Office of Public Sector Information
PART II continued CHAPTER IV continued
(4) The court or an appellate court may by direction (“an excepting direction”) dispense, to any extent specified in the excepting direction, with the restrictions imposed by a direction under subsection (3) if it is satisfied that it is necessary in the interests of justice to do so.
(5) The court or an appellate court may also by direction (“an excepting direction”) dispense, to any extent specified in the excepting direction, with the restrictions imposed by a direction under subsection (3) if it is satisfied—
(a) that their effect is to impose a substantial and unreasonable restriction on the reporting of the proceedings, and
(b) that it is in the public interest to remove or relax that restriction;
but no excepting direction shall be given under this subsection by reason only of the fact that the proceedings have been determined in any way or have been abandoned.
(6) When deciding whether to make—
(a) a direction under subsection (3) in relation to a person, or
(b) an excepting direction under subsection (4) or (5) by virtue of which the restrictions imposed by a direction under subsection (3) would be dispensed with (to any extent) in relation to a person,
the court or (as the case may be) the appellate court shall have regard to the welfare of that person.
(7) For the purposes of subsection (3) any reference to a person concerned in the proceedings is to a person—
(a) against or in respect of whom the proceedings are taken, or
(b) who is a witness in the proceedings.
(8) The matters relating to a person in relation to which the restrictions imposed by a direction under subsection (3) apply (if their inclusion in any publication is likely to have the result mentioned in that subsection) include in particular—
(a) his name,
(b) his address,
(c) the identity of any school or other educational establishment attended by him,
(d) the identity of any place of work, and
(e) any still or moving picture of him.
(9) A direction under subsection (3) may be revoked by the court or an appellate court.
(10) An excepting direction—
(a) may be given at the time the direction under subsection (3) is given or subsequently; and
(b) may be varied or revoked by the court or an appellate court.
(11) In this section “appellate court”, in relation to any proceedings in a court, means a court dealing with an appeal (including an appeal by way of case stated) arising out of the proceedings or with any further appeal.
(1) This section applies where—
(a) in any criminal proceedings in any court (other than a service court) in England and Wales or Northern Ireland, or
(b) in any proceedings (whether in the United Kingdom or elsewhere) in any service court,
a party to the proceedings makes an application for the court to give a reporting direction in relation to a witness in the proceedings (other than the accused) who has attained the age of 18.
In this section “reporting direction” has the meaning given by subsection (6).
(2) If the court determines—
(a) that the witness is eligible for protection, and
(b) that giving a reporting direction in relation to the witness is likely to improve—
(i) the quality of evidence given by the witness, or
(ii) the level of co-operation given by the witness to any party to the proceedings in connection with that party’s preparation of its case,
the court may give a reporting direction in relation to the witness.
(3) For the purposes of this section a witness is eligible for protection if the court is satisfied—
(a) that the quality of evidence given by the witness, or
(b) the level of co-operation given by the witness to any party to the proceedings in connection with that party’s preparation of its case,
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.
(4) In determining whether a witness is eligible for protection the court must take into account, in particular—
(a) the nature and alleged circumstances of the offence to which the proceedings relate;
(b) the age of the witness;
(c) such of the following matters as appear to the court to be relevant, namely—
(i) the social and cultural background and ethnic origins of the witness,
(ii) the domestic and employment circumstances of the witness, and
(iii) any religious beliefs or political opinions of the witness;
(d) any behaviour towards the witness on the part of—
(i) the accused,
(ii) members of the family or associates of the accused, or
(iii) any other person who is likely to be an accused or a witness in the proceedings.
(5) In determining that question the court must in addition consider any views expressed by the witness.
(6) For the purposes of this section a reporting direction in relation to a witness is a direction that no matter relating to the witness shall during the witness’s lifetime be included in any publication if it is likely to lead members of the public to identify him as being a witness in the proceedings.
