X Media Law: 14 Challenging reporting restrictions Flashcards
how does the senior judiciary view the media vis-a-vis restrictions?
[3]
- accepts media knows reporting restrictions laws quite well
- encourages lower courts to consider media opinions
- JSB guidelines 2009 confirm media representations important
what are the routes media can take to lift court restrictions?
[3]
- application to the original court
- judicial review
- appeals under s159 of the Criminal Justice Act 1998
step 1 when challenging restrictions
[2]
- ensure you know the legal basis of the restriction
- ask court clerk or judge’s clerk if unsure
step 2 when challenging restrictions
[2]
- 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
step 3 when challenging restrictions
[3]
- 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
Tony Jaffa’s top tips to challenging court restrictions
[4]
- act quickly
- be polite
- have a good relationship with your court clerks
- only challenge when you think you’ve got a good case
acting quickly tips (Tony Jaffa)
[3]
- 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
how far does terminology go? (Tony Jaffa)
[3]
- 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
step 4 when challenging restrictions
[1]
- judicial review (go to the court above)
drawbacks of judicial review
[2]
- it’s sloooow (and story might devalue in this time)
- it’s expensive and you might not get your costs back
specific appeals against Crown Court restrictions
[2]
- s159 Criminal Justice Act 1988
- any ‘aggrieved parties’ can make these (including press)
what can s159 be used to lift?
[4]
- 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
drawbacks of s159
[4]
- 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)
common grounds for challenging restrictions
[7]
- 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
s11 challenges
[3]
- 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.)
challenges to orders under Sexual Offences (Amendment) Act 2003
[1]
- order allows ‘substantial and unreasonable restraint’ on reporting, and it’s in public interest to report
challenges to pleas in mitigation restrictions
[2]
- no ‘substantial grounds’ for believing statement untrue
- facts relevant to case
challenging s46 orders (vulnerable witnesses)
[3]
- 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
challenging s49 Youth Court proceedings
[3]
- serious/persistent offender
- offending affected large number of people
- publicity could help prevent further criminal activity
challenging s39 ID’ing child in adult courts
[5]
- 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
when might you incur costs?
[3]
- 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)
should invalid order be followed?
[1]
- yes? of course, yes!
