Anonymity of witnesses and reporting restrictions
Introduction
1. Coroners can grant anonymity and impose reporting restrictions to prevent the dissemination of certain information from an inquest. However, coroners’ powers are limited in law and can only be exercised in a way that balances the need for the restriction against the importance of open justice[1].
2. Applications for anonymity or reporting restrictions should generally be raised in advance of the substantive inquest at a pre-inquest review hearing (PIR) and each application must be judged on its own merits.
What do we mean by anonymity and reporting restrictions?
3. The measures of granting anonymity and imposing reporting restrictions are often confused. A grant of anonymity means that no one who attends court (save in some cases the Interested Persons (IPs)) will be aware of the identity of the witness and their true name will never be mentioned in a public hearing. In contrast, the imposition of a reporting restrictions order is not a grant of anonymity to a witness, rather it is a restriction on the press (or anyone else) publicising the person’s identity outside the courtroom (or other matters that might lead to the jigsaw identification of the person). However the person’s identity will have been revealed in open court and will be already known to those who are now being injuncted from revealing it to others.
Anonymity applications
4. As part of the inherent power to control their own proceedings, a coroner may make an order anonymising witnesses or other persons within an inquest. There is no inconsistency between that power and requirements for inquests to be held in public.[2] Courts give effect to and balance relevant rights under the European Convention on Human Rights (ECHR) by exercising this power.
5. An anonymity application will generally request that:
- the name and identifying details of the witness be withheld in both disclosure and evidence within the inquest and a pseudonym be used;
- when the witness is giving evidence, no question may be asked which (by either the question or answer) might lead to their identification;
- when giving evidence, the person be screened from public view (but not from the coroner, any jury, and lawyers)[3];
- when attending court to give evidence, the witness be permitted to enter and exit the court by an appropriate, non-public route; and
- supportive reporting restrictions be ordered under section 11 of the Contempt of Court Act 1981, prohibiting publication of the witness’ name or any reporting which would infringe the protective measures.
6. The practical steps for a coroner to take when determining an anonymity application are to:
- ensure all IPs and the media[4] have been notified of the application and hearing in advance;
- ensure all IPs and the media have been provided with disclosure of the relevant application, any legal submissions and relevant evidence;[5]
- consider all the evidence on anonymity, including hearing evidence where appropriate;
- hear representations from all IPs, and the media;
- weigh up the counter-arguments, make a decision and give reasons;
- consider special measures, where appropriate.
7. Those seeking the anonymity order should provide evidence to show why it is needed (for example a witness statement might give evidence of a threat or of a risk assessment). That evidence may be tested, through oral examination, if necessary. The coroner should ensure there has been disclosure of the relevant evidence to the IPs and to any members of the press who wish to make representations in advance of the hearing.[6] If the material, such as a risk assessment, cannot safely be shared the coroner should at least provide a gist of the material, in so far as this does not defeat the purpose of the application.
8. Even where all involved support the anonymity application it is still for the coroner to be satisfied one of the relevant tests is met and an objective reason for granting anonymity has been established.
9. It is far better, if it can be achieved, that discussions about anonymity take place in open court. In such cases it is prudent to give a warning to participants that they should not cite any information that might reveal the person’s identity and so defeat the purpose of the application.
Tests to be applied
10. In deciding whether to make an anonymity order the common law test expounded by the House of Lords in In re Officer L (external link) [7] should be applied, making an ‘excursion’ if appropriate into the territory of Article 2 of the ECHR (the right to life).
11. A helpful route map (PDF) setting out how a coroner might approach an anonymity application was devised by Sir Peter Thornton KC when hearing the Birmingham Bombing 1974 inquests in 2019.
12. There are three tests that a coroner may need to consider:
a. Article 2 protection – where there is a real and immediate[8] risk to life of the witness the coroner has a positive duty to protect the witness;
b. Article 8 protection – where the right to respect for private and family life is engaged;[9]
c. At common law – whether the procedure is fair bearing in mind:
i. the subjective fear of the witness;
ii. the degree to which those fears are objectively justified; and
iii. the effect of anonymity on the witnesses and the inquiry itself.
13. The common law test is therefore broader than merely Article 2 considerations and is not limited to ameliorating risks to life.
