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Restrictions on reporting

THE LONDON Freelance Branch meeting on 8 November focused on restrictions on reporting court cases - as it turned out, mostly on those concerning anonymity for victims of sexual assault, which is necessary if they are to come forward.

Our speakers were Chris Frost, who is Professor Emeritus of Journalism at Liverpool John Moores University, Chair of the NUJ's Ethics Council, sits on the National Union of Journalists National Executive and is a former President and past Chair of the Association for Journalism Education; and Frank Shennan, a journalist with a law degree from the University of Edinburgh who trains journalists in Scotland.

Chris Frost

Chris Frost

Chris Frost concentrated on the situation in England and Wales. He noted that journalists "try to ensure that when we're covering court cases we tell people what's going on. It's important that everybody can understand what crimes are being committed and where people have been arrested so that we know what's happening."

But in the 1970s "it became clear that the system wasn't working in the case of charges of rape or sexual assault." In 1975 the Advisory Group on the Law of Rape, chaired by Mrs Justice Rose Heilbron, reported that "public knowledge of the indignity which [the complainant] has suffered in being raped may be extremely distressing and even positively harmful, and the risk of such public knowledge can operate as a severe deterrent to bringing proceedings." Thus "the balance of argument seems to us to be in favour of anonymity for the complainant other than in quite exceptional circumstances." Anticipating reactions which have continued on and off for 46 years, the report continued: "While fully appreciating that rape complaints may be unfounded, indeed that the complainant may be malicious or a false witness, we think that the greater public interest lies in not having publicity for the complainant."

"One of the big problems in rape and sexual assault cases," Chris summarised, "is that the accused or their lawyers may try to justify the attack and bring up the claimant's sexual history."

To protect against that, the Sexual Offences Amendment Act 1976 - the relevant parts of which have been replaced by the Sexual Offences Amendment Act 1992 - granted anonymity to those bringing accusations of rape or sexual assault.

But despite anonymity, Chris noted, "a lot of women don't report assaults. There are still not enough cases being brought by the police and the prosecuting authority."

Chris is "not really aware of much controversy about that anonymity. There was an argument in 1976 about whether the accused should have anonymity. It became a political football." Those charged with such offences briefly had anonymity, but this was repealed in the Criminal Justice Act 1988.

In a separate thread of legislation, the Youth Justice and Criminal Evidence Act 1999 gave anonymity to young offenders.

And Chris noted one further restriction: the Education Act 2011 says in Section 13 that no-one may identify a teacher accused of serious offences against a pupil before they are formally charged. In any case, he noted, such reporting is often circumscribed "by the police not telling us who's been arrested".

Global variation

How trial reporting in general is handled varies greatly around the world. In Sweden, Denmark and the Netherlands the ethical codes are restrictive. In Germany, it is usual for those arrested to be identified only by first name and the initial of their last name, as in "Josef K". Chris reported that in Germany the media should publish names or photographs permitting identification of defendants only in exceptional cases - and in these the rule depends on their earlier behaviour and the intensity with which they seek publicity. Publication of names and photos of witnesses is generally not permissible.

In contrast there are jurisdictions, such as the US, where practically any restriction on reporting is held to be unconstitutional - but then the court has to spend weeks selecting a jury, often making candidates fill in questionnaires designed to reveal their prejudices.

In England and Wales there are strict laws about what can be reported and when people can be identified. Generally speaking, the restrictions get tighter at each stage: at the time of the alleged crime; when a suspect is arrested; when they are charged; and when they appear in court.

Editors’ codes

Chris noted that the Editor's code from press regulator IPSO says that even when it legally permitted to do so the press must not name those under 16 who are victims or witnesses in cases involving sex offences. The press must not name victims of sexual assault generally, "unless there is adequate justification".

The other, offically-recognised but much smaller, regulator Impress has a very similar standards code, specifying that "publishers must preserve the anonymity of victims of sexual offences, except as permitted by law or with the express consent of the person."

"If anything," Chris noted. "the pressure is on us as journalists not to cover things as much as we have in the past." And there is repeated pressure for further limitations. On the day of the meeting survivors of terrorist attacks called on the media to rethink coverage of them, including avoiding naming terrorists and suspected terrorists. Everyone would have to think very carefully about all the effects of any proposal to enforce such requests.

"It's clear," Chris lamented, "that journalists do sometimes do behave quite badly. Some go bashing into bereaved families and destroy their lives in the rush to get that important story." IPSO has a hotline for members of the public. It seems to work sometimes but "maybe that needs improvements as well?"

Frank Shennan

Frank Shennan

Meanwhile in Scotland...

Introducing Frank Shennan, Chair Matt Salusbury recalled finding himself in Sheriff Court in Scotland while covering protests against a "G8" summit conference at Gleneagles. Police had closed the court to the public without telling the presiding Sheriff - one could get only in with a press card. Defendants were told to "come back for an intermediate diet" and Matt turned to a translator next to him and said "I'm from England and I need a translator."

Frank in return recalled having run a course in media law for journalists on a paper in Berwickshire that straddles the border between England and Scotland, and having to teach both legal systems.

"In theory," as Frank put it, "Contempt of Court law is the same north and south of the border." The restrictions on identifying victims of any kind of sexual assault apply on both sides. But the court procedure to apply the Sexual Offences Amendment Act 1992 is different, because the structure of the courts is different.

So that Act "signally failed to align practice north and south of the border," Frank said, "because Scottish judges went their own way." One reason is that criminal procedure is a lot faster in Scotland, so there is less possibility of a "fade factor". In England, for example, this could reduce the impact of a claim that a defendant arrested in November 2021 was guilty - it would have faded by the time the case came before a jury in, say, March 2023.

