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An overview of the reporting restrictions for victims and witnesses under the age of 18 in criminal proceedings, as outlined in the Youth Justice and Criminal Evidence Act 1999 and the Criminal Justice and Courts Act 2015. It covers sections 45A, 45, and 49 of the YJCE Act 1999, as well as transitional arrangements and provisions for information society services. the circumstances under which reporting restrictions apply, how they can be lifted or varied, and the consequences of breaching a reporting direction.
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UNDER-18s: YOUTH JUSTICE AND CRIMINAL EVIDENCE ACT 1999 AND CRIMINAL JUSTICE AND COURTS ACT 2015
From Youth Justice Policy Ministry of Justice
Issue date 23 March 2015 Updated 09 April 2015
Implementation date 13 April 2015
For further information richard.bishop1@justice.gsi.gov.uk, tel: 07580 701 046
Broad subject Criminal justice
Sub category Reporting restrictions applying to under-18s
This circular is addressed to
Lord Chief Justice, President of the Queen’s Bench Division, Master of the Rolls, President of the Family Division, Senior Presiding Judge for England and Wales, Chairman of the Judicial College, Lords Justices of Appeal, High Court Judges, Presiding Judges, Resident Judges, Crown Court Judges, District Judges (Magistrates’ Courts), Bench Chairmen, Director of Public Prosecutions, Director General of the National Crime Agency, Chief Officers of Police in England and Wales, Director General of HM Prison Service, Chief Executive of HM Courts and Tribunals Service, Chief Crown Prosecutors, Chief Executive of the Youth Justice Board for England and Wales, Chief Probation Officers, Director of Crime, Delivery Directors, Heads of Crime, Cluster Managers, Regional Support Units, Court Managers Crown Courts, Court Managers Magistrates’ Courts, Justices’ Clerks.
Copies are being sent to
Council of Circuit Judges, Magistrates’ Association, National Bench Chairmen’s Forum, Registrar of Criminal Appeals, Bar Council, The Law Society, Criminal Bar Association, Law Society, Justices’ Clerks’ Society, Victim Support, College of Policing, Association of Chief Police Officers, Association of Police and Crime Commissioners, Police Superintendents’ Association, Police Federation, Chairpersons of Police Authorities, Local Children’s Safeguarding Boards, Directors of Social Services, Chief Executives of Local Authorities.
REPORTING RESTRICTIONS APPLYING TO UNDER-18s: CHILDREN AND YOUNG PERSONS ACT 1933, YOUTH JUSTICE AND CRIMINAL EVIDENCE ACT 1999 AND CRIMINAL JUSTICE AND COURTS ACT 2015
Introduction
of providers of information society services^1 in respect of offences under section 39 of the CYPA 1933 and section 49 of the YJCE Act 1999.^2
Background
(^1) “Information society services” is defined in Article 2(a) of the E-Commerce Directive (which refers to Article 1(2) of the Technical Standards Directive 98/34/EC, as amended by Directive 98/48/EC, and is summarised in recital 17 to the E-Commerce Directive as covering “any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service”. This covers a wide range of economic activities that take place on online and the remuneration does not have to be by the user of the service e.g. social media and search engines are information society services. However, the use of email or equivalent electronic communications (e.g. by persons acting outside their trade, business or profession) is not an information society service (although it may be covered by the new and extended youth reporting restrictions referred to in this circular). Further guidance on what constitutes an “information society service” can be viewed in paragraphs 2.13 onwards of the Government publication: A Guide for Business to the Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/2013) [http://webarchive.nationalarchives.gov.uk/20121212135622/http://www.bis.gov.uk/files/file14635.pdf ]
(^2) Please note that the Electronics Commerce (EC Directive) Regulations 2002 (SI 2002/2013) already applied to section 49 of the CYPA 1933 as amended by Schedule 2 of the YJCE 1999. Therefore the new Schedule 1A of the CYPA 1933, which addresses the position of providers of information society services, applies only to section 39 of the CYPA 1933 because it has been amended by the CJ&C Act
which may be exercised by, for example, the Youth Court, adult magistrates’ courts or the Crown Court. Annex A summarises some of section 45A’s features and how it fits into the overall statutory reporting restrictions framework.
Making a reporting direction
a witness other than an accused in the proceedings (section 45A(3)(a)); and/or
a victim i.e. a person against whom the offence, which is the subject of the criminal proceedings, is alleged to have been committed (section 45A(3)(b)).
