ITN News & Ors v R

A reporting direction under section 46 of the Youth Justice and Criminal Evidence Act 1999 may prohibit publication of a witness’s image even though the witness is named and otherwise publicly known. Identification as a witness is not confined to disclosure of a name. The court must make a separate finding that fear or distress about public identification is likely to diminish the quality of the evidence; special measures do not automatically justify a reporting direction.

The restriction must serve the interests of justice and be no wider than necessary to protect the evidence while avoiding a substantial and unreasonable interference with open reporting. A restriction on images of an adult witness’s children may be justified where their publication would identify the witness and undermine that protection.

During the trial of Michael and Mairead Philpott and Paul Mosley for manslaughter arising from a fatal house fire, Lisa Willis gave important prosecution evidence. She had previously appeared publicly with members of her family, but had moved, changed her appearance and taken steps to prevent people connected with Michael Philpott from locating her and her children.

Thirlwall J first imposed a temporary restriction under the Contempt of Court Act 1981. She then revoked it and made a section 46 order under the Youth Justice and Criminal Evidence Act 1999, prohibiting publication of images linking Ms Willis or her children to the trial. The media organisations’ later application to revoke that order was dismissed.

The media sought leave to appeal, contending that the Court of Appeal lacked jurisdiction and that section 46 could not restrict images of a witness whose identity was already public.

1. Leave was granted, but the appeal was dismissed. Section 159(1)(c) of the Criminal Justice Act 1988 should receive a wide construction. It provides a route by which the media may challenge a Crown Court reporting restriction even where no appeal against conviction or sentence is before the Court of Appeal. A section 46 reporting direction falls within that provision, including a direction confined to photographs or film.

2. The Crown Court’s power to impose the restriction was statutory. A special-measures direction and a reporting direction are distinct powers. The need for special measures does not automatically establish eligibility for a reporting direction. The court must instead make a separate factual finding that the quality of the witness’s evidence is likely to be diminished by fear or distress connected with public identification as a witness.

3. For section 46, identification is wider than a witness’s name or bare personal identity. The statutory power expressly permits restriction of a still or moving image. Accordingly, a witness may be publicly named yet still be eligible for protection against publication of an image that would expose the witness to recognition or location and impair the quality of the evidence.

4. The order could extend to images of the witness’s children. Their protection was not an independent exercise of family-court jurisdiction. Publication of their images would be likely to identify the mother and thereby affect her ability to give evidence. It was therefore integral to applying the statutory eligibility test to her.

5. The judge had confined the direction to images. Detailed written and verbal reporting of the evidence remained possible. The order was thus no wider than necessary and appropriately balanced the interests of justice with the public interest in open reporting. The reporting direction was properly made and remained in force.

• Court of Appeal (Criminal Division): Leave to appeal under section 159(1)(c) of the Criminal Justice Act 1988 was granted, but the appeal against the reporting direction was dismissed in [2013] EWCA Crim 773.
• Nottingham Crown Court: Thirlwall J revoked an earlier order made under the Contempt of Court Act 1981 and substituted a reporting direction under section 46 of the Youth Justice and Criminal Evidence Act 1999. She later refused the media organisations’ application to revoke that direction.