"Cannot be named for legal reasons"

[hc4361]

To whom exactly does this phrase apply?

I understand the circumstances in which gagging orders apply but who can be gagged?

Is there any legislation about this? Surely UK court gagging orders can't be enforced overseas.

If I knew without a doubt the identity of a person subject to a gagging order but was not a witness - for example, I saw my neighbour arrested and her husband told me what she'd been charged with - would a gagging order apply to me if I was not specifically ordered to keep quiet by a court?

[jno]

as far as I know it applies to everyone; it's more a question of how widely it can be policed. In the internet age it's virtually impossible to prevent names being named. So in practice it just applies to media organisations

[jackthehat]

I think it is 'publishing' the name which causes the offence.

At that point, the organ in which the name is published *and* the publisher; editor, journalist, etc. are committing the offence.

[jno]

I suspect legally speaking if you tell a friend in the pub, that constitutes publishing, as it would also do in a libel case. However, a proper lawyer might know better.

[hc4361]

Ideally I'd like a link to an official explanation.

I have my own forum which is by invitation only and so is private. Would a gagging order apply to that or is the content not considered 'published'?

[sandyRoe]

Even if only a handful of people could read it, it would still have been published.

[237SJ]

I presume a gagging order would be for those that can be prosecuted for libel. Telling someone in the pub wouldn`t be libel. Libel is (broadly speaking) when something is printed or broadcast to a wider audience. From that I guess the gagging order would apply to the media;

[SeaJayPea]

As I understand it, gagging orders and 'cannot be named for legal reasons' aren't necessarily the same thing.

Often this phrase applies when a defendant or witness is under age. To name somebody under these circumstances would render the perpetrator liable to prosecution for Contempt of Court.

Equally, in the 'grooming' case in Rochdale a few months ago, one of the defendants in that case couldn't be named. Indeed there was some chat on here about it. It turned out that he was also in court for other offences and had he been identified early that could have influenced the other jury. (Juries are not normally told a defendant's history, the judge bases sentencing on that). Again, anybody who'd published would have been liable to Contempt charges.

Sometimes you see that reporting restrictions have been lifted. Under those circumstances, the media can name them.

[hc4361]

Thanks, SeaJay - but who cannot name them for legal reasons? Just the media; witnesses, court officials, family members; the general public?

[New Judge]

The most usual reason for the phrase being used in the press is when legal proceedings involve young people under the age of 18. Magistrates and judges are usually obliged (unless there is good reason not to do so) to issue an order under Section 39 of the Children and Young Persons Act, 1933. Specifically this says:

(a) No newspaper report of the proceedings shall reveal the name, address or school, or include any particulars calculated to lead to the identification, of any child or young person concerned in the proceedings, either as being the person in respect of whom the proceedings are taken, or as being a witness therein.

(b) No picture shall be published in any newspaper as being or including a picture of any child or young person so concerned in the proceedings as aforesaid;

It is not a "gagging order" and does not prevent a member of the public who may get to hear of the proceedings either by being in court (although Youth Courts are closed to the public) or by any other means from telling somebody else what they know. It only applies to the media and prevents them publishing details of youngsters. Hence you often hear "...a sixteen year old who cannot be named for legal reasons".

[SeaJayPea]

I think it's everybody. But in fact, as 237SJ implies, the only people likely to be prosecuted would be the media. If you put something on t'internet identifying somebody in these circumstances then yes, you could be thought of as being part of the media. Whether they'd do it in the circumstances you describe, however, is another matter.

In the Ryan Giggs case, for example, if memory serves me correctly, before the restriction was lifted the moderators on here removed a couple of posts that named him, for fear of prosecution.

[hc4361]

Thanks, New Judge. I fully understand why there are reporting restrictions.

To put it baldly, could I and / or the Ab Editor be held in contempt for naming a person who is subject to the order on this site?

[New Judge]

I'm unsure because, as you can see from the wording of the Act, it specifically (and only) mentions newspapers. However, I think it now also applies to other media, but do not know without searching what legislation covers it. In courts it is specifically a "Section 39" order that is made (to warn any press hacks who may be present) but I believe it has been held that even if a newspaper did not have a reporter in court they must not publish details of young people and must adopt the principle of "if in doubt, leave it out".

Quite how a court would approach the matter if you did do as you suggest on AB I'm really not sure.

[hc4361]

It is all very complicated. Thanks for all replies.

[Eve]

Orders can also be specific to the individual case as well, specific names or circumstances. As said above, it's more for the media to prevent publication.

Some orders mean that names or other details cannot be publicly viewable, for example, not put on court lists which are viewable in the Courts (being a public area) where other people may see or if copies of Judgments/Reasons are able to be requested by peoeple who were not involved in the case.

For example, in some cases people who are accused of, for example inappropriate conduct of a sexual nature at work (viewing child pornography, sexual harassment etc...) could apply for such an Order in a Tribunal case.