Court Reporting and the Law

15 October 2003

The Law on Court Reporting

The concept of natural justice in our judicial system requires that court proceedings should be
held openly and in public. The UK has been compelled to incorporate Article 6 European Convention
on Human Rights (the right to a fair and public trial) into the Human Rights Act 1998. Has a fair
balance been achieved?

Most courts are ‘open court’ which means that court is open to the general public. However, there
are certain circumstances where under statutory and common law provisions the parties may have a
sitting ‘in camera’ i.e. in private and therefore not open to the general public.

However, as the media are seen as the eyes and ears of the public and have a duty to inform the
public of daily events which are in the public interest, although the public may be restricted
from attend certain court hearings the media may report. Alternatively, there will be
circumstances where the public are allowed to attend the court but reporting will be prevented.

We shall discuss these in detail.

The court has the power to restrain the reporter in relation in the following manner:

* Postpone the publication of the reports;
* Prevent reporting of names of specific individuals party to the case;
* Power to restrict information relating to children.

There are also certain ‘automatic bans’ which prevent the publication of details relating to a
particular hearing, these are:

* Committal proceedings before the magistrates;
* Hearings concerning sexual offences and indecency;
* Divorce cases;
* Documents made available on disclosure.

The concept that cases should, generally speaking, be in open court was discussed in R v.
Secretary of State for Health ex parte Wagstaffe (2001) I WLR 292 (Dr. Shipman). Where it was held
that without proper grounds at statutory or common law, cases should be open otherwise may amount
to grounds of appeal. The court went on to say that the fact that the case was held in Camera was
irrational.

Breach of court reporting rules is contempt of court and is punishable by a fine and or
imprisonment.

THE OPEN COURT RULE

Lord Halsbury in Scott v. Scott 1913 AC 417 held that:

…Publicity is the very sole of justice…and the surest of all guards against improbity. It keeps
the judge himself, while trying, under trial.

It is on these grounds that the media are allowed to sit in court and are in certain circumstances
allowed to sit when the public are restricted. A-G Guardian Newspapers Ltd (No 2) 1988 3 ALL ER
545 (Press are seen as the EYE of the public).

The Civil Procedure Rules 1999 governs the conduct of civil proceedings Part 39. 2 (1) Civil
Procedure Rules and further clarifies that hearings are to be held in public.

See Macpherson v. Macpherson 1936 AC 177. Here the trial took place at lunchtime in judge’s
library and the hearing was held to be in private. It was held that there was no jurisdiction to
have the trial in camera and therefore the trial was voidable.

OBTAINING INFORMATION

It is a general rule that the public have the right to obtain copies of any civil judgement or
order made in public on payment of a fee.

However, Practice Direction 39 Supplementing Part 39 of the Part 39 Civil Procedure Rules Para
1.12, state that if the hearing took place in private, an application for leave must be made to
the hearing judge to obtain a copy of the judgement.

www.courtservice.gov.uk gives each civil judgement a unique number allocated by the official
shorthand writer. This is free. The site also includes the daily list of cases to appear before
the court.

The list will include:

* Whether the hearing will be held in private;
* The name of the parties
* The appointed Judge;
* Court room; and
* Action number.

Obviously minors and sensitive cases will not be on the list of parties.

There is a fee of £20 p/hr to inspect the claims list in the Commercial Division of the High
Court, which includes names of solicitors, copy of the claim form and particulars of the claim.
These sources become very useful to journalist in obtaining details of a particular case.

PROCEEDINGS HELD IN PRIVATE

The Court has the residual power to sit in private if necessary for the purposes of justice or
possibly, in order to prevent the proceedings being disrupted by disorderly conduct. However, this
is governed by legislation and the common law.

Criminal Law  

Only a small proportion is done in private. E.g. Official Secrets Act 1920, which allows the judge
to clear the court if prejudice to national security.

Civil Law

This is governed by the Civil Procedure Rules and the Administration of Justice Act 1960.

Part 39. 2 (3) of the Civil Procedure Rules sets out when a hearing may be held in private:

* Publicity would defeat the object of the hearing;
* It involves matters relating to national security;
* It involves confidential information and publicity would damage that confidentiality;
* It is necessary to protect the interest of a child or patient;
* It is a hearing made without notice and it would be unjust to any respondent for there to be a
public hearing;
* It involves non-contentious matters arising out of the administration of a trust or estate;
* The court considers it necessary in the interest of justice.

