COURT REPORTING OPEN JUSTICE? 5/7/2018

OPEN JUSTICE PRINCIPLE Scott v Scott (1913) Reasons for Open Justice: Courts under scrutiny Encourages witnesses Discourages perjury Advances knowledge of courts and law 5/7/2018

JUSTICE & SECURITY ACT Justice & Security Green Paper - introduced in October 2011. Acknowledged concern that some cases are unsatisfactorily resolved because some of the evidence is high security material. Act introduces new law to allow some evidence to be heard in ‘closed proceedings’ to avoid a ‘catch-22’ position 5/7/2018

REASONS FOR LEGISLATION Previous situation was ‘unsatisfactory for everyone’ For full report See Hansard 19th October 2011. Legislation has generated considerable discussion/criticism e.g. threat to ‘open justice’ Note - this relates to CIVIL proceedings 5/7/2018

Article 6 ECHR Contains qualifications to right to fair trial Is Art 6 wider/narrower than UK law? Are the qualifications to right to fair trial in open court too narrow? Consider the competing arguments – see Robertson & Nicol/Barendt Press have better access to courts than the public e.g. family hearings 5/7/2018

When can proceedings be held in private? Possibility of disorder in courtroom Identity of a witness needs protection Public hearing is detrimental to future prosecutions A case concerns prosecutions under the Official Secrets Acts - see trials of Keogh & O’Connor and Wang Yam - even extends to speculation about content. 5/7/2018

CATEGORIES OF CONCERN Future trials (s.4 Orders) Children in adult courts Committal proceedings Victims of sexual attacks Victims of Female Genital Mutilation – anonymity for life Family Proceedings Court of Protection cases 5/7/2018

CRIMINAL PROCEDURE RULES 2013 (PART) 16 summarise courts’ powers to impose reporting restrictions Emphasise importance of public justice Require that press be notified & given opportunity to make representations Define procedure for achieving this 5/7/2018

CHILDREN S.39 ORDERS - important for anonymity of children but note new changes R v Central Criminal Court ex parte Godwin & Crook (1995) R (JC & RT) v Central Criminal Court (2014) Mrs R v Central Independent TV (1994) Some proposals included in broadcasting codes even though not brought into law. 5/7/2018

REASONS FOR CONTROL Does material interfere with child’s upbringing or development? BBC v Kelly [2001] 1 All ER 323 – order not granted Nottingham Council v October Films The Times 21st May 1994 – order granted Re Z [1997] Fam. 1 5/7/2018

JIGSAW ID What is it? See Editors’ code and Ofcom codes for what should be avoided Applies to Children and victims of sexual attacks- difficulties - no ‘bright lines’ Z v NGN Ltd.[2013] EWHC 1371 (Fam) See KM case 5/7/2018

Trials held ‘in camera’ The Wang Yam trial - murder trial R v Incedal – ongoing. See restrictions on accredited journalists attending. Appeal to CA in October 2015 5/7/2018

S. 4 (2) orders Proposals in hand to introduce online recording of these orders so that the media will know what is in force. 5/7/2018

Privacy rights of arrested persons PNM v Times Newspapers Ltd & Others (2014) Oxford sex ring case. Claimant had been named in trial several times. Media ‘ride- alongs’ - See ACPO/College of Policing guidance. - name suspects ONLY when charged and NOT arrested except in exceptional circumstances e.g. threat to life & limb/help prevent /detect crime/public interest or other policing purpose. 5/7/2018

Rights of Arrested person - 2 See example of Paul Gambaccini On bail for over 12 months before being told no further proceedings Effect of publicity of arrest Should there be privacy of arrested person until charge? See arguments for and against 5/7/2018

FAMILY PROCEEDINGS Concern over the lack of reporting rights leading to miscarriages of justice – see e.g.Brandon Webster case Pilot Scheme introduced 2009 Children, Schools and Families Act 2010 Act passed through parliament very quickly just prior to General Election. Unlikely to come into force in present format. 5/7/2018

FAMILIES continued ‘It is important that the family justice system is properly understood and commands public confidence. At the same time, there is a clear need to protect the privacy of vulnerable children & adults involved in cases in the family courts…the govt. wants to look closely at the changes the act would introduce before any decision on implementation is taken’ (Min. of Justice) 5/7/2018

SO…… Can forget this act for now. Instead see : ‘Media Access & Reporting’ Commended by President of the Family Division & Director of Society of Editors Available online from Judiciary website Also a new report published in May 2012 ‘Confidentiality & Openness in Family Courts’ (available online) 5/7/2018

SIR JAMES MUNBY’S SPEECH Has called for greater openness in family courts and also regarding judgments. Families should also be able to talk to press if they wish. ‘Transparency in the Family Courts and Court of protection’. 5/7/2018

SOME CASES R(Y) v Aylesbury CC [2012] EWHC 1140 (Admin) – anonymity of child defendant under s.39- child’s welfare must be balanced against public interest in open justice. R (Press Association) v Cambridge Crown Court [2012] EWCA Crim 2434 – No power to order anonymity of defendant to protect ID of victim. Protection of victim matter for reporting with care by press. 5/7/2018

Other areas of concern Anonymity in inquests – Litvinenko case Press access to court documents and hearings Courts Martial – Marine A in recent murder case – now named Publishing reports of proceedings in private Private hearings/closed material 5/7/2018