Court reporters accustomed to challenging reporting restrictions need to familiarise themselves with new rules that came into force last week.
Part 16 of the Criminal Procedure Rules 2011 sets out a formal procedure for imposing, varying, and lifting certain reporting restrictions in criminal cases.
Broadly the rules, which came into force on 3rd October 2011, apply whenever a court is considering:
• a discretionary reporting restriction;
• restricting public access to a hearing; or
• varying or removing an automatic reporting or access restriction imposed by legislation.
They apply to both Magistrates’ Court and Crown Court proceedings. There are two particularly important points to note.
First, media organisations and their reporters now have a formalised right to be given an opportunity to attend or make representations, as each will be deemed to be “a person directly affected” by reporting restrictions, under the rules. This is something that can be waved in front of any bench or judge that seems unwilling to hear from the press on such open justice issues.
Second, anyone seeking to have a reporting restriction imposed (e.g. the defence or prosecution) and anyone seeking to vary or lift a restriction (e.g. journalists) must now “notify” certain specified persons. Reporters or their lawyers will now have to find a way to notify others, such as the court office, the CPS, the defendant’s legal representatives, and any such other persons as the court directs.
Other salient points are as follows.
Part 16.2 helpfully provides that the court “must have regard to the importance of dealing with criminal cases in public and allowing a public hearing to be reported to the public”. Courts must not exercise their powers regarding the relevant types of reporting restrictions “unless each party and any person directly affected is present or has had an opportunity to attend or to make representations”.
This is a significant boost for open justice.
Part 16.3 says the court may require an application to be made in writing instead of orally; consider an application or representations made orally instead of in writing; and dispense with a requirement to give notice or to serve a written application.
If the prosecution or defence seek an order restricting reporting or public access, they are required, under Part 16.4, to “apply as soon as reasonably practicable; notify each other party, and such other person (if any) as the court directs; specify the proposed terms of the order, and for how long it should last; explain what power the court has to make the order, and why an order in the terms proposed is necessary”.
Under Part 16.5, any person (e.g. reporter) who wants the court to vary or remove a reporting or access restriction “must apply as soon as reasonably practicable; notify each other party, and such other person (if any) as the court directs; specify the restriction; and explain, as appropriate, why it should be varied or removed”.
No particular form of application is specified. A letter would suffice. No time limit is set.
Where any party, or person directly affected (e.g. the press), wants to make representations about an application for a reporting or access restriction, Part 16.7 provides that he “must serve the representations on the court officer, the applicant, each other party, and such other person (if any) as the court directs; do so as soon as reasonably practicable after notice of the application; and ask for a hearing (if that party or person wants one) and explain why it is needed.”
Such representations must explain the reasons for any objection and specify any alternative terms proposed.
Part 16.8 requires the court to record the reasons for its decisions, and, as soon as reasonably practicable, arrange for notice of the decision to be displayed somewhere prominent in the vicinity of the courtroom and communicated to reporters by such other arrangements as the Lord Chancellor directs.
This provision will be welcomed by the many reporters who have experienced courts that are slow to put their orders into writing, let alone their reasons.
Finally, a point for those who use Twitter or other online services to report court cases: Part 16.9 states that any person who wants permission to use in court “a device for…communicating by electronic means” must “apply as soon as reasonably practicable; notify each party, and such other person (if any) as the court directs; and explain why the court should permit the use or publication proposed”.
Once the changes have bedded in and court reporters have got used to notifying relevant parties that they will be challenging a particular restriction, it is likely the new system will be welcomed by the media as a formal framework for scrutinising and opposing restrictions on open justice.
The procedural rules are available at: http://www.legislation.gov.uk/uksi/2011/1709/contents/made
They supplement guidance on the substantive law in this area, which was issued on 1st October 2009 by the Judicial Studies Board and is available at: http://www.judiciary.gov.uk/publications-and-reports/guidance/crown-court-reporting-restrictions-guidance-2009
- Solicitor Nigel Hanson is a member of Foot Anstey’s media team. To contact him telephone 0800 0731 411 or e-mail [email protected] or visit www.footanstey.com.
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A boost for open justice? That naively ignores the fact these rules cut both ways. Reporters must “notify” of their challenges too. As things stood in the past, although we were sometimes ambushed with reporting restriction applications in the courtroom, we too could surprise applicants by mounting cogent, well-argued challenges. Now, if we have to give constant prior notice of our challenges, those applying for restrictions will nearly always have the upper hand. They will invariably know more about cases and defendants than reporters, especially in local court cases which are not well known or high profile. How is a local court reporter supposed to explain, in advance, why a reporting restriction should be lifted or not imposed when that reporter has little or no prior knowledge of the case before it is opened in court? And what of the administrative rigmarole of making sure that the notice is given to all the right people? Perhaps this new system might help media organisations to compose their arguments in advance, but personally I prefer simply standing up in court and thrashing the matter out with representations to a judge from both sides, resolving the matter quickly and efficiently. My working day as a local court reporter is spent hearing cases and writing up stories, leaving little to no time for drafting letters or “serving representations” on court staff or applicants. I suspect these rules may raise at least as many problems as they solve, hinder as much as help, and may end up favouring those who seek to restrict reporting while being little more than a straitjacket for reporters.
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The people who come up with these rules do not live in the real world. Hard-pressed prosecutors juggling 20 files in a morning and defence solicitors who have only a passing knowledge of media law are never going to get a letter together.
I only hope the mags court where I work ignores these rules as creating a huge amount of unecessary work.
Where I have notice either myself or the solicitors do write letters to the court and defence.
But as court reporter said, when I have no notice as is usually the case, it is thrashed out in the court.
PS Also the CPS is no longer allowed under its own guidelines to take a neutral position on applications to lift restrictions on identifying youths in court. It will make it much harder to convince magistrates in criminal cases.
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All realistic & valid points. But hopefully reporters can take the extra rigmarole in their stride and be ready to give at least very basic printed/handwritten notice & reasons, by hand in court on the day, to prosecution defence & clerk (rather than simply orally, as was often possible before). The significant new safeguard in Part 16.2 should not be overlooked. Courts are no longer permitted to slap on a reporting restriction when you are not in court & have not been afforded an opportunity to attend or make representations.
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