(7) The matters relating to a witness in relation to which the restrictions imposed by a reporting direction apply (if their inclusion in any publication is likely to have the result mentioned in subsection (6)) include in particular—
(a) the witness’s name,
(b) the witness’s address,
(c) the identity of any educational establishment attended by the witness,
(d) the identity of any place of work, and
(e) any still or moving picture of the witness.
(8) In determining whether to give a reporting direction the court shall consider—
(a) whether it would be in the interests of justice to do so, and
(b) the public interest in avoiding the imposition of a substantial and unreasonable restriction on the reporting of the proceedings.
(9) The court or an appellate court may by direction (“an excepting direction”) dispense, to any extent specified in the excepting direction, with the restrictions imposed by a reporting direction if—
(a) it is satisfied that it is necessary in the interests of justice to do so, or
(b) it is satisfied—
(i) that the effect of those restrictions is to impose a substantial and unreasonable restriction on the reporting of the proceedings, and
(ii) that it is in the public interest to remove or relax that restriction;
but no excepting direction shall be given under paragraph (b) by reason only of the fact that the proceedings have been determined in any way or have been abandoned.
(10) A reporting direction may be revoked by the court or an appellate court.
(11) An excepting direction—
(a) may be given at the time the reporting direction is given or subsequently; and
(b) may be varied or revoked by the court or an appellate court.
(12) In this section—
(a) “appellate court”, in relation to any proceedings in a court, means a court dealing with an appeal (including an appeal by way of case stated) arising out of the proceedings or with any further appeal;
(b) references to the quality of a witness’s evidence are to its quality in terms of completeness, coherence and accuracy (and for this purpose “coherence” refers to a witness’s ability in giving evidence to give answers which address the questions put to the witness and can be understood both individually and collectively);
(c) references to the preparation of the case of a party to any proceedings include, where the party is the prosecution, the carrying out of investigations into any offence at any time charged in the proceedings.
(1) Except as provided by this section, no publication shall include a report of a matter falling within subsection (2).
(2) The matters falling within this subsection are—
(a) a direction under section 19 or 36 or an order discharging, or (in the case of a direction under section 19) varying, such a direction;
(b) proceedings—
(i) on an application for such a direction or order, or
(ii) where the court acts of its own motion to determine whether to give or make any such direction or order.
(3) The court dealing with a matter falling within subsection (2) may order that subsection (1) is not to apply, or is not to apply to a specified extent, to a report of that matter.
(4) Where—
(a) there is only one accused in the relevant proceedings, and
(b) he objects to the making of an order under subsection (3),
the court shall make the order if (and only if) satisfied after hearing the representations of the accused that it is in the interests of justice to do so; and if the order is made it shall not apply to the extent that a report deals with any such objections or representations.
(5) Where—
(a) there are two or more accused in the relevant proceedings, and
(b) one or more of them object to the making of an order under subsection (3),
the court shall make the order if (and only if) satisfied after hearing the representations of each of the accused that it is in the interests of justice to do so; and if the order is made it shall not apply to the extent that a report deals with any such objections or representations.
(6) Subsection (1) does not apply to the inclusion in a publication of a report of matters after the relevant proceedings are either—
(a) determined (by acquittal, conviction or otherwise), or
(b) abandoned,
in relation to the accused or (if there is more than one) in relation to each of the accused.
(7) In this section “the relevant proceedings” means the proceedings to which any such direction as is mentioned in subsection (2) relates or would relate.
(8) Nothing in this section affects any prohibition or restriction by virtue of any other enactment on the inclusion of matter in a publication.
Schedule 2, which contains amendments relating to reporting restrictions under—
(a) the [1933 c. 12.] Children and Young Persons Act 1933,
(b) the [1976 c. 82.] Sexual Offences (Amendment) Act 1976,
(c) the [S.I 1978/460 (N.I. 15).] Sexual Offences (Northern Ireland) Order 1978,
(d) the [1992 c. 34.] Sexual Offences (Amendment) Act 1992, and
(e) the [S.I. 1994/2795 (N.I. 15).] Criminal Justice (Northern Ireland) Order 1994,
shall have effect.