14. If the refusal of the orders would create or materially increase a risk to the life of the person, such that the risk would be “real and immediate”, then the state in the person of the coroner would owe a positive duty under Article 2 to protect the witness by reasonable means. In those circumstances, as it was put in the Officer L case, the coroner “would ordinarily have little difficulty in determining that it would be reasonable in all the circumstances to give the witness a degree of anonymity”. The threshold of “real and immediate risk” derives from the decision of the ECtHR in Osman v UK (external link) [10]. A risk is “real” if it is substantial and significant, rather than remote. It is “immediate” if it is present and continuing.[11]
15. If the refusal of the orders would not result in the person being exposed to a real and immediate risk of death, then the coroner should “decide the matter as one governed by common law principles”, balancing the factors for and against the orders sought. It is relevant for the court to consider the subjective fears of the person concerned, whatever their degree of objective justification.[12] Risks of harm falling short of real and immediate risk of death (or of serious harm such as might engage Article 3 rights) may be relevant to the balancing exercise.[13]
16. In determining the application, the coroner must carry out a balancing exercise and consider all competing factors for and against anonymity. The coroner must consider (i) the subjective fears of the applicant witness, and (ii) objective reasons for or against anonymity.[14]
17. Subjective factors which may be considered include (amongst others):
- fears for life or harm to self and/or family (even if not well-founded); fears for safety and well-being (cf. irrational fear is no basis for anonymity, nor are vague or unspecific threats);
- seriousness of the fear and its impact upon the witness;
- reason for the fear;
- likely effect if anonymity is granted in removing/reducing that fear;
- the effect on the witness of giving evidence with or without special measures (including anonymity);
- effect on the public’s perception of the impartiality of the inquiry if anonymity is granted;
- likely effect on the inquiry’s ability to arrive at the truth, if it refuses or grants the application for anonymity in whole or in part.
18. Objective factors which may be considered include (amongst others):
- whether subjective fear is objectively justified;
- whether objective reason for anonymity is established;
- the weight of the subjective fear;
- any previous incidents of relevance;
- external evidence re harm and safety;
- the views of others in a similar position (e.g. siblings, relatives);
- the evidence of the witness in context and the role of the witness in the wider case;
- the evidence of other connected witnesses.
19. When seeking to strike the right balance under the common law test, the coroner may consider all the consequences of granting and of refusing the orders sought. For example, in an application for anonymity by a police officer who does specialist work, a relevant factor may be that identification of the officer would prevent that person continuing in their current role and would deprive the force of a valuable resource.[15]
20. The coroner should also bear in mind that courts have recognised that giving names and personalities to witnesses is an important aspect of openness in the justice system.[16]
21. Where a witness seeks to justify anonymity by reference to his/her rights to private and family life under Article 8 of the ECHR, the court usually has to perform a balancing exercise which weighs those rights against the free speech rights of media organisations under Article 10.[17] This balancing exercise is “highly fact-specific” and “must take into account the evaluation of the purpose of the principle of open justice as applied to the facts of the case and the potential value of the information in question in advancing that purpose, as against the harm the disclosure might cause the maintenance of an effective judicial process or to the legitimate interests of others”.[18]
22. Whilst in general terms the open justice principle applies with full force to inquests, coroners should note that some of the considerations which apply to applications for special measures in criminal cases do not apply to inquests (e.g. the point that the defendant has a right to confront his accuser, including by investigating the accuser’s background). So when considering the question of fairness, regard should be had to the fact that in inquisitorial proceedings it is generally easier to justify granting anonymity than it is in a criminal trial.[19]
23. In the end the coroner must consider and weigh all factors in the light of the countervailing principles and rights (including Articles 2, 8 and 10 ECHR)[20] in the context of the fundamental principle of open justice,[21] deciding whether there is a need for anonymity on an objective basis. The coroner should bear in mind that any exception to the open justice principle ought to be kept to a minimum.
24. In most cases where an application for anonymity is made, it will be necessary to provide a short written ruling explaining the decision. Coroners may also find it useful to refer to paragraphs 29-58 of the ruling (PDF) of HHJ Lucraft KC considering anonymity applications made during the Fishmongers’ Hall terror attacks inquests.[22]
Reporting restrictions orders
25. A coroner’s power to issue reporting restrictions is rather limited. There is a discretionary statutory power available in respect of child witnesses under s.39(1) Children and Young Persons Act 1933 (external link) (CYPA), but there is no common law power of a coroner to restrict reporting of matters that have been stated in open court.[23]
26. A person who has already been granted anonymity in proceedings can also be granted reporting restrictions to ensure that anonymity is preserved under s.11 Contempt of Court Act 1981 (external link) (CCA).
