There has always been a balancing act between Articles 8 and 10 of the European Convention on Human Rights (right of privacy and right of freedom of expression respectively) as to whether a court hearing should or could be heard in private and whether the parties should or could be anonymised.
Obviously for the Press, the more hearings that are heard in private, the less potential newsworthy stories may come to fruition. However, what should be the test for whether a hearing is held in private?
The Government has recently implemented new rules on hearings and the publication of orders for anonymity and private hearings, all of which seem to suggest a move towards fewer hearings being held in private. According to the Ministry of Justice, the reason behind these changes is an intention to reinforce the principles of open justice. So far so good?
The changes are made to (apologies in advance for the boring legalistic part!) Part 39 of the Civil Procedure Rules. The main changes are to CPR 39.2, with the introduction of a new rule making it clear that consent alone will not be a sufficient basis for a hearing to be held in private, with an emphasis on hearings only being held in private where necessary to secure the “proper administration of justice”.
This must be a step in the right direction, as just because the parties consent to a hearing being held in private, surely cannot be sufficient grounds to prevent and restrict freedom of expression. These amendments to the Rules demonstrate further acknowledgement from the Judiciary of the vital role the Press play in the administration of justice. As we all know, reports of this nature are vital, not only for the preservation of freedom of expression and also because the public have a right to know about certain court cases.
The principle of open justice is already stated in different guidance and has been established in case law, however, the introduction of this provision under the Civil Procedure Rules takes this one step further and provides a clear and unambiguous point of law on which the Press can rely.
Another interesting change to Part 39 is the introduction of CPR 39.2 (5). In circumstances where a court does order that a hearing should be held in private or that a party or witness is anonymised, a copy of the court order should be placed on the UK judiciary website. The most interesting part for the Press and other media outlets is that non-parties can apply to have these orders set aside or varied.
Although there is already case law which has established that non-parties can apply to set aside anonymity, the introduction of a formal right to do so in the Rules should provide a welcomed streamlined process.
Although none of this is particularly ground breaking, I do think it is a welcomed addition in the media world, as it reinforces the Government’s apparent attitude and willingness to help promote and reinforce freedom of expression.
However, as always with court reporting, it is imperative that all the normal rules are followed, including, for example, whether any reporting restrictions are in place!
Happy court reporting!