This week the Ministry of Justice issued Guidance to staff on supporting media access to courts and tribunals as “part of a wider effort to build stronger working relationships between courts and the press and maintain the principle of open justice as we increasingly digitise court services.”
Given our interest in accurate court coverage we regard the publication of this guidance as a very positive development, and one which should help to prevent some of the problems reporters have faced in recent months when attempting to cover hearings in court. Launching the guidance, the CEO of Her Majesty’s Courts and Tribunals Service (HMCTS), Susan Ackland-Hood reiterated:
“Open justice is a fundamental part of our court system and impartial media reporting of the work of our courts and tribunals is an important way of maintaining public confidence.”
The first thing to note is that the guidance is issued to court staff, not to the media themselves, or to judges. So it covers questions about who can attend what sort of hearing, where they can sit, what they can ask for in terms of documents, and so forth. It is not concerned with how judges deal with reporting restrictions, or how the media should go about their business. However, it does usefully identify relevant legislation and other sources of regulation which might be referred to by the media or court staff in resolving an issue.
There is a general introductory guide or summary, and then a number of separate guides for different types of court. Though such guidance may have been circulated internally before, this is the first time it has been published openly, which is itself a triumph of transparency.
The general summary makes clear who its intended readership is, i.e. the sometimes embattled staff of our courts and tribunals:
“No guide can be comprehensive, but we hope this one will cover most of the typical media situations you are likely to encounter. We will regularly review it and would welcome feedback too. But we hope it equips you with the skills and advice you need to work effectively with the media.”
The guidance goes on to explain that journalists “come in all shapes and sizes” and work in a variety of ways for different types of media. It maintains a distinction between journalists and other members of the public attending court hearings.
“Journalists are trained professionals and understand the laws relating to what can and cannot be published” – whereas
“Members of the public (including those identifying themselves as bloggers etc) may be unaware of legal issues relating to court reporting and could find themselves in contempt of court if they use social media to report information heard in open court. Again, it is not for you to ‘police’ this but if you have any concerns about members of the public, speak to your manager for advice.”
But of course, just as journalists come in all shapes and sizes, so do bloggers, some of whom may be hell bent on breaching reporting restrictions in contempt of court while others may be qualified lawyers, such as those covering the courts as part of the legal bloggers pilot. (The latter may well know more than some media reporters about relevant reporting restrictions.) Open justice means anyone can attend a court hearing in open court, not just journalists; but a distinction may be relevant in relation to access to documents and when it comes to attending hearings in private in some (eg family) courts.
The guidance assumes that in most courts there will be a designated area for the press to sit – away from those in the public gallery. But in many modern courts there simply aren’t such designated seating areas. The guidance makes clear that anyone sitting in the public seating is allowed to take notes – there is a recent case about this – unless it appears to be for an improper purposes (such as to brief a witness yet to be called). This should address those recent stories about people being told they can’t take notes or being asked what they are doing in court in the first place.
Significantly, none of the guidance appears to deal with reporting of online courts or virtual (video-enabed) hearings, of the sort which we have been led to expect will be more frequently the norm, as a result of the current £1bn-plus HMCTS Reform programme.
There are separate, more detailed guides for criminal courts, civil courts, family courts, and tribunals. We looked at the family courts guide as being most relevant to our work.
According to this, “Only accredited media representatives are allowed to attend family proceedings which are in private.” That is correct under the existing Family Procedure Rules 2010, except for the fact that there is currently a pilot scheme under Practice Direction 36J, under which accredited legal bloggers enjoy equal rights of access to private hearings as journalists.
The guidance states that
“The only document that you may give the media is the cause list. No other court documents are to be shown or given to journalists. Those who wish to see other documents must apply to the court.”
However, later on the same guidance says that
“It is important that where reporting restriction orders are made the media are told about them. If a journalist asks about other aspects of a case and you are aware that a reporting restriction order has been made you should bring it to his/her attention. Journalists should be given a copy of the order upon request.”
So that would seem to be another court document that CAN be given to journalists, not just the cause list.
In any event, the cause list is often not very informative. The guidance explains what can and can’t be included on the cause list: for example, in cases involving children, the parties’ names must be redacted or anonymised. “Where party names are not automatically deleted from the printed cause list, they must be removed.”
Apart from documents, there is advice about the kind of information that can and can’t be given out in different types of case, eg ‘Divorce, dissolution of civil partnership etc cases’, or ‘Cases involving children’. There is a list of relevant legislation under each of these, which rather worryingly includes something referred to as Children and Families Bill 2013. We assume this means what became the Children and Families Act 2014, but as this received the royal assent four years ago it is a bit strange that the citation is so out of date.
Something else that is now seriously out of date is the Judicial guidance for the family courts on media access and reporting (cited at the end of the document) which dates from 2011 and is now in urgent need of updating. They might have done better to refer (and link) to our own Media Guide – Attending and reporting family law cases (PDF), which was published on this site in March 2017.
In conclusion, while we welcome the publication of the guidance, we suspect it may benefit from some revision and updating, perhaps once HCMTS has received some of the feedback it says it would welcome. A point which has been made elsewhere (eg by Penelope Gibbs of Transform Justice) is that it perpetuates a distinction between ‘official’ media reporting and ‘informal’ legal blogging and citizen journalism which is increasingly blurred in real life. Another point worth making is that the guidance is still fundamentally focused on the reporting of traditional physical court hearings, while HMCTS is busy transforming its estate with a view to increasingly delivering a more virtual (video-enabled) or even online court service. In future, more attention will need to be focused on how such proceedings can still deliver open justice, not just for the media, but also for the public at large.