Section 46 Adult Witness Anonymity

What a section 46 reporting direction is

Section 46 gives a criminal court the power, on the application of a party to the proceedings, to make a “reporting direction” in relation to a witness in those proceedings — other than the accused — who has attained the age of 18 (s.46(1)). The protected witness may be the complainant or any other witness. Three boundary points matter for reporters:

• ›Adults only: the witness must be 18 or over. Under-18 witnesses and victims are covered by s.45 and s.45A YJCEA 1999 instead.
• ›Never the defendant: s.46(1) expressly excludes the accused. A defendant cannot obtain anonymity under this section.
• ›Order required: unlike sexual-offence complainant anonymity or the youth court restriction, nothing applies automatically. A party (prosecution or defence) must apply, and the court must make the direction.

Note the shape of the prohibition: it is not a ban on reporting the case, or even on mentioning the witness's evidence — it is a ban on publishing matter likely to lead the public to identify the person as a witnessin the proceedings, and it runs for the whole of the witness's life.

The test: fear or distress diminishing the evidence

The court must work through a two-stage statutory test. First, the witness must be “eligible for protection” under s.46(3): the court must be satisfied that the quality of the witness's evidence, or the level of their co-operation with a party's preparation of its case, is likely to be diminished by reason of fear or distress on the part of the witness in connection with being identified by members of the public as a witness in the proceedings. Second, under s.46(2), the court must determine that giving a reporting direction is likely to improvethe quality of the evidence or the level of co-operation. “Quality” here means completeness, coherence and accuracy (s.46(12)).

In deciding eligibility the court must take into account, in particular, the factors listed in s.46(4):

• ›The nature and alleged circumstances of the offence.
• ›The age of the witness.
• ›Where relevant: the witness’s social and cultural background and ethnic origins, domestic and employment circumstances, and religious beliefs or political opinions.
• ›Any behaviour towards the witness by the accused, by members of the accused’s family or associates, or by anyone else likely to be an accused or witness in the proceedings.

The court must also consider any views expressed by the witness (s.46(5)), and under the Criminal Procedure Rules the applicant must explain why a direction would be likely to improve the quality of the witness's evidence or level of co-operation (CrimPR 6.4). General nervousness about publicity is not the statutory test — the fear or distress must be connected to being identified by the public as a witness, and it must bite on the evidence or co-operation. This is the ground on which weak applications can be resisted.

What a direction prohibits: the section 46(7) particulars

Section 46(7) says the matters relating to a witness whose publication may be prohibited include in particular:

• ›The witness’s name,
• ›The witness’s address,
• ›The identity of any educational establishment attended by the witness,
• ›The identity of any place of work, and
• ›Any still or moving picture of the witness.

The list is illustrative, not exhaustive, and it is qualified: as the Judicial College guidance explains, publishing one of these particulars is not of itself an offence unless its inclusion is likely to lead to the person's identification by the public as a witness in the proceedings. In practice, treat every listed particular as high-risk, and remember the jigsaw principle — a combination of details that individually seem safe (occupation plus neighbourhood plus role in the trial) can cumulatively identify. See our guide to jigsaw identification.

One trap flagged by the Court of Appeal in ITN News v R [2013] EWCA Crim 773: a s.46 order can also restrict identification of children— for example the witness's own children — where identifying them would lead to identification of the protected adult. Do not assume that people not named in the order are safe to picture or name.

The open-justice balance and excepting directions

Section 46 builds the press-freedom balance into the statute. When deciding whether to make a direction the court must take into account whether it would be in the interests of justice to do so, and “the public interest in avoiding the imposition of a substantial and unreasonable restriction on the reporting of the proceedings” (s.46(8)).

Once a direction exists, the court or an appellate court may by an “excepting direction” dispense with its restrictions, to any extent specified, if satisfied that it is necessary in the interests of justice to do so, or that the restrictions impose a substantial and unreasonable restriction on reporting and it is in the public interest to remove or relax them (s.46(9)). An excepting direction can be given at the time of the reporting direction or later, and can be varied or revoked (s.46(11)); the reporting direction itself can be revoked by the court or an appellate court (s.46(10)). But s.46(9) contains a proviso reporters should know: no excepting direction may be given on the public-interest ground by reason only of the fact that the proceedings have been determined or abandoned. The end of the trial is a relevant factor — not a trump card.

When the court assesses the public interest for these purposes, s.52 YJCEA 1999 directs it to have regard in particular to the interest in the open reporting of crime, the open reporting of matters relating to human health or safety, and the prevention and exposure of miscarriages of justice — as well as the welfare and views of the protected person. Frame any newsroom challenge in these statutory terms.

