Open and shut justice

The press court reporter is a watchdog of justice (Image: Shutterstock)

The principles of open justice are well established and widely discussed, and the role of the press and journalists in reporting and commenting on the justice system has been the subject of judicial comment and approval. In R v Felixstowe Justices Ex P Leigh, Lord Justice Watkins cited with approval Lord Denning’s comments in The Road to Justice (1955), saying:

‘[The press court reporter] is, I verily believe, the watchdog of justice. If he is to do his job properly and effectively we must hold fast to the principle that every case must be heard and determined in open court. It must not take place behind closed doors. Every member of the public must be entitled to report in the public press all that he has seen and heard. The reason for this rule is the very salutary influence which publicity has for those who work in the light of it…’

and adding:

‘…Those observations suffice to emphasise to the mind of anyone the vital importance of the work of the journalist in reporting court proceedings and, within the bounds of impartiality and fairness, commenting upon the decisions of judges and justices and their behaviour in and conduct of the proceedings.’

But the practicalities of ensuring that justice is not merely done, but is seen to be done, continue to cause problems for those journalists who seek to report on the courts.

Reporters regularly spend time in magistrates’ courts, Crown Courts, the High Court, and sometimes the Court of Appeal, observing and reporting on trials and hearings covering issues ranging from terrorism, murder and rape to shop-lifting, or allegations of medical negligence, and disputes over shoddy building work, land boundaries, or the terms of contracts. It is a simple job, one might think – information is given in open court, and should be reportable, and the basic details, such as names and addresses of defendants, the names of witnesses and so on should be obtainable from the court staff if they are not clearly given in open court. The journalist only has to listen, take a decent note, and write the story.

But the journalist must also know that there are more than 60 separate statutes which cover the activities of the press. A fair number of these feature automatic or discretionary restrictions on what may be reported from a hearing or a trial. None of these restrictions, naturally, limits what the member of the public sitting next to the journalist may say to his chums as he discusses the events of the day in the pub that night – or, perhaps, the musings of the blogger who goes home and writes it all up on his website, in happy ignorance of the law.

Many hearings in criminal courts, particularly those held in the early stages of a case, are covered by automatic restrictions which ban publication of all but the most basic details, so as to avoid prejudicing potential jurors when the case comes to trial.

Criminal and courts also may impose restrictions on reporting. They may order that reports of all or part of a hearing, or trial, should be postponed, again because they believe that media coverage might prejudice the views of potential jurors at a subsequent trial, or decide that some information, such as the identity of a blackmail victim, must be kept from the public and cannot be reported at all.

The difficulty, however, is not with the law, but with the way in which it is applied.

Orders may give anonymity to juveniles appearing in adult courts, while juveniles appearing in youth courts automatically get anonymity. Courts may give anonymity to witnesses if they believe that doing so will improve their evidence or co-operation with one party or the other. Victims of sexual offences are automatically entitled to lifelong anonymity – and in the near future, no doubt, provisions in the Education Act 2011 which give lifelong anonymity to teachers accused of offences against pupils in their care will come into force.

So far, one might say, so good; most of these restrictions can be justified, at least to some extent.

The difficulty, however, is not with the law, but with the way in which it is applied, or, in the terminology of the digital age, with the human interface. As often happens with IT systems, it is the operator – in the case of the justice system, the judges, magistrates, lawyers, clerks and other officials involved in it – which is the root cause of the problem.

Magistrates and judges in criminal courts sometimes act as if their powers to restrict reporting are unlimited, and impose orders which are beyond their powers. Orders are made at the request of counsel who often appear not to have checked before making a request to see if the court has the power do make the order sought. Although the principles on which reporting restriction orders may be made are well established, courts continually make orders beyond their powers. For example, it is common for courts to purport to make orders banning the identification of adults by using section 39 of the Children and Young Persons Act, which can only be used in relation to those under the age of 18. This damages the principle of open justice – and that damage too often remains, because the media find it too expensive to mount a proper challenge.

