As part of the decision made by the President of the Family Division in the appeal by TP member, Louise Tickle in February, Sir Andrew McFarlane stated that guidance to courts would need to be issued to address the uncertainty that existed if a journalist or legal blogger entitled to attend court asked for leave to publish information from the hearing. Draft guidance was published in March, and following a consultation period the final version has now been issued. The Transparency Project responded to the consultation (See here). The new guidance was published on the Judiciary website on 29th October, although it is dated 3rd October.
As anticipated, the new guidance clearly sets out the procedure by which an application by a reporter (an accredited journalist or a legal blogger under the PD36J pilot) can apply to have the very restrictive provisions of section 12 Administration of Justice Act 1960 varied or lifted to allow them to write about a particular case. It is in very similar terms to the draft.
The six-page guidance outlines the current law then makes nine points which we summarise as follows:
A formal application to the High Court is not often necessary. This would be time consuming and expensive. Where a reporter is in attendance, they can make the application verbally. Giving notice beforehand is encouraged but not essential. If they want to apply after the hearing, they can apply by email, although of course all parties would have to be notified. We’re pleased to see para 8(d):
Courts should be astute to assist reporters seeking to attend a hearing, or to relax reporting restrictions,and should provide them with relevant contact details of the court office, the judge’s clerk and the parties where requested (unless there is good reason not to do so).
We think this might be where the Law Society Gazette got the idea that courts should ‘go out of their way to help’ reporters – although that’s perhaps rather exaggerating the term ‘be astute’.
Having followed Louise Tickle’s appeal, we know that part of the reason that Louise’s team proposed this guidance was to assist and give confidence to judges, lawyers and litigants – not just journalists – to deal with these unfamiliar scenarios more appropriately, efficiently, and with the minimum disruption and stress possible.
Another very helpful point is that the judge should ask the reporter at beginning of the hearing if they are going to ask for a variation or lifting of section 12 and if not, at that stage, add that they can ask later on. This is a new point not featured in the original draft, and from our experience of attending hearings as legal bloggers we think it would be very helpful, although in most cases we’ve attended we have done so ‘on spec’ and therefore don’t know whether we are likely to make such an application until the hearing is underway.
Points 2 and 3 set out the procedure where an order about publication has to be agreed between the partes or decided by the judge. Point 4 reiterates that the judgment may be sent to BAILII. Point 5 explains that lifting section 12 in part may mean that additional restrictions will need to be put in place to ensure non-identification of the child and family. The balancing exercise (see below) and the way this should be briefly explained in the court judgment are in points 7 and 8. Much of this reflects the explanations given in the book published last year by our trustees, Doughty, Reed and Magrath: Transparency in the Family Courts ; Publicity and Privacy in Practice Bloomsbury 2018. Relevant passages in the book were cited by barristers in Louise’s case. The final point in the guidance clarifies that reporters would not expose themselves to a risk of any costs being awarded against them unless they behave reprehensibly.
The balancing exercise is expressed in the guidance as balancing privacy and transparency by way of Articles 6, 8 and 10 of the European Convention on Human Rights, with the child’s best interests a primary consideration. In other words, rights to a fair trial, respect for private life, and freedom of expression are given equal weight at the outset, with the child’s welfare being a major factor but not one that might override all others. The ‘welfare principle’ in the Children Act 1989 does not apply to a decision about section 12. This is a welcome clarification.
In our consultation response we had suggested that the draft should make the balancing exercise clearer, that it should adopt the collective term ‘reporter’ to cover both journalists and legal bloggers, and that it should make reference to the possibility of disclosure of documents. All of those suggestions were adopted.
and the INFORRM blog. We hope that it encourages more reporters to take up responsible direct reporting from family courts.
Image: Louise Tickle and Sanchia Berg at the Royal Courts of Justice.
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