Breach: the section 49 offence and section 50 defences

Publishing matter in contravention of a s.46 direction is a summary criminal offence under s.49 YJCEA 1999. Where the matter appears in a newspaper or periodical, any proprietor, any editor and any publisher is liable; for a broadcast programme, the body providing the programme service and any person with functions corresponding to those of an editor; for any other publication — which includes online-only outlets and social media accounts — any person publishing it. The penalty is a fine not exceeding level 5 on the standard scale, which in England and Wales has meant an unlimited fine since s.85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 removed the cap.

Section 50 provides defences relevant to s.46 breaches:

• ⚠Lack of awareness (s.50(1)): it is a defence to prove that at the time you were not aware, and neither suspected nor had reason to suspect, that the publication included the matter in question.
• ⚠Written consent (s.50(7)): it is a defence to prove that the protected witness gave written consent to the inclusion of the matter — the witness can, in effect, waive their own anonymity.
• ⚠The consent safeguard (s.50(8)): written consent is no defence if it is proved that any person interfered with the peace or comfort of the person giving it, with intent to obtain the consent. Doorstepping a protected witness into signing a waiver destroys the defence.

If you want to name a consenting witness, get the consent in writing, keep it on file, and make sure it was freely given — and remember that consent obtained for one story does not automatically cover a follow-up years later while the direction still stands.

How section 46 differs from the other anonymity regimes

Section 46 completes a family of anonymity provisions that are easy to confuse. The differences determine what you must check before publishing:

• ›Sexual Offences (Amendment) Act 1992: automatic lifetime anonymity for complainants of sexual offences — no order needed, applies from the moment of the allegation. A sexual-offence complainant does not need a s.46 direction to be anonymous.
• ›Section 49 CYPA 1933: automatic anonymity for under-18s concerned in youth court proceedings.
• ›Section 45 YJCEA 1999: discretionary orders protecting under-18 defendants, victims and witnesses in the adult criminal courts; protection ends at 18.
• ›Section 45A YJCEA 1999: discretionary lifetime anonymity for under-18 victims and witnesses (not defendants).
• ›Section 46 YJCEA 1999: discretionary lifetime anonymity for adult witnesses (never the accused), on the fear-or-distress test.
• ›Section 11 Contempt of Court Act 1981: a different mechanism entirely — it can only protect a name or matter that was withheld from open court in the first place.

The practical consequence: an adult witness in a non-sexual case has no anonymity unless a court has ordered it — and an adult witness with a s.46 direction keeps it for life, long after the case has faded from the archive. Both halves of that sentence catch reporters out. See our guides to sexual offences anonymity and the 1992 Act regime.

Newsroom practice: checking, wording, and challenging

Because s.46 directions are discretionary and case-specific, your protection is process, not memory:

• ›Check with the court, every time: ask the court clerk or listing office whether any reporting restrictions are in force and under which provision. Courts should announce orders and record them in writing — ask for the exact written terms, including who is protected and what is restricted.
• ›Read the order’s scope precisely: a s.46 direction protects a named witness, not the whole case. It does not stop you reporting the evidence — only matter likely to identify the person as a witness.
• ›Make representations early: the Criminal Practice Directions require courts to give the media an opportunity to make representations before a restriction is imposed — or, where an order is made urgently without notice, to hear the media as soon as possible afterwards. News is perishable; courts are expected to deal with challenges swiftly.
• ›Challenge on the statute’s own terms: argue the s.46(3) eligibility test is not met, or that the order imposes a substantial and unreasonable restriction on reporting (s.46(8)-(9)), invoking the s.52 public-interest factors.
• ›Appeal route: s.159 Criminal Justice Act 1988 gives the media a right of appeal to the Court of Appeal against Crown Court reporting restrictions, including s.46 directions (ITN News v R).
• ›Flag protected witnesses in your archive and CMS so a future court report, feature, or anniversary piece does not innocently identify a witness whose direction still stands decades later.

The Judicial College's Reporting Restrictions in the Criminal Courts guidance (endorsed by the Lord Chief Justice and produced with the media industry) covers s.46 at section 4.3 and is the document to cite when addressing a judge.

Common mistakes

• ⚠Assuming an adult witness is anonymous because the case is sensitive — s.46 protection requires an order, and outside sexual offences there is usually none.
• ⚠Assuming the direction expired with the case — it lasts for the witness’s lifetime, and the end of proceedings is not, by itself, grounds for an excepting direction.
• ⚠Publishing a photograph or footage of a protected witness on the basis that they are not named — any still or moving picture is squarely within s.46(7).
• ⚠Naming the witness’s workplace or college in colour copy — both are listed particulars if likely to identify them as a witness.
• ⚠Treating a s.46 direction as covering the defendant — it cannot; if a defendant appears to have anonymity, some other order (or an error) is involved, so check the order’s wording.
• ⚠Relying on verbal consent from the witness — only written consent engages the s.50(7) defence, and not if pressure was applied to obtain it.

Related guides

Frequently asked questions