Modifications etc. (not altering text)
C1Pt. II Ch. IV modified (31.10.2009) by The Youth Justice and Criminal Evidence Act 1999 (Application to Service Courts) Order 2009 (S.I. 2009/2083), arts. 1, 13
(1)Where a person is charged with an offence under section 49 it shall be a defence to prove that at the time of the alleged offence he was not aware, and neither suspected nor had reason to suspect, that the publication included the matter or report in question.
(2)Where—
(a)a person is charged with an offence under section 49, and
(b)the offence relates to the inclusion of any matter in a publication in contravention of section 44(2),
it shall be a defence to prove that at the time of the alleged offence he was not aware, and neither suspected nor had reason to suspect, that the criminal investigation in question had begun.
(3)Where—
(a)paragraphs (a) and (b) of subsection (2) apply, and
(b)the contravention of section 44(2) does not relate to either—
(i)the person by whom the offence mentioned in that provision is alleged to have been committed, or
(ii)(where that offence is one in relation to which section 1 of the M1Sexual Offences (Amendment) Act 1992 applies) a person who is alleged to be a witness to the commission of the offence,
it shall be a defence to show to the satisfaction of the court that the inclusion in the publication of the matter in question was in the public interest on the ground that, to the extent that they operated to prevent that matter from being so included, the effect of the restrictions imposed by section 44(2) was to impose a substantial and unreasonable restriction on the reporting of matters connected with that offence.
(4)Subsection (5) applies where—
(a)paragraphs (a) and (b) of subsection (2) apply, and
(b)the contravention of section 44(2) relates to a person (“the protected person”) who is neither—
(i)the person mentioned in subsection (3)(b)(i), nor
(ii)a person within subsection (3)(b)(ii) who is under the age of 16.
(5)In such a case it shall be a defence, subject to subsection (6), to prove that written consent to the inclusion of the matter in question in the publication had been given—
(a)by an appropriate person, if at the time when the consent was given the protected person was under the age of 16, or
(b)by the protected person, if that person was aged 16 or 17 at that time,
and (where the consent was given by an appropriate person) that written notice had been previously given to that person drawing to his attention the need to consider the welfare of the protected person when deciding whether to give consent.
(6)The defence provided by subsection (5) is not available if—
(a)(where the consent was given by an appropriate person) it is proved that written or other notice withdrawing the consent—
(i)was given to the appropriate recipient by any other appropriate person or by the protected person, and
(ii)was so given in sufficient time to enable the inclusion in the publication of the matter in question to be prevented; or
(b)subsection (8) applies.
[F1(6A)Where—
(a)a person is charged with an offence under section 49, and
(b)the offence relates to the inclusion of any matter in a publication in contravention of a direction under section 45A(2),
it shall be a defence, unless subsection (6B) or (8) applies, to prove that the person in relation to whom the direction was given had given written consent to the inclusion of that matter in the publication.
(6B)Written consent is not a defence by virtue of subsection (6A) if the person was under the age of 18 at the time the consent was given.]
(7)Where—
(a)a person is charged with an offence under section 49, and
(b)the offence relates to the inclusion of any matter in a publication in contravention of a direction under section 46(2),
it shall be a defence, unless subsection (8) applies, to prove that the person in relation to whom the direction was given had given written consent to the inclusion of that matter in the publication.
(8)Written consent is not a defence [F2by virtue of subsections (5) to (7)] if it is proved that any person interfered—
(a)with the peace or comfort of the person giving the consent, or
(b)(where the consent was given by an appropriate person) with the peace or comfort of either that person or the protected person,
with intent to obtain the consent.
(9)In this section—
“an appropriate person” means (subject to subsections (10) to (12))—
in England and Wales or Northern Ireland, a person who is a parent or guardian of the protected person, or
in Scotland, a person who has parental responsibilities (within the meaning of section 1(3) of the M2Children (Scotland) Act 1995) in relation to the protected person;
“guardian”, in relation to the protected person, means any person who is not a parent of the protected person but who has parental responsibility for the protected person within the meaning of—
(10)Where the protected person is (within the meaning of the Children Act 1989 [F3or the Social Services and Well-being (Wales) Act 2014]) a child who is looked after by a local authority, “an appropriate person” means a person who is—
(a)a representative of that authority, or
(b)a parent or guardian of the protected person with whom the protected person is allowed to live.
(11)Where the protected person is (within the meaning of the M5Children (Northern Ireland) Order 1995) a child who is looked after by an authority, “an appropriate person” means a person who is—
(a)an officer of that authority, or
(b)a parent or guardian of the protected person with whom the protected person is allowed to live.
(12)Where the protected person is (within the meaning of section 17(6) of the M6Children (Scotland) Act 1995) a child who is looked after by a local authority, “an appropriate person” means a person who is—
(a)a representative of that authority, or
(b)a person who has parental responsibilities (within the meaning of section 1(3) of that Act) in relation to the protected person and with whom the protected person is allowed to live.
(13)However, no person by whom the offence mentioned in section 44(2) is alleged to have been committed is, by virtue of subsections (9) to (12), an appropriate person for the purposes of this section.
(14)In this section “the appropriate recipient”, in relation to a notice under subsection (6)(a), means—
(a)the person to whom the notice giving consent was given,
(b)(if different) the person by whom the matter in question was published, or
(c)any other person exercising, on behalf of the person mentioned in paragraph (b), any responsibility in relation to the publication of that matter;
and for this purpose “person” includes a body of persons and a partnership.
Textual Amendments
F1S. 50(6A)(6B) inserted (13.4.2015) by Criminal Justice and Courts Act 2015 (c. 2), ss. 78(4)(a), 95(1); S.I. 2015/778, art. 3, Sch. 1 para. 63
F2Words in s. 50(8) inserted (13.4.2015) by Criminal Justice and Courts Act 2015 (c. 2), ss. 78(4)(b), 95(1); S.I. 2015/778, art. 3, Sch. 1 para. 63
F3Words in s. 50(10) inserted (6.4.2016) by The Social Services and Well-being (Wales) Act 2014 (Consequential Amendments) Regulations 2016 (S.I. 2016/413), regs. 2(1), 163
Commencement Information
I1Pt. II Chs. 1-4 (ss. 16-52) in force for certain purposes at Royal Assent, see s. 68(4)
I2S. 50 in force at 7.10.2004 for specified purposes for E.W. by S.I. 2004/2428, art. 2(c)
I3S. 50 in force at 7.10.2004 for specified purposes for S. by S.S.I. 2004/408, art. 3(b)
I4S. 50 in force at 8.11.2004 for specified purposes for N.I. by S.R. 2004/467, art. 2(d)
I5S. 50 in force at 13.4.2015 for specified purposes for E.W. by S.I. 2015/818, art. 2(d)
Marginal Citations
M4S.I. 1995/755 (N.I. 2.).
M5S.I. 1995/755 (N.I. 2.).