This briefing deals with initial hearings in the magistrates’ courts, and two sections of the Contempt of Court Act.
In the Coventry journalism law test, students need to:
- know the risk of publishing material that may prejudice a trial
- know the points that may be safely reported at preliminary hearings
- know about the two main kinds of restrictions under the Contempt of Court Act
Automatic reporting restrictions apply to early hearings that take place in magistrates’ courts. These courts deal with three levels of offence:
- summary: dealt with only by magistrates
- indictable: can be tried only in the Crown court
- either-way: can be tried in either court
Students sometimes believe that because there are restrictions in some magistrates’ court hearings, this means that no hearings can be fully reported. This is wrong. Full trials in the magistrates’ courts – and cases where the defendant(s) plead guilty – can be fully reported under the principle of open justice, as long as the usual rules are observed: reporting must be accurate, balanced and contemporaneous (published as soon as possible after the evidence is heard).
But there are also early hearings, before the trial or sentencing hearings, where reporting is heavily restricted to prevent undue influencing of magistrates or jurors who will try the case later.
There are actually two sets of rules, for different kinds of early hearing. For the Coventry media law test, it is only necessary to know about preliminary hearings, the so-called “eight points” that may safely be reported, and when one might go beyond them.
Preliminary hearings – serious crimes
All criminal cases start in the magistrates’ court but the most serious cases are sent to the Crown court. For indictable offences, this is automatic; for either-way offences, the magistrates will decide whether to hear the case when it is ready to go to trial.
This first hearing is called a preliminary hearing (there may be more than one of them). The charges will be set out, and the court will decide whether to grant bail (allow the defendant to remain free while awaiting trial) or remand the defendant in custody (detain them in prison or another secure place to await trial).
Section 52A or the Crime and Disorder Act 1998 limits what can be reported from these hearings, to avoid prejudice to the future trial.
It bans any reference to evidence in the case unless this detail is set out in the wording of the charge (it can be worth asking the court for the specific wording).
It also bans reference to previous convictions, or any other material that, potentially, could prejudice a trial.
What can be published safely (S52A)
Under Section52A, reporters are safe if they confine their reports to:
- name of the court and the magistrates’ own names
- the defendant’s name, age, home address and occupation
- the charges – in full or summarised
- names of lawyers in the hearing (defence and prosecution)
- if adjourned (delayed), the date and place to which the case is adjourned
- “arrangements as to bail”
- whether legal aid was granted
- “relevant business information” in a serious or complex fraud case
Very important: if bail is refused, reports MUST NOT say why. This might prejudice the trial by suggesting the defendant is a known criminal, say.
“Arrangements as to bail” means:
- was bail granted?
- what are the conditions – for instance, the defendant must stay at a bail hostel or observe a curfew, meaning they cannot go out at night
- surety arrangements – usually meaning a penalty that will be paid if a defendant does not return to court when required
For the purpose of the Coventry media law test, it is not necessary to be able to explain “relevant business information” in a fraud case. For more detail, see McNae’s Essential Law (23rd edition) pages 80-81.
What else can be published?
A reporter can safely say that a defendant denies the charge – but must not report that he admits it. This is because if cannot possibly prejudice a case to report the denial: the eventual jury will know this from the outset. But an admission of guilt may have been made under pressure and the defendant may change their mind by the time of the trial: in this case, reporting it would be prejudicial.
Any neutral facts on matters that cannot possibly be contested in the trial can also be reported – for instance, before his trial there would have been no harm in saying Rolf Harris was a much-loved star of children’s TV, because this was well known and indisputably true.
However, to be absolutely safe, stick to the eight points under the Magistrates’ Court Act, above.
Less commonly, reporters might find themselves covering pre-trial hearings, in the magistrates’ or Crown courts. There are also automatic restrictions for these hearings, and there is a list of ten points that can safely be reported.
The purpose of these hearings is usually to deal with legal issues, such as whether a particular piece of evidence is admissible, for to swear in a jury.
Nothing must be reported about rulings on whether evidence is admissible – just as no report can be made about legal arguments in a trial in the absence of the jury.
Section 8C of the Magistrates’ Courts Act 1980 sets out ten points that can safely be reported. Essentially, they’re the same as the S52 points for preliminary hearings, except that the names, ages, occupations and addresses of witnesses can also be reported.
Can the restrictions be lifted?
Yes, but it is unusual. A court might decide it is in the public interest for restrictions to be lifted. A defendant might even apply for them to be lifted, in the hope that publicity will bring forth information that will help their case.
Restrictions under the Contempt of Court Act
Parties involved in a court case may apply for reporting restrictions to be imposed, or a judge might take the initiative to impose them.
Here are two key figures to remember, under the Contempt of Court Act 1981:
- orders under Section 4(2) allow a court to delay reporting of all or part of a trial
- orders under Section 11 can ban publication of a name, or indeed any other information related a trial.
Section 4 orders are temporary. Section 11 orders are permanent.
The media can challenge orders if they think they are too restrictive or they have been wrongly imposed (it happens!).
S4 and s11 orders can be made in any type of court that exercises the judicial power of the state. This includes inquests and employment tribunals.
There are three circumstances in which s4(2) orders are usually made:
- When the jury is sent out during discussions about whether a piece of evidence should be excluded on legal grounds
- when material emerges that might prejudice other active or imminent trials (say, if the defendant is being tried on another matter in a different trial) or
- where it is believed witnesses may have been intimidated.
In fact, courts can impose s4(2) orders in ANY situation in which they think there might be a substantial risk of prejudice. But some courts think their powers are wider than they really are: journalists should be willing to challenge orders.
Court guidelines say s4(2) orders can only be used to prevent prejudice to other trials. They cannot be used to restrict reporting that does not present a risk of prejudice.
Section 11 orders ban publication of a name or other detail in a court case.
But they cannot be imposed if the information has already been given in open court.
In 2007 a witness answered a question in open court and revealed secret information that should only have been released “in camera”, meaning in private. An s11 order was imposed but The Times successfully challenged it because it has been stated in open court.
S11 orders are seen as a severe restriction on the principle of open justice. Guidelines say they must only be imposed where absolutely necessary in the interests of justice. They should never be imposed to protect someone’s business or reputation, or to spare them embarrassment or even to protect someone’s children.
Very occasionally, s11 orders are imposed because a witness seriously believes their life will be at risk if they are named. Article 2 of the Human Rights Act – addressing the right to life – is a factor here.
Can you write about someone whose identity is protected by an s11 order?
Yes – but not in connection with the trial. The order only relates to reports of the court case. You can still write an article about the person in a way that is not connected to the court case. For instance, if an s11 article protected the identity of an actor in a court case, you could still review the actor’s latest movie or write a general interest article about him, as long as no mention is made of the case.
There is more detail about s4(2) and s11 orders, including when they can and cannot be imposed, and time limits, in Quinn’s Law for Journalists 4th edition, pages 118 to 123.