With rather appropriate timing given the recent controversy surrounding the “secret trial” challenge in the Court of Appeal earlier this month, the Judicial College have now published their planned revision of the guidance on Reporting Restrictions in the Criminal Courts.
The guide, which has been written in conjunction with the Media Lawyers Association, the Newspaper Society and the Society of Editors, last published in 2009, now incorporates the various changes in the law which have taken place over the last five years.
The purpose of the guide has always been to provide practical advice to the judiciary and the media on the applicable legal principles that govern what can and cannot be reported concerning proceedings in the Criminal Courts.
So, what’s new?
Well, actually, quite a lot. Some are more minor alterations made to reflect changes such as the fact that committal proceedings in the Magistrates Courts are now to be referred to as “allocation and sending proceedings”.
The most notable change is that the Court no longer has discretion as to whether or not they will listen to representations from the media making challenges to restrictions that have been imposed. Now, the Court is required to allow representations from the media before granting any restrictions except for exceptional cases where they may make an order but must invite the media to make representations at the first available opportunity. It is also stated that the burden in relation to a challenge to any reporting restriction lies with the person making the application for the restriction to be applied; this represents an important presumption in favour of the principle of open justice.
Alison Saunders, Director of Public Prosecutions has said that the new guidance provides “a helpful reminder to all those concerned that reporting restrictions should only be imposed where absolutely necessary”
In addition, a heavier emphasis has been placed upon the relevance of the guidance to social media platforms such as Facebook and Twitter. It is now clear that in general terms, the reporting restrictions that apply to the traditional print media apply equally to broadcasters and individual users of social media.
In light of this, the guidance now sets out the strict liability rule in relation to contempt, principally that it is a contempt of court to publish anything to the public which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced, even if there is no intent to cause such prejudice. As we all know, ignorance of the law is no defence…
Also now included in the guidance is the automatic reporting restriction that prevents the identification of any teacher who is alleged to have committed a criminal offence where the complaint is made by or on behalf of a pupil. This restriction can be varied or lifted on application and automatically ends where proceedings against the teacher are instituted.
As well as changes to the current law, the guidance also details potential changes to the law which, although not currently in force, may have a significant effect on how certain matters can be reported in the future. For example, if enacted, the Criminal Justice and Courts Bill 2001 will create a provision allowing a single magistrate to sit anywhere out of court and decide and sentence certain cases based purely on the papers. This provision would be applicable in cases where there has been a guilty plea or a failure to respond to the statutory notification but nonetheless, it represents an exception to the open justice rule and would certainly limit the access that court reporters have to those sorts of case.
Although the issue of this new guidance is unlikely to mean that the granting of questionable reporting restrictions will be a thing of the past, what it does represent is a succinct codification of the most recent and upcoming changes to the law which should prove a useful aid to the press and judiciary alike.
Court reporters and editors should look to familiarise themselves with the new rules and for those that are interested, the full guidance can be found at – http://www.judiciary.gov.uk/publications/reporting-restrictions-in-the-criminal-courts/
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This remains more of a wish list than a useable guide, unfortunately, when clerks can still tell magistrates that any mention of a child automatically ‘triggers’ a Sec 39 order.
An example this week: a mother charged with drunkenly neglecting her pre-school age children.
Clerk tells bench that because the toddlers are under 18 ‘we need an order.’
An attempt to challenge this by citing the guidance (age alone is insufficient reason / pressing social need etc) plus a successful but expensive legal challenge in similar circumstance, coupled with an offer not to name said children, was cut short by the clerk, who instructed the bench that this was irrelevant and demanded that they issue the order .
The clerk also invited the bench to remind the press that naming ‘other parties,’ presumably the mother, would contravene the order.
Of course, the bench duly announced ‘we make the order because the case involves children.’
No specific persons mentioned and nothing committed to writing.
It is also still sometimes argued by a clerk that if a child happened to witness a crime (regardless of whether they’re involved in proceedings) then a vague, catch-all ‘Sec 39′ applies.
Sound familiar?
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