Example of section 46 question A man is accused of stealing a valuable book from a

public library. During a preliminary hearing in the case, the prosecution barrister asks the
Crown court judge to make an order, “to protect” a senior librarian who is a prosecution
witness, under section 46 of the Youth Justice and Criminal Evidence Act 1999. The
barrister states: “This librarian will be a key witness in the trial of this case. He is very
experienced in his job, and he remains the person in charge of the library. He can testify
clearly that he saw the defendant take this book from the shelves. He challenged the
defendant, who was a frequent user of the library, but the defendant ran out with the book.”
a) What would be the effect of the order, if the judge agrees to it, as regards media
reports of the trial in this court case? Explain the scope of such an order.
b) In the circumstances set out above, what could a reporter state to the judge to
oppose the order being made in this particular case? (30 marks)

Model answer
a) A section 46 order can be made to grant anonymity, in media reports of a court
case, to an adult witness [aged over 18] 2 marks
who the court considers is in ‘fear’ 2 marks
or ‘distress’ about being identified in such a report 2 marks
The effect would be that it would be illegal to include in any publication during the witness’s
lifetime
any matter likely to identify him/her to public as a witness in those court proceedings.
2 marks
(If lifetime not stated or conveyed, none of these two marks should be awarded))

The Act says that the matter which cannot be published, if likely to identify such a witness,
includes in particular:
the witness’s name:
the witness’s address;
the identity of any educational establishment attended by him/her;
the identity of any place of work; and
any still or moving picture of the witness. 5 marks

In the above scenario, such a section 46 order would mean the library could not be identified
in media report of the case 4 marks

b) Reporter could also query/challenge whether the witness is really in fear/ distress
about testifying 3 marks
After all, he is an experienced, professional person/it is part of his job to help prosecute
book thieves 3 marks

Reporter could also point out: Who does the librarian need protection from?/Does the
section 46 order serve much purpose, in that the defendant must know who the witness is –
e.g. he was challenged by the witness as he stole the book/defendant will have been told in
the case papers who the witness is 2 marks

The reporter can argue that his/her/public’s Article 10 rights, under the European Convention
of Human Rights/principle of open justice would be infringed if the section 46 order is made
for no good reason 2 marks

Other valid points, 3 marks, e.g. The Home Office explanatory notes to/guidance on the
1999 Act state that neither ‘fear’ nor ‘distress’ is seen as covering a disinclination to give
evidence on account of mere embarrassment.
[or] purpose of such an order is to improve the quality of evidence given by the
witness/improve co-operation of witness with, in this case, the prosecution – but the witness
seems to be offering clear evidence/co-operating already. Total marks 30.