Part 7 - Open justice (and exceptions), rights to information from courts and to case material

Question 1

What is expressed in Scott v Scott?

Answer 1

That the fundamental rule/principle in common law is that court proceedings are in most circumstances open to the public and media.

Question 2

What does Attorney General v Leveller Magazine Ltd state about the principle of open justice?

Answer 2

Departure from the principle is only justified if the administration of justice would otherwise be ‘frustrated or rendered impracticable’.

Question 3

What are the general, societal benefits of open justice?

Answer 3

• It promotes public confidence in and respect for the administration of justice in all types of proceedings, civil or criminal; deters inappropriate behaviour on the part of the court; and opens to scrutiny the process of justice
• it enables society to judge the quality of justice administered in its name and whether the law needs modification
• it allows the public to scrutinise the processes by which criminal cases are investigated and brought to trial
• full, contemporaneous reporting of criminal trials in progress promotes the values of the rule of law
• it puts pressure on witnesses to tell the truth
• it can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with one or more of the parties’ or witnesses’ identity concealed
• publicity about criminal trials, including convictions, and the identities of defendants, is a deterrent to anyone considering committing crime
• it reduces the likelihood of uninformed, inaccurate comment and rumour about the proceedings, including what is said in them
• it enables the exposure of ‘matters of public interest worthy of discussion other than the judicial task of doing justice between the parties in the particular case’

Question 4

What are the common law exceptions to the open justice principle?

Answer 4

Departing from the open justice rule by excluding journalists and the public from a court case or part of it is only justified in common law:

• when their presence would frustrate the process of justice
• when unchecked publicity would defeat the object of the proceedings
• when the court is exercising a parental role to protect the interests of vulnerable people

Question 5

What is the meaning of the term ‘in private’ as regards a court hearing?

Answer 5

It usually encompasses both the term ‘in camera’ and ‘in chambers’.

In camera: when the public and the media are excluded from all or part of the main hearing in a case. The hearing is effectively being held in secret.

In chambers: when a hearing, usually a preliminary one in a case, is held in the judge’s chambers or another room rather than a formal courtroom and is not in public.

Question 6

How does the Magistrates’ Court Act 1980 uphold the open justice principle?

Answer 6

Section 121 states that magistrates must sit in open court when trying a case unless there is a statutory exception to this requirement, and must also sit in open court when considering jailing someone, unless there is a statutory exception to this requirement.

Question 7

What does the Children and Young Persons Act 1933 state about attendance at youth court cases?

Answer 7

Section 47 states that the public cannot attend, but ‘bona fide’ reporters can.

Question 8

Where are cases heard if they are dealt with in the single justice procedure?

Answer 8

They are heard in private and in the absence of the defendant.

Question 9

What are cases heard in the single justice procedure?

Answer 9

Those which are summary and for which the penalty cannot be a jail term, and in which the defendant is 18 or older, and has pleaded guilty by correspondence and not objected to the case being dealt with in the SJP, or has not responded to the notice of prosecution.

Question 10

What are some examples of offences dealt with in the SJP?

Answer 10

• speeding
• driving without insurance
• TV license evasion
• train fare evasion

Question 11

What does Criminal Practice Direction I state about making notes in court?

Answer 11

The default position in criminal courts is that anyone (and therefore any journalist) can make notes of a hearing on paper or by ‘silent electronic means’ including in the public gallery, unless the court specifically bans this because it could interfere with the administration of justice.

Question 12

List some grounds of banning notetaking in court.

Answer 12

There is suspicion that it is being done to intimidate a witness or to enable dishonest witnesses to collude on evidential detail, but neither ground is likely to apply to a journalist.

Question 13

Which ruling can be cited if a journalist is forbidden to take notes in any civil court or inquest?

Answer 13

Ewing v Cardiff and Newport Crown Court, even though the ruling concerned a Crown court case.

Question 14

What does case law state on the right to know the names of magistrates?

Answer 14

Case law says a court must give the media and public the names of magistrates. Lord Justice Watkins said in the High Court: ‘There is, in my view, no such person known to the law as the anonymous JP.’

Question 15

What does rule 5.8 of the Criminal Procedure Rules state about what information about criminal cases should be normally supplied?

Answer 15

Anyone, including journalists, should normally be supplied by the court officer with the following information about any criminal case at a magistrates’ court, or Crown court which is ongoing or in which the verdict was not more than six months ago:

• the date of any public hearing in the case
• each alleged offence (charge)
• any plea entered
• the court’s decision at any public hearing, including about bail or the sending of the case to another court
• whether the case is under appeal
• the outcome of any trial and of any appeal
• and ‘identities’ of the prosecutor, the defendant, the lawyers, the lawyers’ addresses, and the identities of the judge or magistrate(s)

Question 16

When supplied with information about criminal cases, what should the defendant’s ‘identity’ be construed to mean?

Answer 16

It should include age and address as well as name, as official guidance to court staff makes clear.

Question 17

When asking for information about a court case, how can the request be made?

Answer 17

The request for these details may be made orally and no reason for the request need to be stated, and the guidance makes clear the request can be by phone.

Question 18

When asking for information about a court case, what details must a court officer also supply, according to the Criminal Procedure Rules?

Answer 18

Details of any reporting or access restriction ordered by the court.

Question 19

What requests for court information must normally be in writing and what other requirement is there?

Answer 19

Request for any other information other than that which must be supplied, or for copies of case material referred to in the public proceedings of any case, must normally be in writing and must explain why the information is required. The court will decide whether such information and/or material will be supplied.