Judges have been known to exercise non-existent powers to give anonymity to those accused of sexual offences on the grounds that identifying the defendant will ‘automatically’ identify the victim. This is a nonsense. To say that a hypothetical offender called Artemus Jones raped a woman will not give away his victim’s name or identity. Neither will saying that the rape occurred in a certain town, or giving other details. In reality the judge is usurping the editor’s position; the legislation makes it clear that the onus is on the media to ensure anonymity for sex offence victims, and neither the 1976 or 1992 Act contains any provision empowering a court to order anonymity for an adult defendant.

The Judicial Studies Board – now the Judicial College – has published guidance on reporting restrictions, entitled Reporting Restrictions in the Criminal Courts. The latest edition, published in 2009, superseded separate guides on restrictions for the magistrates’ and Crown Courts. The guide sets out in detail the reporting restrictions which can be imposed, and the requirements which must be met. Yet it seems that few courts or judges have encountered this document, or have referred to it when facing a request for a reporting restriction order.

When the law is applied properly, or if no restrictions are in force or imposed, journalists still find themselves facing other difficulties.

Courts should have specific seating for reporters – but this is often unusable, having been colonised by court officials, probation officers, police and others. Many courts have no press seating.

The Court Standards and Design Guide published on a CD Rom in September 2004 by the Department for Constitutional Affairs – now the Ministry of Justice – seems to accept that the press should have reserved seating in courts. In states, on Page 6.3, in section on Section 6, Design Data Sheets & Court Room Design, under the heading ‘3 Elements of court room design: ‘Whether a courtroom is used for a Magistrates’ (section 7), Crown (section 8) or County Court (section 9) there are elements within the design that are functionally similar or identical. These generic aspects are covered here. They include: judges’/magistrates’ bench, clerk’s desk, witness box, jury desk, press desk, exhibits table, advocates’ bench, secure dock, and natural ventilation of courtrooms.

But security staff in courts have been known to refuse to allow journalists into the body of the court, insisting that they cover cases from the public gallery, where, in many cases the acoustics are bad, the seating unsuitable, the view restricted or minimal, and they are exposed to the risk of threats by those who may not want a case covered or certain details reported. On Thursday 8 March 2012 reporters who arrived at Westminster Magistrates’ Court in central London to cover the first appearance of Royal Navy submariner Petty Officer Edward Devenney on a charge under the Official Secrets Act were told by court staff that they would have to sit in the public gallery, where the journalists say it is extremely difficult to hear what it being said.

The dispute ended when District Judge Daphne Wickham agreed that reporters could sit in the body of the court. A spokesman for HM Courts Service said it was aware of the problem and was ‘addressing the issue’. Making journalists sit in the public gallery is also contrary to the HMCTS guidance on dealing with the media.

In addition, while the criminal courts regularly make orders restricting reporting, these are not kept on a central register. Governments have wasted millions on pounds of expensive and ambitious IT schemes, but nothing has been done to develop a central database through which current reporting restriction orders, and the information they seek to protect, can be double-checked. Any in-house lawyer, news editor or sub-editor who wishes to make sure that a case is not covered by a discretionary reporting restriction, or who wants to check the details of an order, had better do so before 4.30pm or 5pm, when most courts close for the day, because courts also do not have out-of-hours numbers to contact.

This may be the digital age – but when it comes to information technology and ensuring the widest possible publication of what should be public information, the courts remain in the dark ages, while the public often remain in the dark.

Even if one can get through to a court, a fair proportion of staff are unwilling to give journalists details of orders, some have been known to insist that requests must be made in writing, or that they can only photocopy and post the information sought.

The Ministry of Justice was involved during the closing months of the last Labour government in discussions with media organisations about establishing an online database of reporting restriction orders, but the idea has since sunk without trace, a victim of the supposed cost.

An extra difficulty, particularly with criminal courts, is that despite the requirements of the Consolidated Practice Direction  that reporting restriction orders must be written down when they are made, on occasion this simply is not done, with the result that an order might not be recorded properly for days, or might never be put down on paper.

In the civil courts, Part 39 (2) of the Civil Procedure Rules states that ‘The general rule is that a hearing shall be in public’, but judges have been known to refuse to allow journalists in when they do turn up in the apparent belief that they have no right to attend a hearing, as have court security staff.

There are also problems getting information from civil courts. The High Court – including the Family Division – keeps no central register of orders and injunctions. Thus, there is no way to check with the court whether there is an active injunction in force, whether it be a privacy order or one intended to protect children involved in civil proceedings. Inquiries invariably draw the response that one has to know the case number before an order can be tracked, if it can be tracked.

