Recently I found myself with a day free of hearings or pressing work, and decided to spend it legal blogging. The night before the hearing I took a look at the court lists, and identified one with several shortish hearings that (based on the case number and description of the hearing and the time estimate) looked like they might be suitable. My aim was to sit through a day in the life of one judge, and to pick a varied list of short hearings rather than a day long trial or part of a longer trial. As a courtesy, I emailed the judge to let him know I intended to sit in on his list. (For any practising lawyer who wishes to try out legal blogging, I should make clear that under the legal blogging rules, this is not required – as long as you have your practising certificate with you, if you find yourself wanting to pop into a hearing on the hoof, you may do so).
This was the first time I’ve attended court with the legal bloggers leaflet that the Project has recently prepared, and I wanted to see how useful that was in helping things run smoothly. One of the aims of the leaflet was to help explain the scheme to both litigants and lawyers, to reassure them about any worries about privacy, and to help by either avoiding objections being raised, or by enabling them to be dealt with more efficiently if they were raised, by summarising what the rules say about objections.
I attempted to attend four hearings. In each case I signed in with the usher and asked him if he would mind giving the leaflets to the lawyers involved (there were no litigants in person) and explaining that I was in the waiting area and intended to join their hearing. He agreed. I made clear through the usher that I was happy to have a discussion with any advocate if that would be helpful but didn’t want to break into or disrupt discussions, so would wait to be approached.
This was the first time I’ve attended court as a legal blogger and met with any real opposition to my coming in to hearings. In the past I have noted a few faces pulled, and received indications via the ushers of some unhappiness, but nobody has ultimately formally objected to my attendance.
On this occasion, in the course of the day, I experienced the full range of responses. Notwithstanding the range of positions taken, all the professionals I met were courteous throughout.
Agreed not to attend
I was persuaded (quite appropriately) by a polite request from one advocate and by a quiet word from the judge, that the particular sensitivities of one case meant an attempt at attendance would be profoundly unhelpful, and that in any event the facts were so unusual that it would be almost impossible to envisage me being able to report anything at all. I didn’t attempt to attend that hearing. Based on what I was told, it would obviously not have been right to do so, even though from the thumbnail sketch I was given the case would no doubt have been newsworthy (I imagine that a journalist might not have been dissuaded by this sort of informal intervention).
Formal objection – refused access
In a second case I was refused access after objections were raised at the start of the hearing. Prior to this hearing being called on, I’d been in court on one of the other hearings and so hadn’t been able to speak to the advocates beforehand, and I was told that there were objections as we were called into court. I wasn’t told what these were. I knew very little other than that this was a care case that had been called in at short notice shortly before a long trial was due to start – the length of the fixture, the number of parties and the involvement of multiple Queen’s Counsel suggested that this was a complex matter.
It is possible that if I knew what the issue was I would have agreed not to attempt to attend the hearing, but as there had been no opportunity to explore these issues I took the view that I would hear what the parties had to say and deal accordingly.
The carefully worded submissions made as part of the objections to my attendance suggested that there were some particular sensitivities that had arisen recently, causing the case to be called in on what the list showed was a reading day (a day which is marked out for the judge and lawyers to prepare for a case but where the lawyers and parties are not normally expected to attend), though these were not spelt out in a way that I could make sense of (no doubt intentionally so). The decision regarding my attendance was dealt with efficiently and fairly – each party objected briefly (with some reference to the grounds for objection contained in the rules). I then briefly indicated that, whilst I would like to attend (and I would of course abide by the usual reporting restrictions) it was ultimately a matter for the judge to decide, because I was unaware of the substance of what underlay the objections raised. The judge gave a short decision with reference to the rules, and was courteous in acknowledging the legitimacy of my request. I was not permitted to attend and so I exited before the main hearing commenced. My application scarcely took up more than five minutes of court time and I think did not present any great inconvenience. I have no problem with the court’s decision to exclude me in this case.
