Challenging The Courts

Question 1

Why may a challenge be needed?

Answer 1

Because a court may try to restrict reporting of a case when it has no power to do so or to impose a restriction which is valid but wider than necessary

Question 2

What does rule 6.2 of the criminal procedure ruled say?

Answer 2

That a court should not impose a restriction unless each party and any other person directly affected - including media - is present or has had an opportunity to make representations.

Question 3

What does rule 6.8 of the criminal procedure rules say?

Answer 3

If a reporting or access restriction is made the court officer should record the reason for this

A notice should be displayed somewhere prominent in the court rooms vicinity and communicated to reporters

Sec 6B.6 and 6B.7 says a copy of the order should be provided to any local or national media and court staff should be prepared to answer any inquire about a specific case

Question 4

What is the first step of challenging the court?

Answer 4

Refer to

The clerk
Your editor
Essential law for journalists 
Your company lawyer
Bernie

Question 5

What is the second step of challenging the court?

Answer 5

Formal approach

Involves your publication writing to the court setting out the legal basis of your argument

Explain the public interest aspect

Question 6

What is the third step of challenging the courts?

Answer 6

You may ask the courts decisions to be reviewed by the queens bench divisional court - part of the high court for judicial review

This normally involves hiring lawyers and there is a court fee - if the challenge fails the Journalist or the organisation may have to meet some or all of the costs

Question 7

Which legislation allows the media to appeal a judges reporting restriction?

Answer 7

Sec 159 of the criminal justice act 1988

Question 8

What is sec 11 of the contempt of court act 1981?

Answer 8

Power to order that a name or other information should be withheld from the public during proceedings

Usually opposed to defendants being given anonymity and may object if it’s used for witnesses for invalid or insufficient reasons

Only bans publication of a name or matter in connection with proceedings - doesn’t stop the media referring to someone by name

Cannot be made if the name or matter has already been mentioned in public proceedings

May only be made when it’s necessary in the interests of the administration of justice

Question 9

What is an issue with banning publication of a defendants address?

Answer 9

It could create the risk that the public may wrongly link somebody else with the case but who may have the same name as the defendant.

Question 10

What does sec 11 of the contempt of court act 1981 not protect?

Answer 10

Shouldn’t be used for the comfort and feelings of a defendant - not for embarrassment

To protect a defendants business

To protect a defendants children

To protect reputation or safety

Question 11

What is the section 4(2) of the contempt of court act 1981?

Answer 11

Courts have power to postpone publication of media reports of all or part of a case of the postponement is necessary to avoid a substantial risk of prejudice to later stages of the same case or to other cases pending or imminent.

Question 12

What is a postponement order?

Answer 12

When restrictions no longer applies the case receives substantially less coverage than it would otherwise have done especially if the order means that the coverage of a sequence of trials has because of the practicalities of media production to be compressed into one days publication on the day that the last trial ends.

Question 13

When should a sec 4(2) order be made?

Answer 13

Only when the risk of prejudice to current or pending proceedings is substantial

Question 14

What are the 3 principles that the court of appeal set out on section 4(2) orders?

Answer 14

1 unless the perceived risk of prejudice was demonstrated no order should be made

2 the court has to ask whether an order was necessary under the ECHR

3 applications for postponement orders should be approached as follows:

i) would reporting give rise to a substantial risk or prejudice? If not that would be the end of the matter
ii) if there risk still existed would an order eliminate it? If not there’s no necessity to impose a postponement
iii) the judge might still have to ask whether the degree of risk of prejudice contemplated should be regarded as tolerable in the sense of being the lesser of two evils when compared to the harm which a 4(2) order could cause to the benefits of open justice

Question 15

What is the only occasion that prosecutors can ask the CPS to impose a section 45 order?

Answer 15

When the public interest and the article 10 rights to receive and impart information are outweighed by the rights of the juvenile defendant, witness or victim

Question 16

What are lord justice simon browns 7 principles use din a criminal court to decide whether or not to revoke a sec 39 order?

Answer 16

1) the court should consider whether there are good reasons for allowing the juvenile defendant to be named
2) it will give considerable weight to the offenders age and the potential damage to the juvenile of public identification as criminal before he/she has the burden of adulthood
3) must regard the juveniles welfare
4) the prospect of being named and shamed is a powerful deterrent to them and others
5) there is a strong public interest aspect in open justice and in the public knowing as much as possible about court proceedings - including identities
6) the importance of publishing information varies at different stages of a trial eg after a defendant has pleaded guilty and sentence there is a higher public interest
7) the fact that an appeal has been made may be a material consideration

Question 17

What does concerned with proceedings mean?

Answer 17

Actually the defendant, witness it victim - being a family member doesn’t make you concerned

Question 18

When would lifting anonymity in youth courts be particularly appropriate in respect of a juvenile defendant?

• when should you

Answer 18

• whose offending was persistent or serious
• who offending had an impact on a large number of people
• in the circs when alerting people to their behaviour would help prevent further offending

Question 19

What occasions are not in the best interests of justice to lift a section 49 anonymity ban?

• when shouldn’t you

Answer 19

When publicity might put the offender or their family at risk of harassment or harm

When the offender was particularly young or vulnerable

When the offender was contrite and ready to accept responsibility for their actions

When public identification of the offender would reveal the identity of a vulnerable victim

Question 20

What are the benefits of publicity in juvenile anti social behaviour cases?

Answer 20

• public reassurance that action was being taken to protect the community’s human rights
• enforcement - local people have the information to identify individuals who breach such orders
• deterrence