Is this, one wonders, acceptable in this digital, information technology age?

In addition, many claimants who obtain interim injunctions leave them in place and take their cases no further, having in effect obtained a permanent ban which binds anyone and everyone aware of its existence. There are signs that this situation is now changing, following the report on injunctions and super-injunctions produced by a committee set up by the Master or the Rolls, Lord Neuberger.

An extra difficulty in both criminal and civil courts if the frequent, almost knee-jerk refusal of many counsel to allow journalists to have copies of the skeleton arguments they submit to courts before a hearing, even though there have been a number of cases in which judges have declared that journalists should be given copies of the skeletons. In November 2011, barristers involved in a case in which HM Revenue and Customs was challenging the Football League’s rules on insolvency of football clubs refused to give journalists copies of their skeleton arguments, saying they were confidential documents. But Mr Justice David Richards said written arguments prepared by lawyers and parties in civil litigation were not ‘confidential documents’ and should be supplied to journalists, telling HMRC’s counsel: ‘They are not confidential documents. ‘You can do whatever you like with your skeleton arguments. You can post them on a website. Whatever you want.’ He added, ‘I would suggest that you do supply copies of skeletons to the press.’

In 2008 Mr Justice Eady ordered that journalist and legal observer Benjamin Pell should be given copies of skeleton arguments put into court as part of an unsuccessful application to stop Channel 4 broadcasting a programme about former SAS officer Simon Mann, who was at that time being held in Equatorial Guinea on charges of leading a coup attempt intended to overthrow the country’s government. But Mr Justice Eady said the parties did have the right to redact confidential material from the documents.

In 2003, the Court of Appeal, Criminal Division, held that barristers should give journalists copies of the skeleton arguments they prepare for court hearings if they were asked to do so. Lord Justice Judge, as he then was, said the court was supplied with skeleton arguments, which it read before the actual hearing, which analysed a vast amount of material. It would have been a waste of time for the skeletons to be read or repeated in court. The court had concluded that ‘the principle of open justice leads inexorably to the conclusion that written skeleton arguments, or those parts of skeleton arguments adopted by counsel and treated by the court as forming part of his oral submissions, should be disclosed if and when a request to do so is received’.

The media itself is active in working for open justice. Journalists regularly challenge orders made in the criminal courts, because they were wrongly made, or impose a substantial and unjustified restriction on reporting. But judges just as regularly ignore or reject challenges, insisting, in many cases despite clear authority to the contrary, that they have the power to do what they have done. Appeals can be made to the Court of Appeal under section 159 of the Criminal Justice Act 1988 – but these involve considerable costs and time, and more often than not the decision is that the story is simply not worth it.

National, regional and local newspapers are active in the field of open justice, as far as their resources allow. The Times has been campaigning to open up the Family Courts, while The Independent has spent a considerable amount of time and effort in prising open the doors of the Court of Protection, step by step and decision by decision over the past five or six years.

There are justifications for some limits to reporting of cases in both the family courts and the Court of Protection. But as Lord Justice Munby, as he now is, has pointed out: ‘…it must never be forgotten that, with the State’s abandonment of the right to impose capital sentences, orders of the kind which judges of the family courts are typically invited to make in public law proceedings are amongst the most drastic that any judge in any jurisdiction is ever empowered to make’. The family courts can have children removed from their parents, allow them to move abroad with one parent, while the Court of Protection may be asked to decide where a man with severe autism should live, and who should control his life, or even decide if a patient should be allowed to die.

These are powers which should not be exercised behind a veil of secrecy. While confidentiality to protect the individual concerned is justified, the courts and those professionals who give evidence in them should be open to media and public scrutiny. Only then can the public have true confidence that justice is being done, because they can see it being done.

Our criminal and civil justice systems do operate on the principle of open justice – but there are still many issues to be tackled, and many problems which cannot be solved without first being acknowledged.

(c) Mike Dodd. This is an extract from Justice Wide Open, a collection of working papers published in June 2012 as part of the ‘Open Justice in the Digital Era’ project at the Centre for Law, Justice and Journalism, City University London,