27. In rare circumstances someone is neither a witness nor a party to proceedings may have been granted anonymity on the ground of unjustifiable interference with a reasonable expectation of privacy, and they may also apply, exceptionally, and on the basis of necessity (‘an exception of narrow scope’), for a reporting restriction order under s.11 CCA: see R (Marandi) v Westminster Magistrates’ Court (external link) [2023] EWHC 587 (Admin).
A child who is a witness
28. The coroner has a discretionary power under s.39(1) CYPA (external link) to restrict media reporting of any particulars leading to the identification of a child or a young person who is a witness at an inquest. This power cannot be used merely because a child is affected by the inquest, so it may not be used to ban reporting of the name of a child of the deceased who is under 18 who, although an IP, is not a witness. Nor can it be used to restrict reporting of the identity of a deceased child who is the subject of the inquest.
29. Section 39(1) CYPA provides that the court can restrict the publication of (a) the name, address or school of any child or young person by or against whom the proceedings are taken or who is a witness in the proceedings (b) particulars that might identify the child and (c) their picture.
30. There must be a good reason, apart from age alone, for imposing a s.39 CYPA order. The coroner must balance the public interest in the full reporting of inquest proceedings against the desirability of not causing harm to the child concerned. To comply with Article 10 ECHR it must be necessary, proportionate and there must be a pressing social need for it when also balancing the child’s Article 8 rights.
31. The exercise of this discretionary power is preferably considered at an early stage of the investigation before the inquest commences. It is a power that a coroner can use of their own initiative and is not reliant on an application from an IP. Under section 39(1) CYPA the coroner must weigh the public interest in full reporting of the events concerned against the need to protect the child involved from harm.[24]
32. A s.39(1) order should usually track the language of the legislation as in the template Order appended here xx. It should clearly identify the child or children involved and be drawn up as soon as practicable after it is made. The order will automatically lapse when the child turns 18.
33. Where such an order is made it should be pronounced in open court. A form of pronouncement that might be adopted is as follows:
I am ordering that there must be no publication of any details if they are likely to lead members of the public to identify [name the child] as a person concerned in these inquest proceedings. This includes their name, address, school, educational establishment, place of work or anything else that may identify them, including any still or moving picture. Publication includes any printed or broadcast media as well as information published online including social media sites such as Facebook, Tik-Tok and X. I am imposing this restriction because ………… This order will last until the child is 18 years old or another order is made. Breach of my order is a criminal offence.
A child who is not a witness
34. The CYPA does not permit a coroner to impose reporting restrictions in respect of a child whose name has been mentioned during an inquest but is not a witness.
35. Depending on the circumstances, it is possible that other restrictions covering a child who is not a witness may apply:
- The identity of a deceased child may be protected where the Family Court or High Court has imposed an order restricting reporting and that order remains in force. The coroner must comply with the strict wording of the order but no further.[25]
- A person connected with the child may obtain an injunction from the High Court or Family Court to restrict publication of details regarding the child. The applicant must follow the correct procedure in making the application to the High Court and ensure that the media are given proper notice of the application.[26]
36. Where a coroner considers that there are compelling reasons for not identifying a child who is not (so far) a witness, the coroner may exceptionally consider one of two possible approaches:
- It may be appropriate to obtain a witness statement from the child (which could be read under rule 23) so that section 39 protection may, where appropriate, be provided; or
- in some cases there may be no need to identify a child who is referred to in proceedings on the basis that the child’s identity is irrelevant.
But the coroner in such circumstances should be careful to avoid using either alternative simply as a device to avoid legitimate reporting.
37. A coroner may also consider inviting the media present to refrain from publishing details which might identify a child. Journalists will often agree to such a request and it may assist to remind attending media of the Independent Press Standards Organisation guidance that reporting of an inquest should be handled sensitively and appropriate consideration should be given to the wishes and needs of the bereaved.[27]
Anonymity of victims of certain sexual offences
38. As a matter of law under s.1 Sexual Offences (Amendment) Act 1992 (external link) it is a criminal offence to publish the name or other personal information that might identify any living person (adult or child) as someone who is who is alleged to have been a victim of a sexual offence.