The decision whether to hold the hearing in private is for the judge using common law and
statutory power given to him. Factors that the judge will take into consideration are the
necessity of representation by the media and Article 10 balanced against Article 6 ECHR.

If practice if the door says ‘Private’ it shall mean that ordinary members of the public shall not
be admitted.

Just because the hearing is in private does not mean that the proceedings are secret, other than
cases that are governed by the Administration of Justice Act 1960, reporters may still comment on
the case. However, if they cant go to court how do they find facts? Possibly speak to the parties
concerned. However, the reporter should always bear in mind the principles set out in the Contempt
of Court Act 1981.

ADMINISTRATION OF JUSTICE ACT 1960

Reporting current issues prior to a private hearing will not be contempt of court UNLESS:

* Relating to minors, wardship, adoption, guardianship, maintenance, rights of access to a child;
* Applications under the Mental Health Act 1959;
* National security;
* Secret process, discovery or invention;
* Where the courts prohibit publication of such information.

If the report is prejudicial then it may amount to an offence under the Contempt of Court Act 1981.

PROCEEDINGS HELD IN PRIVATE

A large amount of work is carried out in chambers. These usually concern pre-trial procedure,
mainly used in the Family Court.

Unless there is a sign on the chambers doors, members of the media are permitted where
practicable. If there is not space then the judge should adjourn and allow a member of the press
in (Hodgson v. Imperial Tobacco Limited (1998).

EUROPEAN CONVENTION OF HUMAN RIGHTS

Human Rights Act 1998 – Venables v News Group Newspapers Ltd 2001. Here, the James Bulger
murderers sought injunction to prevent the publication of confidential information that might lead
to their identification. The court held that there was a strong and pressing need for their
confidentiality and convention rights to be protected, to prevent them from harm. This was a
strictly defined exception!!!!

THE POWER TO POSTPONE THE REPORTING OF PROCEEDINGS

S. 4 (2) Contempt of Court Act 1981 states that the court may order the postponement of
publication of any report relating to proceedings. The postponement may be for any period of time
the court thinks in order to avoid the miscarriage of justice.

However s. 4 (2) is exhaustive and the courts have no other inherent power beyond this. R v.
Newtownabbey Magistrates’ Court ex parte Belfast Telegraph Newspapers Ltd 1997 the Times 27 August.

s. 4 (2) has led to criticism and challenge because the courts have made orders on inappropriate
grounds or have made an order for a permanent ban. This has been acknowledged by the Court of
Appeal who state that orders are frequently given unnecessarily. The courts must now give very
serious consideration to issue a grounds under s. 4 (2) ex parte News Group newspapers Ltd.

The following are important definitions:

The Court

‘includes any tribunal or body exercising the judicial power of the state (s. 19) basically any
court or tribunal within the judicial function may give an order to postpone under s. 4(2).

Necessary

I.e. is the order “really needed”? Rather than expedient or useful otherwise in breach of freedom
of expression art. 10 ECHR, thus under s 4 (2) necessary means something more than merely
convenient but must be related to the avoidance of the described risk.      Ex parte Central
Independent Television (1991) – banning of reporting on a trial while the jury considered a
verdict, was unnecessary as the court could have asked the jury to refrain form turning on the
radio or TV.

Substantial Risk

The risk must be substantial.  If the reporting is prejudicial it does not have to serious but it
has to be more than minimal. The courts must consider the length of time between the publication
and the proceedings. A.G v. News Group Newspaper Limited gives the jurors the credit to have the
ability to make their own minds up on the evidence before them.

Proceedings

This includes proceedings before the court, ‘pending or imminent’.

For any Period of Time

Any reporting that is postponed should be defined as to the duration and necessity. Such
postponements may run for a long period of time, mainly not until the conclusion of a trial. The
court may not make an order for any reason other than to avoid prejudice in the proceedings.

WHAT DISCRETION DOES THE COURTS HAVE?

The court has an overriding discretion to make a postponement order, depending on the
circumstances and facts of each case. However, postponements are normal practice, as strict
liability and s. 2 of the Contempt of courts act may not kick in! These are:

1. “a trial within a trial” a prejudicial matter is disclosed to the court while the jury is
absent, confessions, points of law.
2. accused is awaiting further trials. These may be a prejudice to other proceedings – the
publication of damning evidence may be prejudicial to the Defendants case. This only applies to
other pending trials and not prior convictions.
3. may be prejudicial to a co-defendants trial.