(1) This section applies if a publication—
(a) includes any matter in contravention of section 44(2) or of a direction under section 45(3) or 46(2); or
(b) includes a report in contravention of section 47.
(2) Where the publication is a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical is guilty of an offence.
(3) Where the publication is a relevant programme—
(a) any body corporate or Scottish partnership engaged in providing the programme service in which the programme is included, and
(b) any person having functions in relation to the programme corresponding to those of an editor of a newspaper,
is guilty of an offence.
(4) In the case of any other publication, any person publishing it is guilty of an offence.
(5) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(6) Proceedings for an offence under this section in respect of a publication falling within subsection (1)(b) may not be instituted—
(a) in England and Wales otherwise than by or with the consent of the Attorney General, or
(b) in Northern Ireland otherwise than by or with the consent of the Attorney General for Northern Ireland.
(1) Where a person is charged with an offence under section 49 it shall be a defence to prove that at the time of the alleged offence he was not aware, and neither suspected nor had reason to suspect, that the publication included the matter or report in question.
(2) Where—
(a) a person is charged with an offence under section 49, and
(b) the offence relates to the inclusion of any matter in a publication in contravention of section 44(2),
it shall be a defence to prove that at the time of the alleged offence he was not aware, and neither suspected nor had reason to suspect, that the criminal investigation in question had begun.
(3) Where—
(a) paragraphs (a) and (b) of subsection (2) apply, and
(b) the contravention of section 44(2) does not relate to either—
(i) the person by whom the offence mentioned in that provision is alleged to have been committed, or
(ii) (where that offence is one in relation to which section 1 of the [1992 c. 34.] Sexual Offences (Amendment) Act 1992 applies) a person who is alleged to be a witness to the commission of the offence,
it shall be a defence to show to the satisfaction of the court that the inclusion in the publication of the matter in question was in the public interest on the ground that, to the extent that they operated to prevent that matter from being so included, the effect of the restrictions imposed by section 44(2) was to impose a substantial and unreasonable restriction on the reporting of matters connected with that offence.
(4) Subsection (5) applies where—
(a) paragraphs (a) and (b) of subsection (2) apply, and
(b) the contravention of section 44(2) relates to a person (“the protected person”) who is neither—
(i) the person mentioned in subsection (3)(b)(i), nor
(ii) a person within subsection (3)(b)(ii) who is under the age of 16.
(5) In such a case it shall be a defence, subject to subsection (6), to prove that written consent to the inclusion of the matter in question in the publication had been given—
(a) by an appropriate person, if at the time when the consent was given the protected person was under the age of 16, or
(b) by the protected person, if that person was aged 16 or 17 at that time,
and (where the consent was given by an appropriate person) that written notice had been previously given to that person drawing to his attention the need to consider the welfare of the protected person when deciding whether to give consent.
(6) The defence provided by subsection (5) is not available if—
(a) (where the consent was given by an appropriate person) it is proved that written or other notice withdrawing the consent—
(i) was given to the appropriate recipient by any other appropriate person or by the protected person, and
(ii) was so given in sufficient time to enable the inclusion in the publication of the matter in question to be prevented; or
(b) subsection (8) applies.
(7) Where—
(a) a person is charged with an offence under section 49, and
(b) the offence relates to the inclusion of any matter in a publication in contravention of a direction under section 46(2),
it shall be a defence, unless subsection (8) applies, to prove that the person in relation to whom the direction was given had given written consent to the inclusion of that matter in the publication.
(8) Written consent is not a defence if it is proved that any person interfered—
(a) with the peace or comfort of the person giving the consent, or
(b) (where the consent was given by an appropriate person) with the peace or comfort of either that person or the protected person,
with intent to obtain the consent.
