There are various statutes which allow a court to make an order forbidding the identification of a witness in media coverage of the case, once court proceedings have begun. Examples of when this restriction on coverage in media reports is automatic are in youth court cases in which protection from media identification is bestowed on juvenile witnesses.
There are further circumstances in which anonymity protection is guaranteed for those assisting the police (a victim, a potential witness or an informant for example) before any court proceedings have begun i.e. while the case is being investigated by the police.
What is the Serious Organised Crime and Police Act 2005?
Sections 86 to 89 of the Serious Organised Crime and Police Act 2005 made it an offence to disclose at any time the new identities of informants who had assisted police investigations and as such had to be given new lives for their own protection. The Act was not specifically aimed at the media but, for obvious reasons, affords media organisations no special protection.
Information on the informants’ new identities includes the changed names and new addresses plus the disclosure of any other arrangements in police protection under the Act. It does not make any difference whether the new identity was given before or after the relevant court proceedings began, it is still an offence to disclose this information. The offence is punishable by up to two years in jail and reflects the potential risk to informants of violence or intimidation should the information reach involved parties.
Sections 86 to 89 set out only limited defences for anyone accused of disclosing the new identities of informants or information about the arrangements for their new lives. Nonetheless, if the protected person had agreed that the disclosure could be made and there was little chance that anyone’s safety would be in danger then there is no liability.
What did the Coroners and Justice Bill 2009 propose?
This bill proposed that a magistrate, in the event of a request from the police or specified public prosecutors, including the Director of Public Prosecutions, can make an ‘investigation anonymity order’ without holding a court hearing. This proposal would cover a person assisting or willing to assist the police or the Serious Organised Crime Agency during investigations into suspected murder or manslaughter.
The Bill goes into further specifications about in which cases, informants should be granted ‘investigation anonymity orders’. The death must have been caused by a gun or knife. Additionally, the crime suspect must have been, at the time of the offence, between 11 years old and 30 years and likely to have been, at the time of the offence, a member of a similarly aged group who in turn were likely to have been involved with the offence. It is clear that such specifications refer to the intimidation between rival street gangs and the broader culture of street gangs in young people. The Bill aims to avoid police frustration at not being able to secure information about suspected murder or manslaughter in these situations.
The proposal is not aimed directly at the media but its overall aim (that of keeping secret generally and indefinitely the identity of actual or potential informants) will of course have an effect on media reports of police investigations into street gang killings.
What happens when an informant is identified once an ‘investigation anonymity order’ has been made?
Under the proposed law, the Bill’s explanatory notes state that it would be a criminal offence, with a proposed penalty of a fine, or five years in prison or both, to disclose any information that might identify an actual or potential informant to others. The exception is that this disclosure may of course by made within internal communications inside the investigating or prosecuting agency or authority.
As stated above, the Coroners and Justice Bill 2009 was not aimed at media identification of informants yet if a journalist or other member of media organisation verbally identifies someone who is an informant in such a case, or willing to be one, then they would be guilty of the offence. The disclosure does not thus have to be published to risk punishment under the new laws
The defences available for journalists and reporters in this situation are limited to the following: a lack of knowledge or reason to suspect that such an ‘investigation anonymity order’ had been made in the first place or proof that the person informed of the identity was already aware that this was someone willing to be, or already an informant to the police.
Can the ‘investigation anonymity order’ be cancelled?
If there has been a material change of circumstances since the ‘investigation anonymity order’ was first issued then yes, it may be discharged. A magistrate may do this, if they are requested to do so by either a relevant investigating or prosecuting agency or, for instance, the Director of Public Prosecutions. The person protected by the ‘investigation anonymity order’ can also request that a magistrate cancel the order.
Has section 44 of the Youth Justice and Criminal Act 1999 on the identification of juveniles become law?
As the Coroners and Justice Bill 2009 was being discussed, no provision was made to bring into law and effect section 44 of the Youth Justice and Criminal Act 1999. This section proposes that media reports should be forbidden from identifying juveniles (anyone under the age of 18 years old) involved in police investigations into an alleged crime. This would include anyone who is allegedly the crime’s victim, a witness or its perpetrator.