Application of Gag Orders
What is a gag order?
Gag orders are orders issued by the Court to protect the identities of minors involved in court proceedings or victims of criminal offences, especially victims of sexual crimes. The objective of imposing such a court order is to protect witnesses and victims from embarrassment or public scrutiny as a result of the court proceedings.
The imposition of a gag order will restrain the publication of any information likely to lead to the identification of the protected person in any court proceedings. This would generally include, but not limited to, information relating to the protected person’s age, nationality, ethnic group, residential address, school, co-curricular activities, employment/profession, identities of their family members/ friends/ neighbours, etc.
When will the Public Prosecutor apply for a gag order?
Generally, the Public Prosecutor may apply for a gag order in respect of the victim’s/ witness’ identity in:
a. Cases involving sexual offences i.e. outrage of modesty, sexual penetration of a minor, rape, insulting the modesty of a woman etc.;
b. Cases involving children/minors i.e. where the victim/witness is under the age of 18. This may involve cases of child abuse, or violence used against a very young victim;
c. Cases involving sexual exploitation of trafficked victims.
However, gag orders are not confined to cases involving sexual offences or young victims. The Public Prosecutor may also apply for a gag order in appropriate cases in order to enable witnesses to testify freely during trial without fear of embarrassment from public scrutiny.
Why is the offender in a sex crime not named?
A gag order is never imposed for the purpose of protecting the accused person. In some cases, the Court may impose a gag order that specifies that the accused person in the case cannot be identified. Such an order is made if naming the accused person may lead to the identification of the victim(s) or witness(es) whose identities ought to be protected in proceedings. For example, if the accused is a close family member (e.g. parent) of the victim whose identity is protected, the accused’s identity cannot be published as it leads to the identification of the victim.
Does a gag order apply when the identity of the person to be protected has passed away?
A gag order may not be necessary if the person (usually a victim) which the order seeks to protect is deceased. However, if disclosure of the deceased’s identity may lead to the identification of other victims or witnesses in the case (such as the deceased victim’s sibling who is a witness to the offence) whose identities need to be protected, the gag orders protecting the identities of these other victims or witnesses will specify that the deceased cannot be identified.
Who does a gag order apply to? Does it apply only to the media?
A gag order applies to all persons. Any person who publishes any information that is likely to lead to the identification of the protected person will be in breach of the gag order.
Persons who are found to be in breach of gag orders may be prosecuted. In particular, if an offender is found to have intentionally disobeyed a gag order, he/she may be found in contempt of court. A breach of a gag order can result in a fine and/or imprisonment; and the punishment will depend on the wording of the specific provision which has been contravened. For example, breaching a gag order under Section 7(3) of the State Courts Act will attract a fine of up to $5,000 or imprisonment for a term not exceeding 12 months, or both.
Are there other laws prohibiting the publication of information in court cases?
In the absence of a gag order, there are some legal provisions that prohibit the publication of certain information relating to court cases. This means that even if there is no gag order in place, publication of the relevant protected information by any persons is prohibited by law. Some of the specific prohibitions that commonly apply are listed below:
| S/n | Provision | Restriction |
| 1 | Section 111 of the Children and Young Persons Act 1993 (“the CYPA”). | Prohibits the publication of information that identifies or is likely to identify any child[1] or young person[2] as a person who has been or is the subject of any investigation under the CYPA. |
| 2 | Section 112 of the CYPA |
Prohibits the publication of any information relating to any court proceedings that reveals the name, address, school, or particulars calculated to lead to the identification of any child or young person concerned in such proceedings. |
| 3 | Section 18(2) of the Prevention of Human Trafficking Act 2014 | Prohibits the publication of information or the doing of any act likely to lead to the identification of a trafficked victim, where the proceedings pertain to the sexual exploitation of a trafficked victim. |
| 4 | Section 153(4) of the Women’s Charter 1962 | Prohibits the publication of information[3] involving offences under ss 354, 354A, 375, 376, 376A, 376B, 376C, 376D, 376E, 376F, 376G, 377B of the Penal Code in respect of any woman or girl. |
| 5 | Section 225 of the Criminal Procedure Code 2010 (“the CPC”) |
Prohibits the publication of information contained in the Case for the Prosecution, Case for the Defence or Prosecution’s Supplementary Bundle save for exempted information. |
| 6 | Section 425A(1) of the CPC | Prohibits the publication of information that identifies the complainant or alleged victim of a sexual offence or child abuse |
[1] “Child” means a person below the age of 14 years.
[2] “Young person” means a person who is 14 years of age or above and below the age of 18 years for the purpose of the provisions cited.
[3] (a) Name or address of the female victim; (b) Particulars which identify or are calculated to lead to the identification of the female victim; (c) Name or address of any witness which may lead to the identification of the female victim; (d) Particulars of any evidence given by any witness which may lead to the identification of the female victim; (e) Any picture of the female victim or any witness in the proceedings.