X Media Law: 14 Challenging reporting restrictions

Question 1

how does the senior judiciary view the media vis-a-vis restrictions?
[3]

Answer 1

• accepts media knows reporting restrictions laws quite well
• encourages lower courts to consider media opinions
• JSB guidelines 2009 confirm media representations important

Question 2

what are the routes media can take to lift court restrictions?
[3]

Answer 2

• application to the original court
• judicial review
• appeals under s159 of the Criminal Justice Act 1998

Question 3

step 1 when challenging restrictions

[2]

Answer 3

• ensure you know the legal basis of the restriction

- ask court clerk or judge’s clerk if unsure

Question 4

step 2 when challenging restrictions

[2]

Answer 4

• draw court’s attention to the reason you think restrictions should be lifted
• usually by asking clerk to pass a note to the magistrates/judge

Question 5

step 3 when challenging restrictions

[3]

Answer 5

• ask your publisher to set their lawyers on the court
• should be able to do this within 24 hours
• courts don’t have to hear their representations, but unlikely to refuse

Question 6

Tony Jaffa’s top tips to challenging court restrictions

[4]

Answer 6

• act quickly
• be polite
• have a good relationship with your court clerks
• only challenge when you think you’ve got a good case

Question 7

acting quickly tips (Tony Jaffa)

[3]

Answer 7

• at least make it KNOWN you want to challenge
• if you want to talk to editors/lawyers, say you’ll submit challenge in writing
• if case ends (e.g. it’s a single day) court may refuse to lift ban because they have no jurisdiction anymore

Question 8

how far does terminology go? (Tony Jaffa)

[3]

Answer 8

• know the piece of legislation you’re challenging
• technicalities (My Lord/Your Honour) don’t matter so long as you’re POLITE
• don’t go nuts on legislation you don’t understand, you’ll undermine yourself

Question 9

step 4 when challenging restrictions

[1]

Answer 9

• judicial review (go to the court above)

Question 10

drawbacks of judicial review

[2]

Answer 10

• it’s sloooow (and story might devalue in this time)

- it’s expensive and you might not get your costs back

Question 11

specific appeals against Crown Court restrictions

[2]

Answer 11

• s159 Criminal Justice Act 1988

- any ‘aggrieved parties’ can make these (including press)

Question 12

what can s159 be used to lift?

[4]

Answer 12

• s4(2) and s11 orders CCA
• any order restricting access to Crown Court trial
• any order restricting publication of Crown Court trial
• any order restricting publication of derogatory statements made during mitigation pleas

Question 13

drawbacks of s159

[4]

Answer 13

• right of appeal NOT automatic, must apply to Court of Appeal
• notice also has to be given to trial judge, clerk, both parties, other ‘interested persons’
• must be submitted in writing (press can’t state case in court)
• takes a long time (though Court of Appeal can suspend case)

Question 14

common grounds for challenging restrictions

[7]

Answer 14

• NOT substantial risk of prejudice (just embarrassment)
• risk of prejudice could be dealt with another way
• risk of prejudice is not substantial
• order would not remove risk anyway
• does not cover proceedings current imminent or pending
• order amounts to permanent ban, s4(2) only temporary
• public interest in open justice is strong

Question 15

s11 challenges

[3]

Answer 15

• banned details already revealed in open court
• withheld from public, but court doesn’t have legal power to do this
• not necessary in interests of justice (embarrassment, etc.)

Question 16

challenges to orders under Sexual Offences (Amendment) Act 2003
[1]

Answer 16

• order allows ‘substantial and unreasonable restraint’ on reporting, and it’s in public interest to report

Question 17

challenges to pleas in mitigation restrictions

[2]

Answer 17

• no ‘substantial grounds’ for believing statement untrue

- facts relevant to case

Question 18

challenging s46 orders (vulnerable witnesses)

[3]

Answer 18

• subject of order is not a witness
• not issued to prevent fear or distress (just embarrassment)
• court hasn’t accounted for unreasonable restraint on reporting

Question 19

challenging s49 Youth Court proceedings

[3]

Answer 19

• serious/persistent offender
• offending affected large number of people
• publicity could help prevent further criminal activity

Question 20

challenging s39 ID’ing child in adult courts

[5]

Answer 20

• open justice not properly balanced with need to protect
• child is very young
• child is dead
• child is not ‘concerned in’ proceedings
• order specifically bans publication of adult’s ID

Question 21

when might you incur costs?

[3]

Answer 21

• if challenge is made after trial begins (esp. if order likely for that case) then costs are higher and media asked to pay
• if challenge made before proceedings, usually no costs even if unsuccessful
• always argue paying costs (press has right/duty to challenge)

Question 22

should invalid order be followed?

[1]

Answer 22

• yes? of course, yes!