Question 20

In written requests for case material, which judgement should journalists cite?

Answer 20

Cape Intermediate Holdings and Guardian News and Media judgements, making clear why such access to and publication of the material would advance the open justice principle.

Question 21

When are there special arrangements when requesting case material in which the journalist does not have to give a reason for the application as regards recent cases?

Answer 21

In respect of applications by accredited journalists for certain types of case material in SJP cases.

Question 22

What must a journalist normally be supplied with regarding cases dealt with in the SJP?

Answer 22

Under rule 5.8, by means of arrangements in a protocol approved by the Lord Chancellor, an accredited journalist must normally be supplied, on request, with copies of some types of material from any case being dealt with in the single justice procedure or which has been dealt with in the SJP within the previous six months.

Question 23

What sort of information must a magistrates’ court normally supply as regards cases under the SJP?

Answer 23

The types of material which under the protocol the court officer at a magistrates’ court must normally supply, in response to such a request, and in addition to the basic information specified in rule 5.8 are a copy of the prosecution ‘statement of facts, or if there is no such statement, a copy of each witness statement, and of ‘any defence representations made in mitigation’.

Question 24

Under protocol how would requests for material from SJP cases be made?

Answer 24

Under the protocol the request would normally be made by phone or email to the regional Court and Tribunal Centre run by Her Majesty’s Courts and Tribunals Service rather than to the court.

Question 25

Does a reason for wanting case material from SJP cases need to be supplied?

Answer 25

No reason for wanting the material needs be supplied by the requesting journalist but that it is best practice to cite the rule and protocol in the request.

Question 26

What may material from SJP case include?

Answer 26

E.g. images from traffic cameras.

Question 27

What are skeleton arguments?

Answer 27

They are documents used in both criminal and civil cases in which each side sets out the bases of their case.

Question 28

What did the Supreme Court’s judgement in the Cape Intermediate Holdings case establish?

Answer 28

That the default position in law is that as regards any court a journalist can have access to case material for a ‘serious journalistic purpose’, such as coverage of the relevant case, provided that the material has been referred to in the court’s public proceedings.

Question 29

Does a journalist have to have attended the session in which the reference was made or each session of the case to be successful in making a request for case material?

Answer 29

No.

Question 30

What may case material include?

Answer 30

Documents such as witness statements, experts’ reports and skeleton arguments, and images or footage which are evidential exhibits.

Question 31

When may the right of access to case material be overridden?

Answer 31

If the court decides that such disclosure of material would harm the process of justice or a legitimate interest of anyone else, such as a party in the case.

Question 32

When may a request for access to case material not be successful?

Answer 32

If the court decides that access to such material should not be granted because, for example, of national security, the confidentiality of the material or to protect the privacy of a child or adult.

Question 33

What should any request for case material to any type of court cite?

Answer 33

The Supreme Court judgement and the Court of Appeal’s judgement in the Guardian News and Media case.

Question 34

What does the right of access to case material not depend on?

Answer 34

Whether the requested type of material is specified in any such Direction or rule concerning such access.

Question 35

What did the Supreme Court say in the Guardian News Media judgement?

Answer 35

The court considering such a request for case material should consider if granting such access to the material would advance the open justice principle.

Question 36

What should a journalist state when making a request to see case material?

Answer 36

A good reason or reasons why his/her consideration and publication of the material would aid the public’s understanding of the case and/or help achieve another of the societal benefits of open justice.

Question 37

What should a journalist be aware of regarding the Supreme Court ruling on access to case material?

Answer 37

The Supreme Court ruled that if the court granted such a request, the requester should be expected to pay the reasonable cost of provision of the material, e.g. if it needed to be photocopied, but that it could be supplied in digital form.

Question 38

What does Part 5B of the Criminal Practice Directions say?

Answer 38

• the opening notes, written submissions and skeleton arguments used by counsel in criminal courts should normally be provided to journalists who want them to report cases contemporaneously
• other case material can be provided to journalists at the discretion of the court
• a request for access to case material should first be addressed to the party who presented them to the court and that if that party – for example, the prosecution – refuses, the request can be made to the court
• the responsibility for complying with any reporting restrictions rests with the journalist who receives such documents

Question 39

What is a ‘statement of case’?

Answer 39

The claim form, particulars of claim, defence, and also any counter-claim or reply to the defence.

Question 40

When may a journalist reporting a civil case inspect and obtain a copy of the statement of case?

Answer 40

If the relevant claim has been listed for a hearing or all defendants have filed acknowledgements of service or defences, or if judgment has been entered (given), rule 5.4C of the Civil Procedure Rules normally allows a journalist reporting a civil case to inspect and obtain a copy of the ‘statement of case’.

Question 41

Under what rule may a journalist inspect during the course of a civil trial witness statements which are evidence-in-chief?

Answer 41

Rule 32.13 of the Civil Procedure Rules.

Question 42

What can journalists obtain under rule 5.4C of the Civil Procedure Rules?

Answer 42

A copy of the case’s judgement if the case has been heard in open court, which is the norm.

Question 43

What does a judge in a civil case have discretion to allow journalists to do?

Answer 43

See skeleton arguments, and ‘written openings’ used by counsel and other types of case material.

Question 44

What should a journalist cite if there is an objection to the journalist having access to the material specified in the Rules as normally to be provided, or to other case material which the journalist has applied for access?

Answer 44

The journalist should cite the Supreme Court judgment in Cape Intermediate Holdings and the Court of Appeal’s judgment in the Guardian News and Media case, and make clear in the application why granting access to the material would advance the open justice principle.