During the day, I was permitted access to two other hearings however, and was given permission to report some of what I heard in each. Later on, I will write about the substance of those hearings in separate posts, because each of them illustrates issues that are familiar to many family lawyers but which would be unlikely to otherwise be written about publicly. Below I set out a bit about the points of legal blogging interest that these hearings generated from my perspective. It was a really valuable day’s attendance at court, and it has prompted reflection on my part about how best to make legal blogging work well and responsibly. I have learnt a lot.
No objections raised
The first of the hearings I actually sat in on was a care case, and there was no objection to my attendance – in fact my presence at the back of the court was not referred to at all either at the start or during the course of it (often the judge will briefly introduce me and check there are no objections).
At the end of the hearing I asked for – and was given – permission to report the gist of the application I had heard and the outcome of it, on the basis that of course I would not identify anybody involved. It’s always slightly nerve wracking interrupting the flow of a hearing by standing up at the back and having to catch the judge’s eye with a wave or a ‘Woo hoo’ (as the advocates can’t see you), but by this stage I’d already made my submissions from the back of court in the case I’d been chucked out of, knowing that nobody had wanted me to be there – so this was less of a big deal in comparison. Here, I made my request because it seemed likely to be uncontroversial, and I had read the vibes correctly, because it was agreed by all parties and the judge. Although I had already sketched in my own notes what types of information I would need to exclude from any report to avoid the risk of jigsaw identification, nobody required me to spell this out, evidently content that I would act responsibly.
Objections raised but not accepted
The second hearing I attended involved a private law children matter, where the parents and child were all represented. Again, I was permitted to attend, although here this was following formal objections made by two of the parties. The judge heard what they had to say but disagreed. He did not ask for my view before simply saying that :
‘It seems to me if this project means anything it means in this sort of case a sensitive and suitably anonymised blog can be made. I know this case is of vital importance to the parties and they all consider it unique. However the issues are not that different to those in many other cases. ‘(not verbatim – NB the judge did say ‘this project’ but I think from the context and preceding remarks he was obviously referring to the pilot – rather than The Transparency Project more broadly)
This, of course, was to give me permission not only to attend but to write something about the case, which was welcome. Surprisingly, the judge’s remarks immediately prompted some acknowledgment by one of the advocates who had objected to my attendance moments before, that in fact there were aspects of the case which were concerning and that a blog might generate useful debate in the legal community such that ‘some good may come of it’.
The judge then asked everyone to think about what material I should have to facilitate a blog post. He proposed that I should see ‘the judgment’ and that it could be ‘quoted verbatim’. He suggested that we could have a discussion outside to agree the parameters of any anonymisation and if necessary he would rule on any unresolved issues (in the event there were none).
I had already picked up from outside court that there had been some sort of systemic failure in the case, because one of the advocates had assumed (wrongly) that I had attended as a result of a tip off about ‘the significant failures’. In fact I had attended with a view to reporting whatever was in the list that day, even if it was mundane, rather than making a beeline to the sort of hearing I could make a big song and dance about.
What was instructive about this particular blogging expedition was the way in which some of the advocates dealt with my attendance, and some of the arguments they raised both in court, in discussions before the hearing and in email exchanges following.
I think there are some learning points for lawyers to be drawn from these experiences so I think it is important to write them up. I am acutely conscious though, that the attendance at family hearings by journalists or legal bloggers is a rarity, and so many lawyers will be unfamiliar with the rules, and may lack confidence or any experience of engaging with reporters of one kind or another.
It’s easy for me to say after the event ‘well they should have done this or that’, but the truth is there but for the grace of god might we all be when caught by an unexpected issue cropping up in a case with 150 other things going on and needing to be sorted. So this is not intended as criticism of any individual lawyer, more as a case study to help others and to explore how best we can all deal with the challenges that transparency undoubtedly brings.