39. The offences to which this prohibition applies are listed in s.2 of the Sexual Offences (Amendment) Act 1992 (external link) which covers offences from rape through to indecent assault, amongst many others.
40. Coroners should always consider whether it is actually necessary in order to answer the statutory questions required by s.5 Coroners and Justice Act 2009 to hear evidence in the course of an inquest that will reveal that a living person is an alleged victim of a sexual offence.
41. On those occasions where issues related to alleged sexual offending against a living victim are indeed relevant to the investigation and are unavoidably part of the evidence given in open court (or are unintentionally revealed), coroners should be alert to the need to remind all participants, the media and any public attending the inquest of the prohibition under the Sexual Offences (Amendment) Act.
42. This being a statutory prohibition it does not require an order of the court, but a form of pronouncement that might be adopted is as follows:
It is a criminal offence under the Sexual Offences (Amendment) Act 1992 to publish or broadcast any matter that is likely to identify the alleged victim of a sexual offence. This automatic restriction will apply during the alleged victim’s lifetime, unless otherwise directed by a judge in a criminal trial. I am therefore reminding everyone that there must be no publication of any details that are likely to lead members of the public to identify any person whose name has been mentioned in this court as a victim of such an offence. Publication includes any printed or broadcast media as well as information published online including social media sites such as Facebook, Tik-Tok and X.
Reporting restrictions under s.4(2) Contempt of Court Act 1981
43. Once a matter has been stated in public in open court, the coroner’s powers to restrict the reporting of it are limited.[28]
44. Beyond the measures discussed above in respect of children and victims of sexual assault, the only other power available to coroners to restrict reporting of matters that have been stated in open court is found within s.4(2) of the Contempt of Court Act 1981 (external link) (CCA 1981). Under s.4(2) a coroner may order that the publication of any report of the proceedings, or any part of the proceedings, is postponed for such period as the court thinks necessary where publication would otherwise prejudice the administration of justice.
45. Where there is a jury, coroners should consider making an order pursuant to CCA 1981 (external link) that the publication of legal submissions should be postponed until the jury have reached their conclusions if there is a risk of substantial prejudice in the administration of justice because the jury might read about the submissions and be improperly influenced by them.
46. However, in many cases the coroner may feel that, rather than making a formal order, this risk is sufficiently dealt with by a request to the media not to report the submissions, accompanied by clear directions to the jury that they must determine the case according to the evidence that they have heard in court and not anything that may be reported in the media (including social media). They must therefore not research the case and if they accidentally see reports about it in the press or on the internet during its currency, they must ignore them.
47. Where the coroner is satisfied that a reporting restriction order is necessary they should consider the terms of any order carefully: the order should be in precise terms, giving its legal basis, its precise scope, and its duration (being very clear about the time or circumstances in which the order will cease to have effect).
48. In practice most responsible journalists are well aware that legal submissions in the absence of the jury should usually not be reported and coroners may, in appropriate instances and for good reason, simply invite those press attending the court not to report something without the need for an order to be made.
Considerations on making an anonymity order or reporting restriction order
49. Before imposing any type of anonymity order or an order under CCA 1981 delaying press reporting, the coroner must always take into account the principle of open justice. Any restriction may be imposed only so far as is lawful, necessary and proportionate.
50. There is a need for precision in formulation of orders so that those injuncted know the precise terms. The Reporting Restrictions Guide (PDF) in the Criminal Courts is a useful resource if considering making an order, albeit some different considerations will apply in that jurisdiction.
51. Before imposing any anonymity order, reporting restriction or restriction on media access to inquest proceedings, the coroner should ensure that all IPs and any other person directly affected (such as the media) are aware of the proposal and have had an opportunity to attend or make representations.
Press notification
52. The effect of s.12(2) Human Rights Act 1998 (external link) is that an injunction restricting the exercise of the right to freedom of expression should not be granted where the person against whom the application is made is neither present nor represented unless the court is satisfied (a) that the applicant has taken all practicable steps to notify the respondent, or (b) that there are compelling reasons why the respondent should not be notified.
