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Justice Wide Open: Mike Dodd - Open and Shut Justice

Justice Wide Open: Mike Dodd - Open and Shut Justice

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Published by: j_townend on Jun 19, 2012
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11/15/2013

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Mike Dodd 71
OPEN AND SHUT JUSTICE
 Mike Dodd 
examines the obstacles faced by journalists seeking toreport the courts
 
The principles of open justice are well established and widely discussed, and the roleof 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  Leigh
1
, Lord Justice Watkins cited with approval Lord Denning’s comments in TheRoad 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 beheard 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 hehas seen and heard. The reason for this rule is the very salutary influence whichpublicity has for those who work in the light of it…
and adding:
…Those observations suffice to emphasise to the mind of anyone the vital importanceof 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 andtheir behaviour in and conduct of the proceedings.
But the practicalities of ensuring that justice is not merely done, but is seen to bedone, continue to cause problems for those journalists who seek to report on thecourts.
 
Reporters regularly spend time in magistrates’ courts, Crown Courts, the HighCourt, and sometimes the Court of Appeal, observing and reporting on trials andhearings covering issues ranging from terrorism, murder and rape to shop-lifting, orallegations 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 separatestatutes which cover the activities of the press. A fair number of these featureautomatic or discretionary restrictions on what may be reported from a hearing or atrial. None of these restrictions, naturally, limits what the member of the public
1
[1987] QB 582 at 591
 
72 Justice Wide Opensitting next to the journalist may say to his chums as he discusses the events of theday in the pub that night – or, perhaps, the musings of the blogger who goes homeand 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 themost basic details, so as to avoid prejudicing potential jurors when the case comes totrial
2
.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
3
, 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
4
.Orders may give anonymity to juveniles appearing in adult courts
5
, while juveniles appearing in youth courts automatically get anonymity 
6
. Courts may giveanonymity to witnesses if they believe that doing so will improve their evidence orco-operation with one party or the other
7
. Victims of sexual offences areautomatically entitled to lifelong anonymity 
8
– and in the near future, no doubt,provisions in the Education Act 2011 which give lifelong anonymity to teachersaccused of offences against pupils in their care will come into force.
9
 So far, one might say, so good; most of these restrictions can be justified, atleast to some extent.The difficulty, however, is not with the law, but with the way in which it isapplied, or, in the terminology of the digital age, with the human interface. As oftenhappens 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 theroot cause of the problem.Magistrates and judges in criminal courts sometimes act as if their powers torestrict 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 wellestablished, courts continually make orders beyond their powers. For example, it iscommon for courts to purport to make orders banning the identification of adults by 
2
See, e.g., section 8 Magistrates’ Courts Act 1980, covering remand and committal hearings
3
Section 4 (2), Contempt of Court Act 1981
4
Section 11, Contempt of Court Act 1981
5
Section 39, Children and Young Persons Act 1933
6
Section 49, Children and Young Persons Act 1933
7
Section 46, Youth Justice and Criminal Evidence Act 1999
8
Section 4, Sexual Offences (Amendment) Act 1976, Section 1 Sexual Offences (Amendment) Act1992. The list of offences in relation to which anonymity for a victim applies was greatly extended by the Sexual Offences Act 2003
9
Section 13, Education Act 2011, inserting section 141F into Part 8 of the Education Act 2002
 
Mike Dodd 73using section 39 of the Children and Young Persons Act, which can only be used inrelation to those under the age of 18
10
. This damages the principle of open justice –and that damage too often remains, because the media find it too expensive to mounta proper challenge.Judges have been known to exercise non-existent powers to give anonymity tothose accused of sexual offences on the grounds that identifying the defendant will‘automatically’ identify the victim. This is a nonsense. To say that a hypotheticaloffender called Artemus Jones raped a woman will not give away his victim’s name oridentity. Neither will saying that the rape occurred in a certain town, or giving otherdetails. In reality the judge is usurping the editor’s position; the legislation makes itclear that the onus is on the media to ensure anonymity for sex offence victims, andneither the 1976 or 1992 Act contains any provision empowering a court to orderanonymity for an adult defendant.The Judicial Studies Board – now the Judicial College – has publishedguidance on reporting restrictions, entitled Reporting Restrictions in the CriminalCourts
11
. The latest edition, published in 2009, superseded separate guides onrestrictions for the magistrates’ and Crown Courts. The guide sets out in detail thereporting restrictions which can be imposed, and the requirements which must bemet. Yet it seems that few courts or judges have encountered this document, or havereferred 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 September2004 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, onPage 6.3, in section on Section 6, Design Data Sheets & Court Room Design, underthe heading ‘3 Elements of court room design: ‘Whether a courtroom is used for aMagistrates’ (section 7), Crown (section 8) or County Court (section 9) there areelements within the design that are functionally similar or identical. These genericaspects are covered here. They include: judges’/magistrates’ bench, clerk’s desk, witness box, jury desk, press desk, exhibits table, advocates’ bench, secure dock, andnatural ventilation of courtrooms.But security staff in courts have been known to refuse to allow journalists intothe body of the court, insisting that they cover cases from the public gallery, where, inmany cases the acoustics are bad, the seating unsuitable, the view restricted or
10
Section 39 (1); see also the Court of Appeal decision in
 R v Southwark Crown Court, ex parteGodwin
([1991] 3 WLR 686; [1991] 3 All ER 818);
11
Available online at: <http://www.judiciary.gov.uk/NR/rdonlyres/5AC4E743-55FE-4E31-9FAB-7BBEC3DF1B89/0/crown_court_reporting_restrictions_021009.pdf >

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