Frank briefly discussed the case of Craig Murray, who in May 2021 was sentenced to eight months in prison for contempt of court in blog posts about the trial of Scottish politician Alex Salmond, who in March 2020 was found not guilty of 13 sexual offences. The judge, Lady Dorrian, remarked when sentencing Murray that "it appears from the posts and articles that he was in fact relishing the task he set himself, which was essentially to allow the identities of complainers to be discerned - which he thought was in the public interest - in a way which did not attract sanction."

Interestingly, in February 2021 one Clive Thompson was sentenced to six months in prison for Tweeting the actual names of Salmond's accusers. Thompson has been described (by the Daily Mail) as a "Scottish independence activist". Frank wondered whether Thompson thought he would get away with it because he was abroad at the time he Tweeted.

In her rejection of Murray's application to appeal Lady Dorrian also noted that he "describes himself as a 'journalist in new media'. Whatever that may involve, it is relevant to distinguish his position from that of the mainstream press, which is regulated, and subject to codes of practice and ethics in a way in which those writing as the applicant does are not."

Frank noted that "until these two cases, the last time that anyone had been jailed for Contempt of Court in Scotland was decades ago. But it may be that Scottish judges tend to be very hard on any breach of the rules on identification of alleged victims."

Returning to the general issues, Frank noted that "there is evidence that sexual offences are the most under-reported. To not deter people from coming forward we have these restrictions in place." In the Salmond case "there was a specific order in place" against naming complainers. "What is unusual," though, "is the imposition of a jail sentence rather than a fine - which has been usual for the past 30-40 years in Scotland."

Questions

Branch Chair Matt Salusbury asked about the "jigsaw identification" element. He has been told, for example, that he can report being at a court in London but not which court, because that could indirectly identify a school that witnesses or victims attend.

Frank responded that he tells journalists he is training to think of jigsaw identification "like zooming in on a Google map". Details that wouldn't count as identification among the welter of people in Glasgow or in London would do so in Tain or even in Inverness.

So the old Press Complaints Commission and its successor IPSO have policy on what information can and can't be used. In the case of incest the policy is to name the perpetrator but not the crime: "serious sexual assault against a child" suffices.

"The burden," Frank observed, "is on the journalist to get this right. If you said a child was the daughter of a school dinner lady, in some villages that would identify the child - so, to pursue the online map analogy, zoom out and use a broader description of the place."

Matt went on to ask about "other contempt minefields" and was concerned about a defendant's previous convictions. Mentioning them before a verdict was delivered in a trial could obviously breach the provision of the Contempt of Court Act 1981 against "prejudice to the administration of justice". But what about the Rehabilitation of Offenders Act 1974, which specifies periods after which different convictions are "spent" and should not be reported?

Frank responded that the Rehabilitation of Offenders law is "not normally a problem" for journalists. It is quite separate from Contempt of Court. You may run into problems with defamation if you report a spent offence. "It's a grey area, but not used particularly often."

Rules on identification of children are a problem. In criminal cases in Scotland you can identify someone under 18 if they're involved as a witness but are not a victim or a perpetrator, so long as none of the accused is under 18. But such cases are likely to be heard before Children's Hearings. These are open to bona fide representatives of the press - but most journalists don't report them "because there they can't name the people involved".

Frank recalled getting a call from the Shetland Times about reporting a case involving a 17-year-old who by press day had turned 18. If someone turns 18 in the course of the trial it's OK to name them... but "In the Shetland case, the trial was over and done with and the perpetrator turned 18 the day after sentence."

He reported that the National Council for the Training of Journalists (NCTJ) "used to do a law weekend in Scotland, where journalists shared experiences. We heard that the clerk of this court is a pain and that we can't get information out of police there. We should do more sessions like that."

Branch Vice-Chair Deborah Hobson asked about celebrities getting injunctions against mentioning certain things. Chris responded that "we're entitled to challenge things of that nature and the courts are usually sympathetic - just because you're famous you don't get special treatment."

Branch Committee and NUJ National Executive member Tim Dawson agreed that we should share more within the NUJ about hindrances to reporting, and he has been working on trying to make that happen. He asked both speakers whether it is their advice "that Contempt of Court is Byzantine, or that there are simple rules and you'll most likely be OK if you follow them?"

Frank noted that the biggest problem in teaching contempt in Scotland is that when he says "you can't do that" students often respond "the Sun just did that" and he has to reply "but that's England!"

"In Scotland," Frank said, "you can get guidance from the Crown Office - if you can get them to answer the phone." Chris added that Contempt of Court should not really be a problem "provided you've read a decent law book". The more difficult part is about how different courts apply the law.

"Often," Chris said, "local papers are brushing up against the law, breaching the IPSO code and approaching the edge of Contempt of Court - possibly because a young journalist is not getting support from an editor and because there are so few people in newsrooms."

And in the civil courts...

Branch member David Landau reported experience of the Bureau Local of the Bureau of Investigative Journalism looking at possession order hearings in the County Courts. "We got a lot of push-back from solicitors acting for landlords, or particularly for mortgage companies." They were for example asking these civil courts "to prevent us reporting financial details of a mortgage repossession case. We are not allowed to report the personal finances of the mortgage holder. But luckily this was a data project and didn't need to fight the judge over that one data point in a huge collection."

Chris observed that "lawyers in both civil and criminal courts will do their best to protect their clients. A question, though, is whether an individual who wants to report has the resources to make the argument to the judge that a restriction is unreasonable."