Reporting restrictions
Section 78: Lifetime reporting restrictions in criminal proceedings for witnesses and victims under 18
579.Section 78 makes provision in respect of lifelong reporting restrictions (‘a reporting direction’) for victims and witnesses under the age of 18 involved in criminal proceedings or proceedings before a service court.
580.Subsection (2) inserts a new section 45A into the Youth Justice and Criminal Evidence Act 1999. Section 45A applies in any criminal proceedings in any court in England and Wales and any proceedings in any service court in the United Kingdom or elsewhere. It confers a power to make a reporting direction that is exercisable in respect of a witness or victim who was under 18 when those proceedings commenced. A reporting direction is a direction that no matter relating to a person may be included in a publication if it is likely to lead to members of the public to identify that person as being concerned in the proceedings. “Publication” is defined in section 63 of the Youth Justice and Criminal Evidence Act 1999 and includes on-line publication.
581.Under new section 45A, the court is able to make a reporting direction lasting for the lifetime of a victim or witness. It is able to do so if satisfied that the quality of the evidence given, or the level of co-operation given to any party to the proceedings in connection with the preparation of that party’s case, is likely to be diminished by reason of fear or distress at being identified as a person concerned in the proceedings.
582.In determining whether to make a reporting direction the court has to have regard to the welfare of the person, whether it would be in the interests of justice to make the reporting direction and the public interest in avoiding the imposition of a substantial and unreasonable restriction on the reporting of the proceedings.
583.Either at the same time as a reporting direction is made or subsequently, the court is able to make an excepting direction to dispense, to any extent specified, with the restrictions imposed. However, an excepting direction can only be made if the court is satisfied that it is necessary in the interest of justice to do so or if it is satisfied that the effect of the reporting direction is to impose a substantial and unreasonable restriction on the reporting of proceedings and it is in the public interest to remove or relax that restriction.
584.Subsection (3)(a) amends section 49 of the Youth Justice and Criminal Evidence Act 1999 to provide that breach of a direction under new section 45A would be a criminal offence under section 49. On summary conviction a person guilty of an offence under section 49 is currently liable to a fine not exceeding level 5 on the standard scale.
585.Subsection (4) amends section 50 of the Youth Justice and Criminal Evidence Act 1999 to provide that it is a defence to prove that written consent to the publication had been given by the witness or victim concerned. That defence does not apply to the extent that the person was aged under 18 at the time consent was given or the peace or comfort of the person giving consent had been interfered with.
586.Subsection (3)(b) inserts a new subsection (7) into section 49 of the Youth Justice and Criminal Evidence Act 1999 to introduce new Schedule 2A to that Act, which deals with the position of persons providing information society services in respect of contravening a direction under new section 45A. New Schedule 2A is inserted by Schedule 15 (introduced by section 80).
Section 79: Reporting restrictions in proceedings other than criminal proceedings
587.Section 79 amends section 39 of the Children and Young Persons Act 1933. The effect of subsection (2)(a) is to limit the application of section 39 to any proceedings other than criminal proceedings. This re-states the effect of paragraph 2 of Schedule 2 to the Youth Justice and Criminal Evidence Act 1999 which is repealed by subsection (11). Upon commencement of this provision the Government also intends to commence section 45 of, and relevant provisions in Schedule 2 to, the Youth Justice and Criminal Evidence Act 1999. Section 45 of the Youth Justice and Criminal Evidence Act 1999 will apply in criminal proceedings other than those in the Youth Court and on appeal from the Youth Court.
588.Section 39 of the Children and Young Persons Act 1933 is also amended to provide that a court may direct that particulars calculated to lead to the identification of a child or young person may not be included in a “publication”. Currently, section 39 applies only in respect of newspapers and sound and television broadcasts. Subsection (7) inserts a new subsection (3) into section 39 to provide a definition of a publication, which includes publication by on-line means. The definition is in substantially the same terms as that applicable to new section 45A of the Youth Justice and Criminal Evidence Act 1999, inserted by section 78 (see the definition in section 63 of that Act).
589.Subsection (9) inserts a new section 39A into the Children and Young Persons Act 1933 to introduce new Schedule 1A to that Act, which deals with the position of persons providing information society services in respect of contravening a direction under section 39. New Schedule 1A is inserted by Schedule 15 (introduced by section 80).
590.Subsection (10) amends section 57(3) of the Children and Young Persons Act 1963 to preserve the effect of section 39 of the Children and Young Persons Act 1933 as regards Scotland. This subsection provides that references to “publication” in section 39 have effect in Scotland as if they were references to a newspaper. Note that section 57(4) of the 1963 Act continues to provide that section 39 of the 1933 Act also applies to sound and television broadcasts.