(9) In this section—
“an appropriate person” means (subject to subsections (10) to (12))—
in England and Wales or Northern Ireland, a person who is a parent or guardian of the protected person, or
in Scotland, a person who has parental responsibilities (within the meaning of section 1(3) of the [1995 c. 36.] Children (Scotland) Act 1995) in relation to the protected person;
“guardian”, in relation to the protected person, means any person who is not a parent of the protected person but who has parental responsibility for the protected person within the meaning of—
(in England and Wales) the [1989 c. 41.] Children Act 1989, or
(in Northern Ireland) the [S.I. 1995/755 (N.I. 2.).] Children (Northern Ireland) Order 1995.
(10) Where the protected person is (within the meaning of the Children Act 1989) a child who is looked after by a local authority, “an appropriate person” means a person who is—
(a) a representative of that authority, or
(b) a parent or guardian of the protected person with whom the protected person is allowed to live.
(11) Where the protected person is (within the meaning of the [S.I. 1995/755 (N.I. 2.).] Children (Northern Ireland) Order 1995) a child who is looked after by an authority, “an appropriate person” means a person who is—
(a) an officer of that authority, or
(b) a parent or guardian of the protected person with whom the protected person is allowed to live.
(12) Where the protected person is (within the meaning of section 17(6) of the [1995 c. 36.] Children (Scotland) Act 1995) a child who is looked after by a local authority, “an appropriate person” means a person who is—
(a) a representative of that authority, or
(b) a person who has parental responsibilities (within the meaning of section 1(3) of that Act) in relation to the protected person and with whom the protected person is allowed to live.
(13) However, no person by whom the offence mentioned in section 44(2) is alleged to have been committed is, by virtue of subsections (9) to (12), an appropriate person for the purposes of this section.
(14) In this section “the appropriate recipient”, in relation to a notice under subsection (6)(a), means—
(a) the person to whom the notice giving consent was given,
(b) (if different) the person by whom the matter in question was published, or
(c) any other person exercising, on behalf of the person mentioned in paragraph (b), any responsibility in relation to the publication of that matter;
and for this purpose “person” includes a body of persons and a partnership.
(1) If an offence under section 49 committed by a body corporate is proved—
(a) to have been committed with the consent or connivance of, or
(b) to be attributable to any neglect on the part of,
an officer, the officer as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.
(2) In subsection (1) “officer” means a director, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity.
(3) If the affairs of a body corporate are managed by its members, “director” in subsection (2) means a member of that body.
(4) Where an offence under section 49 is committed by a Scottish partnership and is proved to have been committed with the consent or connivance of a partner, he as well as the partnership shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
(1) Where for the purposes of any provision of this Chapter it falls to a court to determine whether anything is (or, as the case may be, was) in the public interest, the court must have regard, in particular, to the matters referred to in subsection (2) (so far as relevant).
(2) Those matters are—
(a) the interest in each of the following—
(i) the open reporting of crime,
(ii) the open reporting of matters relating to human health or safety, and
(iii) the prevention and exposure of miscarriages of justice;
(b) the welfare of any person in relation to whom the relevant restrictions imposed by or under this Chapter apply or would apply (or, as the case may be, applied); and
(c) any views expressed—
(i) by an appropriate person on behalf of a person within paragraph (b) who is under the age of 16 (“the protected person”), or
(ii) by a person within that paragraph who has attained that age.
(3) In subsection (2) “an appropriate person”, in relation to the protected person, has the same meaning as it has for the purposes of section 50.
(1) At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence.
(2) Subsection (1) has effect subject to subsections (3) and (4).
(3) A person is not competent to give evidence in criminal proceedings if it appears to the court that he is not a person who is able to—
(a) understand questions put to him as a witness, and
(b) give answers to them which can be understood.
(4) A person charged in criminal proceedings is not competent to give evidence in the proceedings for the prosecution (whether he is the only person, or is one of two or more persons, charged in the proceedings).
(5) In subsection (4) the reference to a person charged in criminal proceedings does not include a person who is not, or is no longer, liable to be convicted of any offence in the proceedings (whether as a result of pleading guilty or for any other reason).