53. The media should therefore be given advance notification of any application for anonymity or reporting restrictions and, should they wish, have an opportunity to make representations about the making of an order.
54. Generally, it should be the responsibility of the person or organisation making the application to notify the press of their application in sufficient time for the press to make any submissions to the coroner in advance of the matter being determined.
55. The legal representative for the IP or witness who is making the application should, therefore, be asked to confirm to the coroner that they have notified the press. The applicant should serve the press with: (a) their application including any legal submissions; (b) a witness statement justifying the need for the order; and (c) a copy of the draft order sought.
56. If a legally represented applicant has not notified the press, they can be directed by the coroner to do so. If the person seeking the restriction is not legally represented, or if the question of anonymity or reporting restrictions is being considered of the coroner’s own motion, it will then be necessary for the coroner to put the press on notice. In the absence of a formal application or witness statement explaining the request for restrictions then the coroner may instead draft a brief explanatory note for the press.
57. Service of applications for injunctive orders on the national media can be effected via the Press Association’s ‘CopyDirect’ service, to which most national newspapers and broadcasters subscribe as a means of receiving notice of such applications.[29] A practice direction setting out the process to be followed in the Family Division of the High Court is available here, and it will be helpful if a similar notification process is followed in coroners courts.
58. Local press and media organisations do not subscribe to the Press Association notification service and so should be informed directly of applications where relevant.[30]
59. Coroners should bear in mind that legal advisers to the media are used to participating in hearings at very short notice where necessary; and are able to differentiate between confidential information provided to them for legal purposes and information for editorial use. The information provided to the Press Association should therefore generally not be anonymised as responsible media organisations can be expected to respect the confidentiality of the evidence disclosed until the court has ruled upon the application. Notice simply that an application is being made in respect of some unidentified person’s inquest and stripped of the evidence and full argument in support is not proper notice.[31] Service of anonymity or reporting restrictions applications via the CopyDirect service should therefore be the norm.
60. Coroners still retain the power to make without-notice orders, but such cases will be exceptional, and any injunctive order should always give the persons affected by it liberty to apply to vary or discharge the order at short notice.
61. Once made, a copy of any reporting restrictions order should be posted on the door of the court and copies of the order should be made available to the attending media. The order must also be served directly on any other person or media organisation that the coroner wishes to be bound by it.[32] The Press Association’s alerts service will not serve the order on media organisations themselves.
Reporting Restrictions Orders under CCA 1981: the considerations
62. Reporting restriction orders will generally involve a balancing of rights under Article 8 (right to respect for private and family life) and Article 10 (freedom of expression). There is no automatic precedence between these two Articles; both are subject to qualification where (among other considerations) the rights of others are engaged.
63. Section 12(4) Human Rights Act 1988 (external link) requires the coroner to have particular regard to the importance of freedom of expression. The coroner should consider the extent to which material has, or is about to, become available to the public, and the extent of the public interest in such material being published.
64. HM Courts and Tribunals Service provides ‘General guidance to court staff on supporting media access to courts and tribunals’ which is available online (external link).
APPENDIX EXAMPLE ORDERS PREPARED
- Anonymity s.11 CCA 1981
- Anonymity s.39 CYPA 1933
- Reporting restrictions s.4(2) CCA 1981
[1] See chapter 8 for more information on open justice. Granting anonymity to a witness or restricting reporting of inquest proceedings does not necessarily contravene the general principle in favour of open justice – see Scott v Scott [1913] AC 417; Attorney General v Leveller [1979] AC 440 at 449-450; R v Legal Aid Board exp Kaim Todner (external link) [1999] QB 966 at 977; Allan v Clibbery [2002] Fam 261 (external link) at 270
[2] See: R v HM Coroner for Newcastle upon Tyne, exp A (1998) 162 JP 387.
[3] See chapter [X] on Witnesses
[4] An application for anonymity need not be served on the media under s.12(2) of the Human Rights Act 1998, as explained by Lord Reed in A v BBC [2014] UKSC 25 (external link) at §65-67 as, unlike a reporting restrictions order, an application to allow a name to be withheld is not an application for injunctive relief made against any person. However fairness will nevertheless require that the media should have opportunity to challenge an anonymity order that has been made, therefore giving advanced notification to the media that the issue is to be determined before the order is made can avoid the need for two hearings addressing the same issue. See further below at §52-61 for discussion of the requirement for press notification in advance of hearing an application for a reporting restrictions order.