591.Subsection (12) ensures that subsection (2)(a) (limiting the application of section 39 to proceedings other than criminal proceedings) does not affect the operation of section 39 in relation to criminal proceedings instituted before the day on which subsection (2)(a) comes into force.
592.Subsection (13) defines when proceedings and proceedings on appeal are “instituted” by reference to the Prosecution of Offences Act 1985 and the Criminal Appeal Act 1995.
Section 80 and Schedule 15: Reporting restrictions: providers of information society services
593.Schedule 15 addresses the position of providers of information society services in respect of the offences under section 39 of the Children and Young Persons Act 1933, as amended by section 79, and under section 49 of the Youth Justice and Criminal Evidence Act 1999, as amended by section 78.
594.Paragraph 1 of the Schedule inserts new Schedule 1A into the Children and Young Persons Act 1933.
595.Paragraph 1 of the new Schedule 1A extends liability to a service provider established in England and Wales (a “domestic service provider”) in respect of matter published in an EEA state other than the UK.
596.Sub-paragraph (2) of paragraph 1 makes it clear that section 39 of the Children and Young Persons Act 1933 applies to a “domestic service provider” who includes a matter in a publication in the course of providing information society services in a European Economic Area state that is not the United Kingdom.
597.Sub-paragraph (3) of paragraph 1 provides for proceedings in respect of offences under section 39 of the Children and Young Persons Act 1933 to be dealt with in any place in England and Wales as if it had been committed in that place.
598.Paragraph 2 restricts when proceedings may be instituted against non-UK service providers in the European Economic Area.
599.Sub-paragraph (1) of paragraph 2 applies paragraph 2 to a service provider established in a European Economic Area state other than the United Kingdom (a “non-UK service provider”).
600.Sub-paragraphs (2) to (4) of paragraph 2 set out the derogation conditions that must be satisfied for proceedings against a non-UK service provider to be instituted. These are where proceedings are necessary for the purposes of the pursuit of public policy, an information society service prejudices or presents a serious or grave risk of prejudice to the pursuit of public policy and is proportionate to the pursuit of public policy.
601.Paragraph 3 sets out exceptions for mere conduits.
602.Sub-paragraphs (1) to (3) of paragraph 3 set out when a service provider is not capable of being guilty of an offence under section 39 of the Children and Young Persons Act 1933. The circumstances are 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. In such circumstances the service provider is not capable of being guilty of an offence if it does not initiate the transmission, select the recipient of the transmission or select or modify the information contained in the transmission.
603.Sub-paragraph (4) of paragraph 3 sets out that if a service provider stores the information for longer than is reasonably necessary for the transmission it is capable of being guilty of an offence.
604.Paragraph 4 sets out exceptions for caching.
605.Sub-paragraph (1) of paragraph 4 sets out that paragraph 4 applies where an information society service consists of the transmission in a communication network of information provided by a recipient of the service.
606.Sub-paragraph (2) to (4) of paragraph 4 sets out the circumstances in which a service provider is not capable of being guilty of an offence under section 39 of the Children and Young Persons Act 1933 in respect of the automatic, intermediate and temporary storing of information. The circumstances are 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; and the service provider does not modify the information, complies with any conditions attached to having access to the information and expeditiously removes the information or disables access to it. The service provider should expeditiously remove the information where it 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.
607.Paragraph 5 sets out an exception for hosting.
608.Sub-paragraphs (1) to (4) of paragraph 5 set out the circumstances in which a service provider is not guilty of an offence under section 39 of the Children and Young Persons Act 1933 where in the course of providing an information society service it stores information provided by a recipient of the service. These circumstances apply where the recipient of the service is not acting under the authority or control of the service provider. The service provider must have no actual knowledge when the information was provided that it consisted of or included matter whose inclusion in a publication is prohibited by a direction under section 39 of the Children and Young Persons Act 1933. The service provider must, on obtaining knowledge that the matter is so prohibited, expeditiously remove the information or disable access to it.
609.For the purposes of Schedule 1A, paragraph 6 defines “publication”, “information society services”, “recipient”, “service provider”, and when a service provider is established in England and Wales or a European Economic Area state.
610.Paragraph 2 of Schedule 15 inserts new Schedule 2A into the Youth Justice and Criminal Evidence Act 1999.
