necessary to apprehend a juvenile for a serious or violent offence (as happened recently with a 16 year old youth), or in the public interest – as with a 14 year old girl who became Britain’s youngest person convicted of drink driving. The media does sometimes apply for Section 49 orders to be lifted in the public interest– McNae p. 94 – 95.

Once a juvenile passes his/her 18th birthday during proceedings they can be named (though at the time of writing – Sept 2014 - this is the subject of a challenge.)

Section 39 – juveniles in adult courts

There is no automatic ban on identifying juveniles appearing in adult courts – but it’s almost certain that the adult court will pass a disrectionary Section 39 order on him/her. (And on any person under 18 appearing in any way in an adult court – witnesses etc.)

Juveniles appear in adult court when they’re jointly charged with an adult or when they’re committed from youth court to Crown Court for trial or sentencing.

A Section 39 order prevents us from giving the juvenile’s name, address, school or picture – and from giving any details likely to lead to identification.

Section 39 orders cannot be:

Passed on a dead child or on an adult in order to protect a child – they must be passed on the child him/herself. There are frequent examples of wrong orders challenged by the media.
However, the effect of a Section 39 on a juvenile may be to prevent the naming of an adult – for instance a father charged with violence against his child.
Section 39 orders must be imposed with good reason and must be on a person “concerned in proceedings” – not somebody just mentioned in passing.
There are also several recent examples of the media successfully challenging Section 39 orders imposed on very young children and babies – the reasoning being that naming them would have very little effect on somebody so young.
They cannot be passed on an adult defendant’s children simply to spare them embarrassment. However….the children of several of the women in the Suffolk strangler case received Section 39 orders due to the notoriety of the case.

IT’S BECOMING INCREASINGLY COMMON FOR SECTION 39 ORDERS TO BE LIFTED ON CONVICTION FOR JUVENILES FOUND GUILTY OF VERY SERIOUS OFFENCES. REMEMBER ROBERT THOMPSON AND JOHN VENABLES IN THE JAMES BULGER CASE. HOWEVER….THEY MAY THEN NEED LIFELONG ANONYMITY ONCE RELEASED FROM PRISON.

Injunctions to prevent anti-social behaviour – also known as Criminal Behaviour Orders. (Formerly Anti-Social Behaviour Orders or “ASBOs”)

Anti-social behaviour orders - or CBOs - are civil matters, not criminal ones, but are heard in Magistrates Courts. (Breach of an order, however, is a criminal matter.)

They exist to prohibit repetition of anti-social behaviour – usually something such as rowdy, noisy behaviour or possibly shop-lifting. Applications for them generally come from local authorities, social housing landlords, etc.

There is NO automatic restriction on us naming a juvenile given such an injunction/CBO – indeed, the reason for their introduction was to inform people in the local community that action was being taken against certain people causing trouble. Fairly pointless if nobody knows who they are. However…….magistrates can, of course, impose discretionary Section 39 orders if they so wish. The media frequently challenges these orders as they seem to go again the very spirit of the legislation. (McNae p100-102).

So…..in a straightforward case involving a juvenile we should be able to name them. However…..

If an interim injunction is granted whilst the case is adjourned and no allegations proved it’s possible that a Section 39 order will be made and is unlikely to be lifted.

“Bolt-ons”

There is also a “bolt-on injunction/CBO” – this is where the order is part of the juvenile’s sentence for a criminal offence. You may therefore have a position where a 16 year old, in Youth Court, is found guilty of a crime and then receives an injunction. He/she is identifiable in relation to that but not (under Section 49) in relation to the crime! However, it’s been accepted that the Section 49 anonymity should cease to apply once the bolt-on has been imposed unless the magistrates decide, for some other reason, that they’ll impose a discretionary Section 39.

Breach of an injunction/CBO

If a juvenile breaches the order it’s a criminal offence and they’ll be taken to youth court. HOWEVER…..under the Serious Organised Crime and Police Act 2005 the Section 49 anonymity was removed from such hearings. We are therefore entitled to name the youth. The magistrates can still impose a Section 39 but they must give reasons for doing so – and can, as ever, be challenged.

