Clarity provided to the law of reporting restrictions in criminal proceedings

On 6 October 2025 new rules were introduced solidifying the existing obligations on lawyers/applicants when submitting a reporting restriction application to ensure that the media are informed of such applications prior to being granted. This article summarises how the law now stands.

In furtherance of the open justice principle the general rule is that justice should be ‘seen and done’ in public and thus permit the attendance and reporting by the media of criminal cases in all courts. For any part of criminal proceedings not to be heard in public there is a high benchmark test of one of ‘necessity’.

Automatic restrictions on reporting

Under the Children and Young Persons Act 1933 the Court has a discretion to exclude the public but not members of the media during the testimony of witnesses aged under 18 in relation to offences involving allegations of “decency and morality”. The media are prohibited from publishing anything that is likely to identify a person under 18 (including the defendant and witnesses). In exceptional circumstances these automatic restrictions can be lifted where it is appropriate to do so to avoid injustice to the child; to search for a missing, convicted or alleged offender (where the offence is punishable with a prison sentence of more than 14 years for a person over 21) and finally where a young person has been convicted of an offence and it is in the public interest to name them.

Further provisions apply in cases where evidence is given by a child or a vulnerable adult witness in cases involving sexual offences or where a witness may be intimidated. In those cases, again members of the public can be excluded but not the media – save for in exceptional cases where one nominated representative of the media must be allowed to remain. The anonymity rule can be waived by the complainant (if they are over 16). Two further exceptions are where the complainant has been convicted in proceedings following on from a sexual offence allegation (for example where convicted of perjury) and where the court may lift the restriction to encourage defence witnesses to come forward. In both instances the media are prevented from reporting anything that could identify the complainants (in sexual offence allegations together with those involving modern slavery offences and female genital mutilation).

In prosecutions against an adult, there is no provision for an automatic restriction on reporting a defendant’s name.

Under the Contempt of Court Act 1981 (CCA 1981) it is a contempt of court to publish anything that creates a substantial risk of the course of justice being seriously prejudiced (or impeded) on a strict liability basis. Thus ignorance of any of the reporting restrictions in place (or the law) is no defence if contempt has occurred. There are a number of statutory defences under the CCA 1981 contained in sections 3, 4 and 5.

Discretionary reporting restrictions

Before considering the imposition of a discretionary reporting restriction the court must check that no automatic provision applies.

The most common application for a discretionary reporting restriction is where an application is made to the court to order the postponement of publication of the proceedings (or any part thereof) where it is necessary to avoid a substantial risk of prejudice to the administration of justice in either those proceedings or pending ones. Guiding principles to assist with the application of this provision were provided in R v Sarker and BBC [2018] EWCA Crim 1341 namely;

Would reporting give rise to a substantial risk of prejudice to the administration of justice in the relevant proceedings? If not, no order should be made.
Is such an order necessary? It will only become necessary if it eliminates the risk and that such a risk could not be satisfactorily overcome by a lesser restriction.
Where there is no other way of eliminating the perceived risk, is the degree of risk tolerable as being ‘the lesser of two evils’; balancing the competing public interests in a fair trial and open justice.

Where such an order is made (under section 4(2) CCA 1981) a copy of the same order must be provided to the media (and any other person known to have an interest in reporting the proceedings).

The new provisions

The Criminal Procedure Rules have been updated to clarify the existing responsibility on the applicant (for the reporting restriction) to explicitly notify the media of any application/ruling under these provisions. Previously the media had been recognised as interested parties, but on some occasions they had not been notified of applications and rulings for discretionary reporting restrictions. The new rules impose a requirement (clarifying the existing obligation) on the applicant to ensure that the media has been made aware of the application for discretionary reporting restrictions.

The changes came into force on 6 October 2026 and have been welcomed by the media to assist with clarity going forward. Pia Sarma, Chair of the Media Lawyers Association (a group comprising in-house media lawyers at newspapers and other publishers) said:-

“The MLA welcomes the change to the rules. Journalists act as the eyes and ears of the public and perform a role in keeping justice open. If they are not told that reporting restrictions might be put in place they don’t have the opportunity to challenge them and cannot perform their crucial role while court reporting.”