APPENDICES
¶5.101 The Supreme Court in Re Guardian News and Media stated that the press and law reporters
should ordinarily be permitted to name litigants or parties to proceedings before the courts, although some exceptions had been created by statute. In other cases where anonymity might be necessary, the court had to balance Articles 8 and 10.511
¶5.102 Deliberate breach of reporting restrictions imposed under the Contempt of Court Act 1981
may constitute contempt of court, irrespective of whether there is any real risk of prejudice.512 Further contempt of court may be committed in certain circumstances where information relating to proceedings before a court sitting in private is published, s12 of Administration of Justice Act 1960.
¶5.103 Section 11 of the Contempt of Court Act 1981 provides that in any case where a court allows
a name or other matter to be withheld from the public in proceedings before the court, the court may give 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 withheld. The power to grant anonymity is that derived from the common law. A court can only exercise its powers under s11 to give directions prohibiting the publication of a name in connection with court proceedings if the court first legitimately exercised its power to receive evidence of information without it being disclosed to the public.513
¶5.104 Examples of where anonymity has been granted include where there is potential
embarrassment arising out of a medical condition or because a witness fears violence or reprisals.514 However financial damage or damage to reputation which results from the commencement of court proceedings concerning a person's business is unlikely to amount to special circumstances entitling the court to restrict press reporting.515
¶5.105 Particular reporting restrictions to protect anonymity for certain categories of defendant
1945are set out in statute. For example, s39 of the Children and Young Persons Act 1933 (CYPA) provides that a Crown Court or a Magistrates' Court may make an order protecting a juvenile's anonymity. This can be contrasted with the youth court, where reporting restrictions to protect the juvenile's identity apply automatically (see s49 CYPA). Alleged victims in a case involving one of the sexual offences set out in s2 of the Sexual Offences (amendment) Act 1992 are entitled to anonymity from the point when the allegation has been made. Nothing may be published that is likely to lead members of public to identity the alleged victim, and this continues for lifetime of the complainant. Section 3 permits a court to lift the restriction in certain circumstances, for example where publicity is required by the accused so witnesses come forward and the conduct of the defence is likely to be seriously prejudiced if the direction not given, or where the trial judge is satisfied that the imposition of the prohibition imposes a substantial and unreasonable restriction on the reporting of the proceedings and it is in the public interest to relax the restriction.516 Section 46 of the Youth Justice and Criminal Evidence Act 1999 allowsr a party to make an application for the court to give reporting directions in relation to a witness order than the accused if the direction is likely to improve the quality of the evidence of the witness or their co-operation in the case preparation of any party to the proceedings.
¶Appendix 4 | Legal Materials
¶Offences involving writing, speech or publication 5.106 The common law offences of publishing an obscene libel, defamatory libel and sedition and
seditious libel were abolished by s73 of the Coroners and Justice Act 2009 and the old "speech crimes" have now been replaced by other offences, including those under the Protection from Harassment Act 1997 and the Public Order Act 1986. Other offences relating to writing, speech or publication are now set out in the Obscene Publications Act 1959.
¶Obscene Publications Act 1959 5.107 It is an offence under s2(1) of the Obscene Publications Act 1959 for any person, whether for
gain or not, to publish an obscene article, or for any person to have an obscene article for publication for gain (whether gain to themselves or gain to another).
¶5.108 Pursuant to s1(2) a person shall be deemed to have an article for publication for gain if with a
view to such publication they has the article in their ownership, possession or control. Article is defined in s1(2) as: "any description of article containing or embodying matter to be read or look at or both, any sound record, and any film or other record of a picture or pictures".
¶5.109 An article may be a single item, for example a novel, which must be considered in its totality.
It may also comprise a number of items, for example a magazine. In the latter case each item must be judged individually and it is sufficient if the effect of any one of the items, taken as a whole, is to tend to deprave and corrupt. The point was analysed in Anderson [1972] 1 QB 304 where it was held that a novelist who writes a complete novel and who cannot cut out particular passages without destroying the theme of the novel is entitled to have his work judged as a whole, but a magazine publisher who has a far wider discretion as to what is inserted is to be judged on an item by item basis.
¶5.110 Publication is defined in s1 of the Act as including where a person (a) distributes, circulates,
sells, lets on hire, gives, or lends it, or who offers it for sale or for letting for hire or (b) in the case of an article containing or embodying matter to be looked at or a record, shows, plays or projects it, or, where the matter is data stored electronically, transmits that data.
¶5.111 Obscenity is defined in s1 of the Act as follows:
"if its effect or (where the article comprises two or more distinct items), the effect of any one of its items is, if taken as a whole, such as to tend to deprive and corrupt persons who are likely, having regard to all the relevant circumstances, to read, see or hear the matter contained or embodied in it."
¶5.112 The definition of obscenity goes further than shocking or immoral suggestions, but must constitute a serious menace.517
¶5.113 It is a defence under s2(5) to a charge of publishing, for the accused to prove that they have
1946not examined the article in respect of which they are charged and have no reasonable cause to suspect that it was such that their publication of it would make them liable to be convicted of an offence under s2. This provides a limited defence for defendants who acted as innocent disseminators of material.518 Where the accused is charged with having publication for gain