Sex Offences

Any victim of any sexual offence – man or woman, adult or child – has automatic guaranteed anonymity for life. No additional reporting restriction is needed in court.

The anonymity applies as soon as the allegation is made – by the victim or anybody else – and regardless of whether the police have been told, whether the allegation is withdrawn, whether there’s a prosecution, a conviction or an acquittal.

The anonymity covers a very wide range of sexual offences including rape, assault by penetration, sexual activity with a child (what used to be known as incest), trafficking for sexual exploitation, exposure, voyeurism or grooming a child for sex. It also applies to victims of intended crimes – conspiracy to commit rape, for instance, or incitement. (McNae p103 - 108).

***** NOTE: There have been several Acts in recent years covering sexual offences – for the purposes of your exam you will be expected to name the Sexual Offences Act 2003. *******

It applies to civil as well as criminal courts and to employment tribunals which are hearing allegations of sexual harassment, for instance.

The anonymity does NOT apply is the person is dead (a charge of rape and murder, for instance) or when a complainant is prosecuted for perjury, wasting police time or perverting the course of justice. Nor does it apply when an allegation that a sexual offence occurred is made in evidence in proceedings in which that allegation was never a charge under sexual offence law. Or in certain other circumstances by court order – McNae p.110.

An adult – over 16 - can waive their own right to anonymity (a child cannot, nor can anybody else on their behalf). However you should get it in writing and ensure the person is very clear as to the consquences of waiving. Nobody should have interfered with their “peace or comfort” in gaining the waiver.

The anonymity means that you cannot give “any matter” which might lead to the person being identified. This includes:

Name and address
School or other educational establishment
Place of work
Any still or moving picture

Sometimes it’s possible to name a very large educational establishment – though other detail might lead to identification. For instance, to say a rape victim was a 21 year old studying journalism at the University of Kent might well lead to her identification whereas just to name the University might not. And of course you may publish some detail – and other members of the media something different. This is what is known as “jigsaw identification”.

Jigsaw identification

This means that, by putting together the various details reported by different media organisations (although each of them is legal in its own right) the public would be able to identify the victim. So if the local newspaper said a rape victim was a mother-of-two, the local radio station said she was a care worker in an old people’s home and the local TV station said she was in her thirties and worked in the Gillingham area then a much broader picture would be built it. It’s important for all local media to agree to go down the same path. McNae p.96-98 and p. 105.

Ethical considerations

There may be very rare occasions when the media is allowed to identify a victim of a sex offence (in the public interest or as a result of a court order) but we still need to think carefully about whether to do so. The Editors' Code of Practice

Clause 11 says the press must not publish anything which might lead to identification unless there is adequate justification and they are legally free to do so.

Clause 7 says that the press must not, even if legally free to do so, identify children under 16 who are victims or witnesses in a case involving sex offences. In any press report of sex offences against a child the adult may be identified but the word “incest” must not be used if it would identify the child. And care must be taken that nothing implies a relationship between adult and child. (McNae p.111).

Jigsaw identification could be regarded as an ethical breach in these contexts.

Ofcom’s Broadcasting Code also warns against jigsaw identification and use of the term “incest”.

Other anonymity issues

Section 11

Under Section 11 of the CCA a court can ban publication of a name or other matter in court reports. Typically this is for blackmail victims and in cases of national security.

Adult witnesses

Sometimes an adult witness will be given anonymity under Section 46 of the Youth Justice and Criminal Evidence Act if they are considered to be in fear or distress – and that this could affect the quality of their evidence.

Injunctions

Under the European Convention on Human Rights, the High Court may issue an injunction preventing the media identifying somebody. This will be under Article 8 – the right to privacy. Footballers used to use this a great deal! Notorious criminals such as Thompson and Venables and Maxine Carr also have their ID protected under Article 2 – the right to life.

Accuracy

We are under an ethical obligation of accuracy as expressed in the Editors' Code and the Ofcom Code.