Allowing the appeal
(1) Section 1(1) of the 1992 Act affords lifetime anonymity to those who complain of rape and various other sexual offences. There is no provision for the court to make any order to give effect to this right. A duty to preserve anonymity is cast on others, breach of which is an offence. The provision was enacted so that complainants in sexual cases should not be discouraged by the prospect of publicity if they came forward to report an offence.
However, the right to anonymity, and the duty to preserve it, are qualified by section 1(4). The plain and obvious meaning of the language in section 1(4) is that section 1(1) does not operate to prohibit a report of any criminal proceedings other than those in which a person is accused of the sexual offence in question, or proceedings on appeal from such proceedings. Criminal proceedings in which a rape complainant is accused of perjury are “other proceedings” for that purpose. It follows that in enacting section 1, Parliament has legislated to exempt the reporting of proceedings such as those Miss Beale was facing from the ambit of the right to anonymity conferred by section 1(1),
The current guidance given by the Judicial College on Reporting Restrictions in the Criminal Courts (April 2015, revised May 2016) says at paragraph 3.2 that “the media is free to report the victim’s identify in the event of criminal proceedings other than the actual trial or appeal in relation to the sexual offence”. In this connection, it is an accurate statement of the law.
(2) The power given under section 4(2) has clear limitations: it is for the protection of the administration of justice in particular proceedings. The particular proceedings are “those proceedings”, that is, either the proceedings being heard at the relevant time, i.e. when the order is sought (see Horsham Justices, ex parte Farquharson  QB 762 at 773B); or other proceedings that are “pending or imminent”. Section 4(2) does not give power to make an order restricting publication for the purposes of protecting the administration of justice generally. The judge accepted that naming Miss Beale would not create a substantial risk of prejudice to the administration of justice in the current proceedings; and no relevant proceedings were identified that were “pending or imminent”. It followed that there was no power to make the order.
The focus on the protection of the administration of justice in particular proceedings (rather than the administration of justice generally) is entirely consistent with the express limitation of the scope of section 4(2) to postponement (unlike an order made under section 11 of the 1981 Act, for example). An order made under section 4(2) cannot postpone the publication of proceedings indefinitely, as the use of the word “postponement” in the statute makes clear: see Times Newspapers Limited v R  EWCA Crim 1925;  1 WLR 234. This can be achieved by providing a particular date when the order made will expire, or by incorporating in the order a reference to the point when the relevant proceedings (as defined above) have concluded.
Further, the judge failed to ask himself whether the restriction he imposed was “necessary”. He failed to explore what test should be applied in reaching a decision on that issue, or to apply that test. The law is clear: an order is only “necessary” if it satisfies the requirements of Article 10(2) of the European Convention on Human Rights, that is to say, it is “necessary in a democratic society” in pursuit of one or more of a number of specified aims. This includes the requirement that the measure be a proportionate means of achieving such aims. In order to avoid an unwarranted incursion into open justice, the step-by-step approach to making a section 4(2) order, identified in R v Sherwood and Others, ex parte Telegraph Group (CA)  1 WLR 1983, at  must be followed. The Judge made a general overall assessment of the desirability or otherwise of permitting, as a matter of policy, reports of proceedings in which those who have complained of rape are prosecuted for perjury. That is an important matter of public policy: see Economou v De Freitas  EMLR 4  – ; but it is a matter for Parliament, not for the court. Nor was it nor would it have been open to the judge to conclude that this order was ‘necessary in a democratic society’. To make a section 4(2) order on that basis came very close to legislating for anonymity in a situation which Parliament has expressly exempted from the general rule.