Re Press Association
| Jurisdiction | England & Wales |
| Judge | Lord Justice Gross,Mr Justice Mitting |
| Judgment Date | 05 December 2012 |
| Neutral Citation | [2012] EWCA Crim 2434 |
| Docket Number | Case No: 2012/02657 C5 |
| Court | Court of Appeal (Criminal Division) |
| Date | 05 December 2012 |
[2012] EWCA Crim 2434
The Lord Chief Justice of England and Wales
Lord Justice Gross
and
Mr Justice Mitting
Case No: 2012/02657 C5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CAMBRIDGE CROWN COURT
His Honour Judge Hawksworth
T20117145
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr M Dodd on behalf of the Press Association
Ms C Matthews for the Crown
Mr L Mably (instructed by the Attorney General) as Friend of the Court
Hearing dates: 6 th November 2012
The Lord Chief Justice of England and Wales:
This is an appeal by the Press Association (PA) against orders made by His Honour Judge Hawksworth at Cambridge Crown Court on 16 April 2012.
On that date he made:
i) an order (the initial order) under s.4(11) (plainly a typographical error for s.4(2)) of the Contempt of Court Act 1981 (the 1981 Act) imposing an indefinite prohibition on the publication of "anything relating to the name of the defendant which could lead to the identification of the complainant which could have serious consequences for the course of justice."
This was followed shortly afterwards by:
ii) an order superseding the initial order (the order) under s.1(2) of the Sexual Offences (Amendment) Act 1992 (the 1992 Act), again imposing a prohibition, unlimited in time, on the publication of "anything relating to the name of the defendant which could lead to the identification of the complainant which could have serious consequences for the course of justice."
A cursory glance at these orders underlines that the issue raised in the appeal is directed to the openness of the administration of criminal justice and the jurisdiction, if any, of the Crown Court to make an order restricting publication of the name of a defendant convicted of sexual offences for the purpose of protecting the interests of others, in particular the complainant.
We shall briefly summarise the essential facts.
On 14 February 2012 the defendant was found guilty of five counts of rape (counts 1–5) and four counts of breaching a restraining order (counts 6–9). The trial had taken place in open court and the case had been listed under the defendant's full name. On 16 April a sentence of imprisonment for public protection, with a minimum term of 8 years and 273 days, was imposed on him.
On that date counsel for the prosecution (Ms Matthews) and counsel for the defendant appeared before the judge. According to Ms Matthews she was not seeking an order which would prohibit the publication of the defendant's name; she merely wanted to draw to the judge's attention – and for him to alert the press – to the concerns which would arise if the defendant's name were published. In this way, the ambit of any proposed reporting of the case would be clear and the risk that the media would inadvertently undermine the complainant's anonymity by publishing the defendant's name would be avoided. Whatever her intention, the judge plainly thought that Ms Matthews was seeking an order to impose a prohibition on the publication of the defendant's name. The judge made the initial order under s.4(2) of the 1981 Act. Thereafter, however, a representative of the local press persuaded the judge that s.4(2) of the 1981 Act did not apply. The judge remained concerned about the consequences for the complainant if the identification of the defendant led to her identification. He was concerned, both about the possible impact on her health and wellbeing and about other risks (upon which it is unnecessary to elaborate) should the complainant's family become aware of these offences and the defendant's responsibility for them. We understand the concerns of the judge, and readily acknowledge that he was proceeding with the best of intentions, namely the protection of a woman who had been the victim of grave crime committed by the defendant. Thus informed, the judge weighed up the freedom of the press on the one hand and the consequences for the complainant on the other. He underlined that the press was free to publish the facts of the offences and the sentence passed on the defendant; he did not see how the public interest would be "further bolstered by simply the publication of the man's name …". Accordingly, having carried out the balancing exercise he believed appropriate, the judge decided to continue the initial order, but using a different section for this purpose: hence the order under s.1(2) of the 1992 Act.
The applicable statutory provisions
Section 4(2) of the 1981 Act provides:
"In any such proceedings (i.e. legal proceedings held in public) the court may, where it appears necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, or in any other proceedings pending or imminent, order that the publication of any report of the proceedings, or any part of the proceedings, be postponed for such period as the court thinks necessary for that purpose."
Section 11 provides:
"In any case where a court (having the power to do so) allows a name or other matter to be withheld from the public in proceedings before the court, the court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary for the purpose for which it was so withheld".
The 1992 Act, as its preamble makes clear, makes provision relating to anonymity in connection with allegations and criminal proceedings relating to certain sexual offences. Section 1 provides, inter alia:
"(1) where an allegation has been made that an offence to which this Act applies has been committed against the person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the person against whom the offence is alleged to have been committed.
(2) where a person is accused of an offence to which this Act applies, no matter likely to lead members of the public to identify a person as the person against whom the offence is alleged to have been committed shall during the complainant's lifetime be included in any publication".
It is a criminal offence to contravene section 1 of the Act, whether by naming or enabling a "jigsaw" identification to be made. The ambit of the offence is not limited to the press. In short, it encompasses publication of prohibited material by anyone by whatever means publication occurs, and extends to bloggers and twitterers or any other commentators. However, we note that the sentence is confined to a financial penalty. Whether this is always a sufficient punishment for those who deliberately breach the anonymity of the victim of sexual crime appears to us to require urgent reconsideration.
The submissions
PA's ground of appeal, admirably addressed in writing (and developed briefly orally), by Mr Dodd, was that the judge had no power to make an order anonymising the defendant, whether under ss.4( 2) or 11 of the 1981 Act or s.1(2) of the 1992 Act. So far as the 1992 Act was concerned, the responsibility for ensuring the lifelong anonymity granted to victims of certain offences under s.1, rested with the editors, and those reporting any trial, not with the court. The press was well aware that a breach of the anonymity provisions in the 1992 Act would give rise to a criminal offence and editors were reminded of their responsibilities by the Editors' Code of Practice. He contended that Parliament having considered and rejected the reintroduction of anonymity for defendants in cases involving sexual crime, it was not open to the court to...
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