(1) Any question whether a witness in criminal proceedings is competent to give evidence in the proceedings, whether raised—
(a) by a party to the proceedings, or
(b) by the court of its own motion,
shall be determined by the court in accordance with this section.
(2) It is for the party calling the witness to satisfy the court that, on a balance of probabilities, the witness is competent to give evidence in the proceedings.
(3) In determining the question mentioned in subsection (1) the court shall treat the witness as having the benefit of any directions under section 19 which the court has given, or proposes to give, in relation to the witness.
(4) Any proceedings held for the determination of the question shall take place in the absence of the jury (if there is one).
(5) Expert evidence may be received on the question.
(6) Any questioning of the witness (where the court considers that necessary) shall be conducted by the court in the presence of the parties.
(1) Any question whether a witness in criminal proceedings may be sworn for the purpose of giving evidence on oath, whether raised—
(a) by a party to the proceedings, or
(b) by the court of its own motion,
shall be determined by the court in accordance with this section.
(2) The witness may not be sworn for that purpose unless—
(a) he has attained the age of 14, and
(b) he has a sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth which is involved in taking an oath.
(3) The witness shall, if he is able to give intelligible testimony, be presumed to have a sufficient appreciation of those matters if no evidence tending to show the contrary is adduced (by any party).
(4) If any such evidence is adduced, it is for the party seeking to have the witness sworn to satisfy the court that, on a balance of probabilities, the witness has attained the age of 14 and has a sufficient appreciation of the matters mentioned in subsection (2)(b).
(5) Any proceedings held for the determination of the question mentioned in subsection (1) shall take place in the absence of the jury (if there is one).
(6) Expert evidence may be received on the question.
(7) Any questioning of the witness (where the court considers that necessary) shall be conducted by the court in the presence of the parties.
(8) For the purposes of this section a person is able to give intelligible testimony if he is able to—
(a) understand questions put to him as a witness, and
(b) give answers to them which can be understood.
(1) Subsections (2) and (3) apply to a person (of any age) who—
(a) is competent to give evidence in criminal proceedings, but
(b) (by virtue of section 55(2)) is not permitted to be sworn for the purpose of giving evidence on oath in such proceedings.
(2) The evidence in criminal proceedings of a person to whom this subsection applies shall be given unsworn.
(3) A deposition of unsworn evidence given by a person to whom this subsection applies may be taken for the purposes of criminal proceedings as if that evidence had been given on oath.
(4) A court in criminal proceedings shall accordingly receive in evidence any evidence given unsworn in pursuance of subsection (2) or (3).
(5) Where a person (“the witness”) who is competent to give evidence in criminal proceedings gives evidence in such proceedings unsworn, no conviction, verdict or finding in those proceedings shall be taken to be unsafe for the purposes of any of sections 2(1), 13(1) and 16(1) of the [1968 c. 19.] Criminal Appeal Act 1968 (grounds for allowing appeals) by reason only that it appears to the Court of Appeal that the witness was a person falling within section 55(2) (and should accordingly have given his evidence on oath).
(1) This section applies where a person gives unsworn evidence in criminal proceedings in pursuance of section 56(2) or (3).
(2) If such a person wilfully gives false evidence in such circumstances that, had the evidence been given on oath, he would have been guilty of perjury, he shall be guilty of an offence and liable on summary conviction to—
(a) imprisonment for a term not exceeding 6 months, or
(b) a fine not exceeding £1,000,
or both.
(3) In relation to a person under the age of 14, subsection (2) shall have effect as if for the words following “on summary conviction” there were substituted “to a fine not exceeding £250”.
(1) Sections 34 and 36 to 38 of the [1994 c. 33.] Criminal Justice and Public Order Act 1994 (inferences from accused’s silence) shall be amended as follows.
(2) In section 34 (effect of accused’s failure to mention facts when questioned or charged), after subsection (2) there shall be inserted—
Youth Justice and Criminal Evidence Act 1999