On 7 October 2004 the courts were given new powers by Section 46 of the Youth Justice and Criminal Evidence Act 1999 to restrict reports about certain adult witnesses in criminal proceedings.
This is one of a suite of measures the Act introduced to protect vulnerable witness. The object of this measure is to encourage a witness to give evidence and/or co-operate with the party calling that witness, despite fears of the consequences of publicity.
A party to the proceedings may apply to the court for a reporting direction in relation to a witness in those proceedings, other than the accused, if that witness is over 18. The restriction lasts for the lifetime of the witness, unless removed or varied by the court or publication is consented to in writing by the witness.
The court can prohibit the publication of any matter relating to the witness if it is likely to lead members of the public to identify him/her as being a witness in the proceedings. This includes his/her name, address, identity of any educational establishment or place of work, and any picture of him/her.
In deciding whether to make a direction the court must be satisfied that the quality of evidence and/or level of co-operation given by the witness is likely to be diminished “by reason of fear or distress on the part of the witness in connection with being identified by members of the public as a witness in the proceedings”.
Neither “fear” nor “distress” is intended to cover a disinclination to give evidence on account of there being a prospect of embarrassing publicity.
The court should be satisfied that any media reporting which led to the witness being identified would in itself reduce the quality of the witness evidence or co-operation; otherwise it should not restrict the reporting.
The court must take a number of factors into account including: n the sort of offence being tried and the circumstances in which it allegedly occurred n the age of the witness n (if relevant) the social and cultural background and ethnic origins of the witness n the witness’s situation at home and at work n any particular religious beliefs or political aspects to the case n any behaviour towards the witness on the part of the accused or members or associates of the accused’s family or any other person likely to be an accused or a witness in the proceedings n finally, the court must consider any views expressed by the witness.
When deciding whether to make a direction the court must also consider whether it would be in the interests of justice and the public.
In determining public interest, the court must have regard to the open reporting of crime, the prevention and exposure of miscarriages of justice and the welfare of any person in relation to whom the restrictions may apply.
It is envisaged that the measure will be most commonly used in cases of domestic violence to overcome a victim’s fears that intimate details of the relationship may be published. One can also see it being used in cases involving refugees and asylum seekers, harassment, and racially aggravated offences.
Jonathan Crusher is a partner in the Media Team at Ferrer & Co