“…any speech, writing, relevant programme or other communication in whatever form, which is addressed to the public at large or any section of the public (and for this purpose every relevant programme shall be taken to be so addressed), but does not include an indictment or other document prepared for use in particular legal proceedings.”
The term “publication”, as well as applying to print and broadcast media, can apply to information published online including, for example, information posted on social media sites such as Facebook or Twitter.
the nature and alleged circumstances of the offence to which the proceedings relate;
the age of the victim or witness who is the subject of the reporting restriction application; the social and cultural background and ethnic origins of the victim or witness if they appear relevant to the court; the domestic, educational and employment circumstances of the victim or witness if they appear relevant to the court; any religious beliefs or political opinions of the victim or witness if they appear relevant to the court; any behaviour towards the victim or witness the subject of the reporting restriction application on the part of an accused, members of the family or associates of an accused, or any other person who is likely to be an accused or witness in the proceedings; any views expressed by the victim or witness the subject of the reporting restriction application and, where they are under the age of 16, by an “appropriate person” so long as s/he is not the accused. An appropriate person may be a parent or guardian (i.e. have parental responsibility for the victim or witness). If the victim or witness is under the age of 16 and is looked after by a local authority the appropriate person may be a representative of the local authority or a parent or guardian of the victim or witness with whom they are allowed to live.
Lifting or varying a reporting direction
the court is satisfied that it is necessary in the interests of justice to make the excepting direction
or
the court is satisfied that the effect of the reporting direction is to impose a substantial and unreasonable restriction on the reporting of the proceedings and it is in the public interest to remove or relax the restriction.
written consent to the inclusion of the matter in contravention of the reporting direction (section 50(6A) YJCE Act 1999). Such written consent is not a defence if given by the victim or witness when they are under 18 years of age or where it is proved that any person interfered with the peace or comfort of the victim or witness giving the consent or the appropriate person with the intent of obtaining the consent (section 50(6B) and (8) YJCE Act 1999). See paragraph 12 in respect of who may be an “appropriate person”.
Criminal proceedings other than in the Youth Court
Making a reporting restriction under section 45 of the YJCE 1999 (criminal proceedings other than in the Youth Court)
his or her name; his or her address; the identity of any school or other educational establishment attended by him or her; the identity of any place of work; and any still or moving picture of him or her (section 45(8) YJCE Act 1999).
“…any speech, writing, relevant programme or other communication in whatever form, which is addressed to the public at large or any section
of the public (and for this purpose every relevant programme shall be taken to be so addressed), but does not include an indictment or other document prepared for use in particular legal proceedings.”
The term “publication”, as well as applying to print and broadcast media, can also apply to information published online including, for example, information posted on social media.
Lifting or varying a reporting restriction under section 45
Breaches of the reporting restriction and defences to alleged breach
(^4) Provisions in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 increased the power of magistrates’ courts so that they will be able to impose unlimited fines for the most serious offences committed on or after 12 March 2015 (after a reporting restriction order under section 45 of the YJCE Act 1999 has been made). Courts will continue to set fines according to the seriousness of the offence and the means of the offender.
domestic law (in this case reporting restrictions applying to under-18s) by providers of information society services^5.
extending liability for breach of the above reporting restrictions to a service provider established in England and Wales (and in Scotland and Northern Ireland when dealing with a section 49 YJCE 1999 offence) in respect of a matter published in a European Economic Area state other than the UK and permitting breach proceedings to be dealt with in England and Wales (paragraph 1, Schedule 1A CYPA 1933 and Schedule 2A YJCE Act 1999);
proceedings cannot be taken against a non-UK service provider in a European Economic Area state in respect of anything done in the course of providing information society services unless certain conditions are satisfied (paragraph 2, Schedule 1A CYPA 1933 and Schedule 2A YJCE Act 1999);
a service provider (“conduit”) is not guilty of an offence where the information society service provided consists of the provision of access to a communication network or the transmission in a communication network of information provided by a recipient of the service; and
(^5) “Information society services” is defined in Article 2(a) of the E-Commerce Directive (which refers to Article 1(2) of the Technical Standards Directive 98/34/EC, as amended by Directive 98/48/EC, and is summarised in recital 17 to the E-Commerce Directive as covering “any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service”. This covers a wide range of economic activities that take place on online and the remuneration does not have to be by the user of the service e.g. social media and search engines are information society services. However, the use of email or equivalent electronic communications (e.g. by persons acting outside their trade, business or profession) is not an information society service (although it may be covered by the new and extended youth reporting restrictions referred to in this circular). Further guidance on what constitutes an “information society service” can be viewed in paragraphs 2.13 onwards of the Government publication: A Guide for Business to the Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/2013) [http://webarchive.nationalarchives.gov.uk/20121212135622/http://www.bis.gov.uk/files/file14635.pdf ] (^6) Please note that the Electronics Commerce (EC Directive) Regulations 2002 (SI 2002/2013) already applied to section 49 of the CYPA 1933 as amended by Schedule 2 of the YJCE 1999. Therefore the new Schedule 1A of the CYPA 1933, which addresses the position of providers of information society services, applies only to section 39 of the CYPA 1933 because it has been amended by the CJ&C Act
if the service provider does not initiate the transmission, select the recipient of the transmission or select or modify the information contained in the transmission.
