Full case report
R v Burrell
Court Central Criminal Court
Judge Aikens J
Date of Judgment 20 Dec 2004
Rape trial – reporting restriction under s.4(2) Contempt of Court Act 1981 – complainant threatening not to give evidence unless restriction imposed – Articles 8, 10 European Convention on Human Rights
X was a rape complainant. After the prosecution opened its case, X informed prosecution counsel that she would be unable to give evidence unless a reporting restriction was imposed in regard to a significant number of the details of the alleged offences (in addition to her statutory right to anonymity). She stated that some work colleagues had discovered that she was the complainant and that if certain evidence were reported she would be too embarrassed to return to her place of work and would therefore have to resign. The Crown consequently applied for an order under s.4(2) Contempt of Court Act 1981 restricting the reporting of the relevant facts concerning the events surrounding the alleged offences for the duration of X’s life.
Was such an order necessary for avoiding a substantial risk to the administration of justice?
The judge followed the 3-stage test set out in R v Sherwood ex p. The Telegraph Group  1 WLR 1983 and reached the following conclusions: there was an “appreciable risk” that X might not give evidence if the order were not imposed and that this would constitute a “not insubstantial risk” of prejudice to the administration of justice; a lifetime ban on reporting all sensitive and embarrassing evidence concerning the alleged rape for the duration of X’s life would eliminate the perceived risk of X not giving evidence; but that such a ban was not “necessary for avoiding a substantial risk of prejudice to the administration of justice”. In all the circumstances, he concluded that the public interest in the open administration of justice was “so strongly against such an order” that it would not be in the interests of justice to impose it.
This is widely believed to be the first instance in which a complainant of any description in a criminal case has sought a reporting restriction on the basis that unless it is imposed he or she will not give evidence. Importantly, the trial judge did not give great weight to the real risk that the administration of justice would be impeded if the trial did not go ahead, choosing instead to look at the interests of justice in the round, which particularly included the interest in the administration of justice being open to public scrutiny via the media.
Marcus Partington (MGN) for the newspaper; CPS for the prosecution
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