Term of the order

Orders under s. 4 (2) must be clear and precise and must be recorded for later reference (Practice
Direction (contempt: reporting restrictions) (1982)). The order must be clear in scope and no
wider than is necessary (MGN v Bank of America) It must also state the reason for the order and
the time limit on it. THE RESPONSIBILITY REMAINS WITH THE MEDIA TO ASSERTAIN WHICH CASE HAS WHICH
ORDER.

POWER TO PREVENT PUBLICATION OF NAMES OF PARTIES

S. 11 Contempt of Court Act 1981 court has the power to prevent the publication of material
including names of participants, arising out of the proceedings held in open court.

Orders for anonymity cannot be applied for under s. 11 where that particular name has already been
disclosed in open court. s.11 should only be invoked in circumstances where it is in the interest
of justice, and that such justice would be harmed if that name was disclosed. This should not be
used to prevent embarrassment or any other similar consequence. R. v. Eversham Justices ex Parte
McDonagh 1988. This case involved an MP with a driving charge. The Magistrates held back the
address to prevent harassment from a former ex wife. However, the Divisional Court held that s.11
should only be used in the administration of justice.

Such uses of withholding names are for blackmail and official secrets. Blackmail – prevent the
party from being blackmailed into not/ or to report on a crime. R v. Social Woker Paul Foot and
published the names of two persons being blackmailed they were both prosecuted as a result.

An individual can apply under s. 11 to have their name anonymous. (R. Somerset Health Authority ex
Parte S 1996. Such an order under s 11 should be in writing and should state its exact scope and
duration, and the reasons for such an order.

There must be a specific order in place otherwise the media cannot be held in contempt.

CHILDREN

Children do not have any specific rights to confidentiality (R v. Independent Television 1994) the
court does however has a general power to restrict the publication of details about children.
There are statutory implementations on restricting publication of children’s details.

Thus, S. 39 Children’s and Young Persons Act 1933 states that the courts have the direction to
make an order to prevent any newspaper report from revealing the:

* name;
* address
* school

of the child or young person

No picture shall be shown of any child UNLESS the court directs otherwise.

The court will balance between the age of the child and the potential damage to him of public
identification, and the welfare of the child. The judge should give reasons for his decision

NO FAMILY PROCEEDINGS MAY BE REPORTED Magistrates Courts Act 1980 s71 (1)

WARDSHIP PROCEEDINGS

S. 12 (1) (a) of the Children’s Act 1960 states that the media may not attend the wardship
chambers. This is not to protect the children but the paternal functions of the court.

YOUNG OFFENDERS

s. 49 Children’s and Young Person Act 1933 states that reports shall not publish:

· names

· Addresses

· Schools

Of young persons under the age of 18 or pictures or any other material that is likely to identify
the child or young person.

These restrictions may be relaxed if the court feels that it is necessary in the interest of
justice. Court may give reasons for lifting the order. The restrictions may also be relaxed after
a conviction. Such dispersion should be made with great care and caution.

NOTE: Under the new law, the Law Youth Justice and Criminal Evidence Act 1999, as soon as the
police have begun criminal investigations the child will be protected from identification.

COMMITAL PROCEEDINGS BEFORE THE MAGISTRATES COURT

s.4 committal proceedings are always an open court unless it would be unjust.

s. 8 (1) Magistrates Act 1980 governs the reporting restrictions at committal hearings, remand
hearings and preliminary hearings. Thus it is only lawful to publish the following:

* Identity of the court and the names of the justices;
* Names, addresses and occupations of the parties and witnesses, and the age of accused and
witnesses;
* Offence or offences;
* Names of Counsel and Solicitors engaged in the proceedings;
* Decision of the court to commit the accused;
* Charges against the accused;
* Date and place of adjournment;
* Arrangements for bail;
* Legal aid granted?

What cannot be reported are:

* Reason for the police opposing bail;
* Magistrates reason for opposing bail; and
* Defendant’s previous convictions.

THE COURT CAN REMOVE THESE RESTRICTIONS IF IT CONSIDERS IT TO BE IN THE INTEREST OF THE PUBLIC.

If you would like more information on court reporting contact Daniel Doherty at
daniel.doherty@lawdit.co.uk