In the course of my day more than one lawyer referred to my ‘application’ to attend the hearing. The identical rules now applying to legal blogging have been in place for journalists for a decade now. Neither is required to make an application to attend a hearing. They are entitled to attend. If any party wishes to object, it is they who need to make an application, and that must be a reasoned one with reference to the rules. Those rules, by the way, say that a party can object to the attendance of a reporter if it is necessary:
- in the interests of any child concerned in, or connected with, the case;
- for the safety or protection of a party, a witness, or a connected person; or
- for the orderly conduct of the proceedings;
- or because justice will otherwise be impeded or prejudiced by their attendance.
In the course of my attendance at court and in subsequent email exchanges I had to repeatedly correct this with more than one advocate. The rules, to which I had directed them, and the leaflet that I had provided to them, both spelt this out in terms. The leaflet also set out the proper basis for objection to the attendance of any reporter. This isn’t just pedantry on my part – it does matter. If lawyers operate on the basis that a reporter has to justify their attendance, they are not going to be properly focused on the question of whether or not there is a proper basis for their client to object, which may affect the advice they give (and the instructions received as a result), and the effectiveness of any submissions made. And so it was in at least one of the cases I attended.
More than one lawyer attempted to put me off or dissuade me from attending simply with a vague references to ‘the welfare of the child’ and a mention of the word ‘paramount’. This of course is not one of the four bases on which a legal blogger or journalist can be kicked out of a hearing – and I thought it was only fair to point this out and explicitly refer them to the rules – they key point is that there is a necessity test, not just a ‘might be better’ test.
One understandable – if premature – objection to my attendance was that there was a ‘risk that the child would be identified’ by my blog post, and that the child might become aware of it. Although I spent some time with the advocates prior to the hearing attempting to explain the standard reporting restrictions prohibited any attempt by me to identify the child, and that this was all set out in the legal blogging leaflets (and the not at all new law), there seemed to be a deal of difficulty in getting people to separate out my right to attend on a reporting-restricted basis, and any subsequent request for permission to report. I attempted to explain that I was attending at my own risk that I might find there was nothing I could lawfully report (which prompted the response : ‘Well, what’s the point in you attending then?’). I explained that before I could report anything of substance from the hearing I would have to ask permission – and that at that point they could be heard as to the risks of my being permitted to do that.
The objections raised
None of the objecting lawyers in the hearing I actually attended referred any time to those parts of FPR 27.11 which sets out the grounds for objection (in contrast the hearing I had been ejected from). I have to say that I find this quite surprising, not because I expect any family lawyer to be particularly familiar with those rules, but because any lawyer of any discipline should really go back to the rules and the statute at the point when any unfamiliar issue is raised (if necessary asking the judge for a moment to do so) – and in this particular case I had made a number of quite direct attempts to assist by signposting the lawyers to the relevant rules, which were basically ignored. It’s no part of my function as a blogger to point score, which is why I offered my help before the hearing to enable legal submissions to be focused, efficient and to be properly pinned to the law. Sadly, neither the leaflet nor my direct intervention appear to have been effective here.
In court the objections raised included :
- I was making an application to report (I wasn’t – although I did subsequently) but there was concern about using court time to deal with ‘satellite’ rather than ‘more important’ issues (the only satellite issue was the fact that an objection to my attendance was raised without proper grounds).
- Welfare. The child might come to see the blog post about them (not unless there was also an application to relax reporting restrictions – without that it would be a contempt of court and a criminal offence for me to write about the detail of the hearing – so any post would be so bland as to have no bearing on welfare).
- risk of jigsaw ID (not unless I am given permission to report which I haven’t even asked for at this point)
The law is clear that a risk of harm, through identification or otherwise, is something that has to be demonstrated with evidence, not just asserted. It is of course quite impossible to demonstrate a risk of identification where no application has been made to report, nor any details set out of what it is that a reporter wishes to report. The concern floated was entirely hypothetical.