611.Paragraph 1 of new Schedule 2A extends liability to a service provider established in England and Wales, Scotland or Northern Ireland (a “domestic service provider”) in respect of matter published in an EEA state other than the UK.
612.Sub-paragraph (2) of paragraph 1 applies section 49 of the Youth Justice and Criminal Evidence Act 1999, so far as it relates to a publication falling within section 49(1A)(a) of that Act, to a “domestic service provider” who includes a matter in a publication in the course of providing information society services in a European Economic Area state.
613.Sub-paragraph (3) of paragraph 1 provides for proceedings in respect of offences under section 49 of the Youth Justice and Criminal Evidence Act 1999 to be dealt with in any place in England and Wales, Scotland and Northern Ireland as if it had been committed in that place.
614.Sub-paragraphs (4) and (5) of paragraph 1 set out that section 49 of the Youth Justice and Criminal Evidence Act 1999, so far as it relates to a publication falling within section 49(1A)(b) of that Act, applies to a domestic service provider established in England and Wales who in the course of providing information society services includes a matter in a publication in a European Economic Area state other than the UK. Proceedings in respect of an offence under section 49 of the Youth Justice and Criminal Evidence Act 1999 will be dealt with in any place in England and Wales as if it had been committed in that place.
615.Paragraph 2 restricts when proceedings may be instituted against non-UK service providers in the European Economic Area.
616.Sub-paragraph (1) of paragraph 2 applies paragraph 2 to a service provider established in a European Economic Area state other than the United Kingdom (a “non-UK service provider”).
617.Sub-paragraphs (2) to (4) of paragraph 2 set out the derogation conditions that must be satisfied for proceedings against a non-UK service provider to be instituted in respect of a publication that includes matter in contravention of a direction under section 45A(2) of the Youth Justice and Criminal Evidence Act 1999. These are where proceedings are necessary for the purposes of the pursuit of public policy, an information society service prejudices or presents a serious or grave risk of prejudice to the pursuit of public policy and is proportionate to the pursuit of public policy.
618.Paragraph 3 sets out exceptions for mere conduits.
619.Sub-paragraphs (1) to (3) of paragraph 3 set out when a service provider is not capable of being guilty of an offence under section 49 of the Youth Justice and Criminal Evidence Act 1999 in respect of a publication that includes matter in contravention of a direction under section 45A(2) of that Act. The circumstances are 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. In such circumstances the service provider is not capable of being guilty of an offence if it does not initiate the transmission, select the recipient of the transmission or select or modify the information contained in the transmission.
620.Sub-paragraph (4) of paragraph 3 sets out that if a service provider stores the information for longer than is reasonably necessary for the transmission it is capable of being guilty of an offence.
621.Paragraph 4 sets out exceptions for caching.
622.Sub-paragraph (1) of paragraph 4 sets out that paragraph 4 applies where an information society service is the transmission in a communication network of information provided by a recipient of the service.
623.Sub-paragraphs (2) to (4) of paragraph 4 set out the circumstances in which a service provider is not capable of being guilty of an offence under section 49 of the Youth Justice and Criminal Evidence Act 1999, so far as it relates to a publication that includes matter in contravention of a direction under section 45A(2) of that Act, in respect of the automatic, intermediate and temporary storing of information. The circumstances are 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; and the service provider does not modify the information, complies with any conditions attached to having access to the information and expeditiously removes the information or disables access to it. The service provider should expeditiously remove the information where it 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.
624.Paragraph 5 sets out an exception for hosting.
625.Sub-paragraphs (1) to (4) of paragraph 5 set out the circumstances in which a service provider is not guilty of an offence under section 49 of the Youth Justice and Criminal Evidence Act 1999, so far as it relates to a matter in contravention of section 45A(2) of that Act, where in the course of providing an information society service it stores information provided by a recipient of the service. These circumstances apply where the recipient of the service is not acting under the authority or control of the service provider. The service provider must have no actual knowledge when the information was provided that it consisted of or included matter whose inclusion in a publication is prohibited by a direction under section 45A(2) of the Youth Justice and Criminal Evidence Act 1999. The service provider must, on obtaining knowledge that the matter is so prohibited, expeditiously remove the information or disable access to it.
626.For the purposes of new Schedule 2A, paragraph 6 defines “information society services”, “recipient”, “service provider”, and when a service provider is established in England and Wales, Scotland or Northern Ireland or a European Economic Area state. “Publication” is defined in section 63(1) of the Youth Justice and Criminal Evidence Act 1999 (for the purposes of Part 2 of that Act).