however it may be guilty of an offence if it stores the information for longer than is reasonably necessary for the transmission (paragraph 3 of Schedule 1A CYPA 1933 and Schedule 2A YJCE Act 1999).
a service provider is not guilty of an offence in respect of the automatic, intermediate and temporary storing of information (“caching”) where the storage of information is solely for the purpose of making more efficient the onward transmission of information to other recipients of the service at their request; on condition that-
the service provider does not modify the information;
he complies with any conditions attached to having access to the information; and
he acts expeditiously to remove the information where he obtains actual knowledge that the information at the initial source of the transmission has been removed from the network, access to the information has been disabled, or a court or administrative authority has ordered its removal or disablement (paragraph 4 of Schedule 1A CYPA 1933 and Schedule 2A YJCE Act 1999).^7
the service provider is not guilty of an offence in the course of providing information society services by storing the information provided by the recipient of the service where:
the recipient of the service is not acting under the authority or control of the service provider;
the service provider has no actual knowledge when the information was provided that it consisted of or included matter whose inclusion in a publication is prohibited by a the reporting restrictions referred to above;
the service provider on obtaining knowledge that the matter is prohibited, expeditiously removes the information or disable access to it (paragraph 5 of Schedule 1A CYPA 1933 and Schedule 2A YJCE Act
(^7) There are other conditions specified in the regulations but have not been included in this Circular in the interests of brevity.
CYPA 1933. However where a reporting restriction order has been made under the amended section 39 on or after the date of commencement (13 April 2015), information subsequently published or re-published online may be in breach of the order.
Criminal proceedings that commence on or after the date of commencement
Examples
Children who turn 18 years of age during proceedings
Amendments to the Criminal Procedure Rules
Annex A: overview of statutory reporting restrictions as of 13 April 2015
Type of court proceedings
Whom it applies to
Does it apply to online content?
Automatic or by court order (discretion)?
Can it be lifted?
Can it be varied?
Duration of the reporting restriction if not lifted.
Notes.
Section 39 CYPA 1933
Victims, witnesses & defendants under the age of 18 when proceedings commence.
Yes. Court order (discretion)
Yes. Yes. Until the age of
Youth Court & proceedings on appeal from it.
Victims, witnesses & defendants under the age of 18 when proceedings commence.
Yes. Automatic. Yes. Yes. Until the age of
Scope of possible restriction has been expanded to include online content.
Section 45 YJCE 1999
Criminal proceedings in any court other than the Youth Court.
Victims, witnesses & defendants under the age of 18 when proceedings
Yes. Court order (discretion)
Yes. Yes. Until the age of
Replaces section 39 of the CYPA 1933 in respect of criminal proceedings
Type of court proceedings
Whom it applies to
Does it apply to online content?
Automatic or by court order (discretion)?
Can it be lifted?
Can it be varied?
Duration of the reporting restriction if not lifted.
Notes.
commence. other than in the Youth Court. Section 45A YJCE 1999
Criminal proceedings in any court including the Youth Court.
Victims & witnesses under the age of 18 when proceedings commence.
Yes. Court order (discretion)
Yes. Yes. Lifetime of the individual subject of the order
New provision for victims & witnesses under the age of 18; operates in addition to other reporting restrictions’ powers Section 46 YJCE 1999
Criminal proceedings in any court.
Adult (minimum of 18years old) witnesses.
Yes. Court order (discretion)
Yes. Yes. Lifetime.