I acknowledge (and know from direct experience) that all the lawyers at court were juggling a number of priorities, and in the last case dealing were with stressed clients in what appeared to be a long running and challenging private law dispute. Obviously, in that context any additional unplanned issue is probably unwelcome – and indeed one of the advocates in the case suggested to me that it would be better if next time I came I gave advance warning. There are some reasons why this is desirable and some occasions where it might be appropriate and necessary (in cases where sufficient is known to see that turning up unannounced might disrupt the smooth running of the case), but part of the purpose behind the pilot when we proposed it was to gain a real sense of the day to day and run-of-the-mill work of the courts rather than just those cases which already turned to make the press. Since legal bloggers include practising and academic lawyers that means we attend when work permits – for those of us in practice that means when a trial comes out, and often at short notice.
By the end of the day, I was left with a distinct sense that some of the lawyers I engaged with were struggling to engage or to hear to what I was saying, perhaps out of defensiveness or anxiety, perhaps out of preoccupation with the substantive issues (it wasn’t an easy case). In fact (although this may not be their perception) I was going to some lengths to try to assist, to avoid disruption or unnecessary stress for them or their clients – and to attempt to divert them from making bad points.
There is a serious point though : If lawyers do not properly familiarise themselves with what the rules are before advising their clients and obtaining their clients instructions to object, because they think its up to the reporter to justify their attendance or that they can dismiss an ‘application’ by waffling about welfare – this is a problem. The suggestion that I should have given advance warning is no excuse. I literally handed the rules to them. No complaint can be made that they were bounced. It is a lawyer’s job to think on their feet. I dare say if it had been a journalist attending court rather than a fellow lawyer, they would not have been so helpful. And I reject the false dichotomy of ‘satellite’ versus ‘important’ issues – if they weren’t important there would be no objection. Since they are important, objections should be properly thought through and not simply pursued because it’s easier than grappling with how privacy can be balanced with the public interest in transparency. Both are important.
Now I have been granted permission to write about the case I will however take great care in writing the substantive blog post and have been in liaison since the hearing by email with the advocates as to the appropriate parameters of any information published in order to ensure that there is no inadvertent identification – and to ensure that the parameters of my reporting are clearly understood and recorded. Given the circumstances in which permission was given, and given that I was also being offered sight of the parties’ closing submissions that it was thought would help me understand the judgment and the ‘significant failure’ referred to, I thought it was essential to ensure that the judge’s oral permission was reduced to writing and I insisted it should be reflected in the order. I offered some general suggestions about what I thought that might sensibly cover, subject to sight of the judgment.
Interestingly, the wording of the relaxation drafted by the lawyers and contained in the order approved by the judge was far more woolly than I would have drafted if I had been representing the parties. I would most likely have insisted on a list of specified pieces of potentially identifying information that should not be referred to in any blog post – at the time that I made some general suggestions about how the order should be framed I had not seen the judgment or submissions that it was suggested I should see, but now I have, I am pretty confident that there are aspects of the material I have been sent which ought not to be published (and which I will not publish), but which the order in fact permits me to include in my post. I wonder whether those directly involved in the case paid proper attention to the contents of those documents when drafting the order. I will be circumspect about the detail I will include in my blog post: I had decided before I even sought permission that I would not name the judge, the court or the lawyers, that I would not specify the age of the child and even in the hearing I could identify a number of other features that I could see I should leave out of my account because they might be identifying.
I hope that the publication of my blog posts in due course will reassure those involved that legal blogging can be done appropriately and to good purpose, will diminish the professional wariness of it that still persists, and will mean that in future when I attend court the leaflets will be made use of – both to support the lawyers in their work and to inform the litigants whose cases I am attending.
UPDATE 7 NOV : Two further blog posts about each of the hearings I attended on this day can be read here :
and here :
Feature pic : Four Corners Duncan C on Flickr (creative commons – thanks)