SANA MUSHARRAF v THE QUEEN

Section 1(4) of the Sexual Offences (Amendment) Act 1992 qualifies the anonymity right in section 1(1). It does not prohibit reporting a criminal trial or appeal where the alleged sexual offence is not the offence charged in those proceedings. Section 4(2) of the Contempt of Court Act 1981 confers no free-standing right to anonymity. It permits postponement only where necessary to avoid a substantial risk of prejudice to pending or imminent proceedings. Without that risk, there is no jurisdiction to impose a reporting restriction.

The appellant was convicted at Isleworth Crown Court of two stalking offences and sentenced to 33 months' imprisonment, with a 10-year restraining order. On 4 May 2022 the Court of Appeal extended time and granted leave on parts of her proposed appeals against conviction and the breadth of the restraining order, while refusing leave concerning the custodial sentences. After the oral judgment, she applied to anonymise its transcript.

She had previously made allegations of qualifying sexual offences against a man who was not prosecuted. The allegations featured in the stalking trial and appeal and had already been widely reported with her name and image. The issues were whether section 1(1) of the Sexual Offences (Amendment) Act 1992 applied despite section 1(4), and whether section 4(2) of the Contempt of Court Act 1981 supplied a basis for anonymity or temporary reporting restrictions.

The applications were refused. The court directed that the oral judgment transcript be made publicly available at the same time as the written judgment.

1. Statutory anonymity. The appellant's allegations fell within the ordinary scope of section 1(1) of the Sexual Offences (Amendment) Act 1992. However, section 1(4) qualified that right. Its ordinary meaning excluded restrictions on reporting proceedings other than proceedings at, intended to lead to, or on an appeal arising from, a trial at which the accused was charged with the relevant sexual offence. The proceedings concerned stalking charges, and the alleged sexual offences were never charged. The reasoning of R v Beale (Jemma) [2017] EWCA Crim 1011, [2017] EMLR 26 applied, although the facts might be distinguishable. The Judicial College Guide was commentary, not authority, and did not justify a narrower construction.
2. Section 3. Section 3 of the 1992 Act permits a trial judge to displace section 1 only where its effect imposes a substantial and unreasonable restriction on reporting and it is in the public interest to remove or relax that restriction. The court was satisfied that those provisions were not engaged. It left open any wider question about waiver or the significance of section 3 in a case where section 1 applied.
3. Contempt of court. Section 4(2) of the Contempt of Court Act 1981 confers no right to anonymity. It permits postponement of reporting only where necessary to avoid a substantial risk of prejudice to the administration of justice in the proceedings in question or in other proceedings pending or imminent. The court was not confident that a retrial was pending or imminent, and the appellant identified no risk that publication would prejudice it. Applying R v Beale (Jemma) [2017] EWCA Crim 1011, [2017] EMLR 26 and R v Sherwood, ex parte Telegraph Group Ltd [2001] EWCA Crim 1075, [2001] 1 WLR 1983, there was no jurisdiction to make an order.
4. Open justice. No other legal basis for anonymity was established. On the undisputed facts, there was no basis for overriding the ordinary rule of open justice.

• Court of Appeal (Criminal Division): On 4 May 2022, time was extended and leave was granted on parts of the proposed appeals against conviction and the breadth of the restraining order. The applications for anonymity and reporting restrictions were subsequently refused in [2022] EWCA Crim 678.
• Isleworth Crown Court: The appellant was convicted of two stalking offences in March 2019 and sentenced in July 2019 to 33 months' imprisonment, with a 10-year restraining order.