[5] In so far as this does not defeat the purpose of the application.
[6] Albeit the identity of the subject of the anonymity application will be withheld from the media
[7] [2007] UKHL 36 (external link) per Lord Carswell at §29.
[8] See Osman v United Kingdom (2000) 29 EHRR 245 (external link), also described by the Supreme Court as being a ‘present and continuing’ risk in Rabone v Pennine Care NHSFT [2012] UKSC 2 (external link) at §39
[9] Relevant circumstances might include: where an applicant is required to undertake covert work as an essential part of their duties and there is a substantial risk that unless anonymised, they would be prevented from doing such work in the future; or an applicant undertaking operations against terrorists or organised criminal groups and that they or their family would be at risk of retaliation if their identity were revealed.
[10] (1998) 29 EHRR 245
[11] See Rabone v Pennine Care NHS Trust (external link) [2012] 2 AC 72 at [37]-[40].
[12] see Re Officer L, at [22].
[13] see Sunday Newspaper Ltd’s Application (Judgment No. 2) (external link) (2012) NIQB at [17].
[14] The following paragraphs are taken from Note on Anonymity of Witnesses: Sir Peter Thornton KC, 1974 Birmingham Pub Bombing Inquests 2019 (PDF)
[15] See R v Bedfordshire Coroner, Ex Parte Local Sunday Newspapers (PDF) (2000) 164 JP 283.
[16] In re Guardian News and Media Ltd (external link) [2010] 2 AC 697 at [63].
[17] See In re S (FC) (A Child) [2005] (external link) 1 AC 593 at [16]-[17]; In re Guardian News and Media (cited above); SSHD v AP (No. 2) (external link) [2010] 1 WLR 1652 at [7].
[18] see R (T) v West Yorkshire (Western Area) Coroner (external link) [2018] 2 WLR 211 at [63].
[19] R v Davis [2008] (external link) 1AC 1128, [2008] UKHL 36
[20] ‘An intense focus on the comparative importance of the competing rights being claimed in the individual case is necessary.’ See In Re Officer L (2007) UKHL 36 (external link). There must be justification for interfering with or restricting any ECHR right.
[21] Any departure from the principle of open justice must be stringently regulated: R v Bedfordshire Coroner, ex parte Local Sunday Newspapers Ltd (2000) (external link) 164 JP 283 (external link).
[22] from which much of the above text is taken.
[23] See Independent Publishing Company Limited v Attorney General of Trinidad and Tobago and Another [2005] 1 AC 190 (external link) §65 and Re AB (Application for reporting restrictions: Inquest) (external link) [2019] EWHC 1668 (QB) §24
[24] R v Central Criminal Court exp Godwin and Crook [1995] 1 WLR 139 CA
[25] A copy of any order made by the High Court or Family Court should be obtained so that the coroner is aware of its exact terms and extent. Anonymity orders made in the High Court or Family Court or Court of Protection often do not extend beyond the death of the subject. On occasions the wording of the order may specifically exclude coronial proceedings from their ambit.
[26] Re AB (Application for reporting restrictions: Inquest) (external link) [2019] EWHC 1668 (QB)
[27] Independent Press Standards Organisation: Deaths and inquests guidance (external link) was updated on 31 January 2023, see that new guidance here. See also the IPSO reporting suicides guidance (external link).
[28] See Independent Publishing Company Limited v Attorney General of Trinidad and Tobago and Another [2005] 1 AC 190 (external link) §65 and Re AB (Application for reporting restrictions: Inquest) (external link) [2019] EWHC 1668 (QB) §24
[29] PA Media, is the national news agency for the UK and Ireland (which has agreed to be a point of contact, as with Family Division orders, for this purpose). Details on the Media Lawyer website (external link). Coroners Courts can contact the News desk on 0207 963 7146 or email newseditors@pa.media
[30] The Press Association notification system serves all the national media (newspapers and broadcasters) with the exception of the Financial Times and SKY. If notice has to be served on those two companies it needs to be served on them directly.
[31] See Re AB (Application for reporting restrictions: Inquest) (external link) [2019] EWHC 1668 (QB) at §19
[32] Contact details for national media organisations can be found on the PA Media website (external link).