Pembrokeshire Herald, Re (leave to appeal)

Factual and Procedural Background

In 2019, the Plaintiff, a primary school teacher at Company A in The City, was charged with 30 counts of sexual assault involving 11 female pupils aged 8 or 9, whom he had taught between 2012 and 2018. The Plaintiff denied all allegations. The trial was held before Judge Richards and a jury at Crown Court in The City from April 12 to May 4, 2021. The prosecution's case relied on video-recorded interviews with the complainants. The Plaintiff identified several individuals expected to support his defence, who provided witness statements but were not called by the prosecution. The Plaintiff called these witnesses, and on May 4, 2021, the jury acquitted the Plaintiff on all counts.

The local newspaper, Company B, reported the trial but was prohibited from identifying the complainants due to statutory anonymity protections. The newspaper could name the Plaintiff but could not identify the defence witnesses due to a reporting restriction order (RRO) made by Judge Richards during the trial, prohibiting publication of any material likely to identify these witnesses. The Plaintiff applied for the RRO to protect his witnesses, which was opposed by Company B and another media outlet. After acquittal, Company B sought to revoke or vary the RRO to allow reporting of defence witnesses' evidence without naming or picturing them; this application was refused. Company B now seeks leave to appeal both the original RRO and the refusal to revoke or vary it.

Legal Issues Presented

1. Whether the reporting restriction order (RRO) made under section 46 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA) was lawful and necessary to protect the quality of evidence and cooperation of defence witnesses.
2. Whether the trial judge erred in refusing to revoke or vary the RRO after the Plaintiff's acquittal, particularly in relation to allowing reporting of the defence witnesses' evidence without identifying them.
3. Whether the Court of Appeal has jurisdiction to entertain an appeal against the refusal to revoke or vary the RRO under section 159 of the Criminal Justice Act 1988.
4. Whether an extension of time should be granted for appealing the original RRO.
5. Whether judicial review is an appropriate remedy for challenging the refusal to vary the RRO.

Arguments of the Parties

Appellant's Arguments (Company B)

• The RRO was exceptional and should only be used as a last resort after all lesser measures are exhausted.
• The evidence supporting the RRO was insufficient to meet the statutory threshold under section 46 YJCEA.
• The RRO was not necessary to improve the quality of the witnesses' evidence or their cooperation, as the witnesses had already cooperated and no clear explanation was provided why less restrictive measures would not suffice.
• The trial judge failed to properly balance the witnesses' concerns against freedom of expression and public interest, lacking the required intense focus on the rights engaged.
• Following acquittal, the RRO imposed an unreasonable restriction on reporting, preventing the public from being properly informed about the defence case and the basis for the acquittal.
• The refusal to grant an excepting direction permitting reporting of the defence witnesses' evidence without identification was an error.
• The appeal against the April Order should be allowed or, alternatively, the May Order should be varied to permit limited reporting.
• The delay in appealing the April Order should be excused in the interests of justice due to the importance of the issues involved.

Respondent's Arguments (Plaintiff and Crown)

• The trial judge correctly identified and applied the legal principles governing reporting restriction orders under section 46 YJCEA.
• The judge was entitled to make the April Order to protect the witnesses and ensure a fair trial.
• The refusal to revoke or vary the RRO on May 21, 2021, was lawful and appropriate.
• The Court of Appeal lacks jurisdiction to entertain an appeal against the refusal to revoke or vary the RRO under section 159 of the Criminal Justice Act 1988.
• The delay in appealing the April Order was unjustified and prejudicial to the defence and witnesses.
• There is no inherent jurisdiction for the Court of Appeal to grant declarations beyond those provided by statute.
• Judicial review is the proper procedural route to challenge the refusal to revoke or vary the RRO, but permission should be refused in this case.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by reviewing the statutory framework under section 46 of the Youth Justice and Criminal Evidence Act 1999, as summarized in ITN Ltd v R, emphasizing that reporting restriction orders (RROs) are exceptional measures to protect witnesses when their evidence or cooperation is likely to be diminished by fear or distress from identification. The Court noted that the trial judge had properly considered the statutory criteria, including the nature of the offences, the age and circumstances of the witnesses, and the impact of media reporting and social media comments on their willingness to testify.

The Court found that the trial judge was entitled to conclude that the RRO was necessary to secure a fair trial by protecting the witnesses and ensuring their cooperation. The judge acted on detailed evidence, including witness statements describing fears and anxieties stemming from media coverage and public comments, which affected the witnesses’ willingness to attend court.

Regarding the Herald’s application to revoke or vary the RRO after the Plaintiff’s acquittal, the Court held that the statutory provisions prohibit making an excepting direction solely because of the acquittal. The judge was not persuaded that circumstances had changed sufficiently to justify revocation or variation, especially since the witnesses had given evidence on the basis of anonymity. The Court agreed with the trial judge that allowing reporting of the witnesses’ evidence, even without names or images, would likely identify them in the small local community.

The Court addressed the Herald’s delay in appealing the April Order, emphasizing the short statutory time limit for such appeals and the importance of resolving reporting restrictions promptly. The Herald’s delay was inadequately explained and prejudicial to the witnesses and defence. The Court refused to extend time for appealing the April Order.

Jurisdictionally, the Court clarified that under section 159 of the Criminal Justice Act 1988, there is no right of appeal against refusal to revoke or vary an RRO or to make an excepting direction. Such decisions may only be challenged by judicial review, for which the Court refused permission in this case on grounds including abuse of process, lack of change in circumstances, and the absence of a proper basis to vary the order.

The Court rejected the Herald’s argument that the trial judge had substituted editorial judgment for that of the newspaper’s editor, affirming that the judge took a judicial decision balancing the rights involved with the necessary intense focus and was better placed to evaluate the evidence and competing interests.

Holding and Implications

The Court REFUSED LEAVE TO APPEAL against both the original reporting restriction order made on April 19, 2021, and the refusal to revoke or vary that order on May 21, 2021. The Court also refused an extension of time for appealing the April Order and refused permission for judicial review of the May Order.

The direct effect of this decision is that the reporting restriction order protecting the anonymity of the defence witnesses remains in place. The media must continue to refrain from publishing material likely to identify these witnesses, including their evidence, names, or images. No new legal precedent was established; rather, the Court affirmed the correct application of established statutory principles and the trial judge’s discretion in balancing open justice with witness protection in sensitive cases.