Press Association, R (on the application of) v Cambridge Crown Court

A Crown Court has no power under the statutory protection afforded to complainants in sexual offence cases to prohibit publication of a convicted defendant’s name. Responsibility for avoiding identification of the complainant rests with publishers, who are subject to the statutory criminal prohibition.

A postponement order requires necessity to avoid a substantial risk of prejudice to pending or imminent proceedings. It cannot ordinarily impose an indefinite ban. A publication direction concerning a name may be made only where the court lawfully withheld that name during the proceedings. Judges may alert the press to risks arising from publication, but their observations cannot bind an editor unless supported by a lawful order.

The Press Association appealed against two orders made by Cambridge Crown Court after a defendant had been convicted and sentenced in public for rape and breaches of a restraining order. The first order relied on section 4(2) of the Contempt of Court Act 1981. It indefinitely prohibited publication of material concerning the defendant’s name which might identify the complainant.

The judge replaced that order with one under section 1(2) of the Sexual Offences (Amendment) Act 1992. He intended to protect the complainant’s health, safety and statutory anonymity. The central issue was whether the Crown Court had jurisdiction to restrict publication of a convicted defendant’s name for that purpose.

1. The appeal was allowed. Neither order could be sustained because the Crown Court lacked jurisdiction to impose a blanket prohibition on publication of the defendant’s name.

2. Section 4(2) of the Contempt of Court Act 1981 permits postponement only where necessary to avoid a substantial risk of prejudice to the administration of justice in the proceedings concerned or other pending or imminent proceedings. It is a measure of last resort and is directed principally to postponement, rather than permanent prohibition. The defendant had already been tried, convicted and sentenced in public, and no pending proceedings were at risk. The indefinite initial order was therefore outside the section.

3. Section 11 of the Contempt of Court Act 1981 could not support the order. Its operation requires the court first to have exercised a lawful power to withhold the name or matter from the public during the proceedings. The defendant’s name had not been withheld.

4. Section 1 of the Sexual Offences (Amendment) Act 1992 confers lifelong anonymity on a complainant and criminalises prohibited publication. It does not confer an express or implied judicial power to anonymise a defendant. The express power in section 3 to lift a complainant’s anonymity in defined circumstances reinforced that conclusion. Responsibility for deciding what may safely be published rests with editors, reporters and other publishers, who bear the risk of criminal liability.

5. Open justice ordinarily requires the media to be able to identify persons convicted and sentenced for criminal offences. Restrictions require statutory authority and, where a discretion exists, absolute necessity in the individual case. An anonymity order may exceptionally be available where publication creates a real and immediate threat to life or safety, or a significant threat to the administration of justice. No such circumstances founded the orders in this case.

6. A judge may express concerns about publication and discuss them with press representatives. Responsible editors should consider those observations carefully, but the observations cannot constitute a binding order. Rule 16.1 of the Criminal Procedure Rules does not create a power absent from primary legislation.

1. Court of Appeal (Criminal Division): The appeal was allowed. The court held in [2012] EWCA Crim 2434 that both reporting restriction orders were made without jurisdiction.

2. Cambridge Crown Court: After the defendant had been convicted and sentenced in public, the judge made an indefinite order under section 4(2) of the Contempt of Court Act 1981. He then superseded it with an order under section 1(2) of the Sexual Offences (Amendment) Act 1992, intended to prevent publication of the defendant’s name from identifying the complainant.