Briefing updates

Some changes have been made to the briefings on the topic briefings in advance of the 1003MAPA law test (2019). They are duplicated here.

Some of the briefings under Other Topics have been cut back to the bare essentials to aid revision, or made private so they are not visible at all. Key facts from the Open Justice briefing have been absorbed into a cut-down briefing on the courts.

Criminal courts

This briefing has been renamed and drastically cut down to exclude a mass of information not needed for the test. There is new information on why court coverage matters:

Open justice is a fundamental, ancient principle in England and Wales. It means that justice should not only be done, but should be seen to be done. The public have a right to be present at most court hearings. The news media are seen as playing an important public-scrutiny role in the courts, so they have some additional privileges. News reports:

  • help people to understand the law, and how justice works
  • build public confidence in the justice system;  
  • make it less likely that witnesses will lie in court (they would be found out)
  • make it less likely that the law will not be applied properly. 

Anonymity

The following paragraph has been changed to include a reference to “Section 45” orders:

The law gives temporary anonymity to:

  • Children and young people appearing in a youth court (until they are 18)
  • Children and young people in the adult court, if a “Section 45” order is made under the Youth Justice and Criminal Evidence Act 1999. 

Privacy

Some material has been greyed-out or highlighted in burgundy to aid revision.

Students are advised to read the full briefing for an overview, but then pay particular attention to the Naomi Campbell case, the public interest justification for breaching privacy, the attitude to sexual relationships (they’re generally private – even when they’re with prostitutes), and the reasonable expectation of privacy – especially in public places. Children have a greater right to privacy, especially regarding pictures and video – but it’s not an absolute right.

New or revised material includes:

The Naomi Campbell case: key points

The Mirror showed pictures of the model Naomi Campbell leaving a drugs therapy session. She sued for breach of privacy. The court found:

  • There WAS a public interest justification for exposing her drug problem
  • Reason: she was a role model who claimed not to use drugs
  • But the pictures were deemed to breach privacy
  • Reasons: pictures are considered more intrusive; and
  • a drug problem is “medical” – which is considered private
  • Also: The pictures might have discouraged her from seeking further help
  • Naomi Cambell’s vulnerability was a factor in ruling on privacy

Privacy in public places

If information is in the public domain, it is not usually private. People usually do not have a reasonable expectation of privacy if they do something in a public space where they know people may see them, or even film them.

But McNae’s Essential Law says there may be a reasonable expectation of privacy in public places when someone: 

  • is ill
  • is in distress 
  • has an accident
  • is vulnerable
  • is a child (including the children of celebrities)

 

Contempt of Court

(On Tommy Robinson) …The Attorney General, Geoffrey Cox, later announced that Mr Robinson should face a new trial (expected early May 2019). Perhaps with social media in mind, he said: “I remind everyone that it is an offence to comment on live court cases.”

A timeline for reporting

Restrictions on reporting a crime will vary as a case progresses:

  • The crime is committed: the media can report freely
  • Someone is arrested/charged: the case is active; reports must avoid prejudice
  • Preliminary hearing in the magistrates’ court: the “eight points” can be safely reported, along with non-contentious material
  • A full hearing: fair, accurate and contemporaneous reports must stick to what is said in court while the hearing continues
  • A not-guilty verdict: the case is not active once the final verdict is given; the media can report freely
  • A guilty verdict: the case is technically active until sentencing but the jury is discharged so it is considered safe to run background reports, unless the judge orders otherwise

When a case becomes active: what can be reported

The basic facts of a crime can still be reported once a case has become active, as long as they are not likely to be disputed in court. So a newspaper can still report that a robbery took place, and where and when it happened, and that someone has been arrested (but not that “the robber has been arrested”, because that says the arrested person is guilty). But some detail, such as whether a particular weapon was used, might be unsafe.

Simply naming an arrested person is not contempt, so long as guilt is not implied – which would also pose a risk of defamation if the person is later released without charge.

In crimes involving a death, the inquest and funeral can also be reported, along with tributes to the victim (as long as they do not prejudice the trial).

Victims can be named; but once court proceedings have started, restrictions might be imposed. Alleged victims of sex offences, modern slavery and female genital mutilation have automatic anonymity for life.

When a case becomes active: what CANNOT be reported

Based on past convictions for contempt, the following kinds of information about a suspect are likely to pose a substantial risk of serious prejudice:

  • Reference to past convictions
  • Suggestions of dishonesty or bad character
  • Evidence linking them to the crime
  • Any other suggestion they are guilty

Other material that might give rise to contempt includes:

  • A witness’s detailed account of the crime – once the case is active
  • A photograph or physical description of the suspect, in case there is a dispute about the identity of the person who committed the crime. The defendant might claim in court that they were not the person caught on CCTV, or that a witness was mistaken.

…Strict liability

“Strict liability” contempt creates substantial risk of serious prejudice to an active case.

It is called strict liability because journalists can be guilty even if they did not know their report might prejudice a case, though there is a defence if they can show they had no reason to suspect proceedings were active, having taken all reasonable care to check. 

This usually means that journalists handling a crime story should make a final check just before a story goes to press or goes out on air. This can be a challenge for broadcast journalists writing “overnight” bulletin material, ready to be broadcast early in the morning – often before the police can be called.

It has been known for judges to abandon a trial because reporting has made it impossible for it to be fair – usually meaning a fresh trial, with all the expense and trauma that involves.

…Journalists can report a case while the hearing is still going on, and be protected from a defamation claim by absolute privilege – as long as reports are accurate, fair and contemporaneous. Fairness means, at the very least, saying that the defendant denies the charges. It might also mean reporting the defence case if you have previously reported the prosecution case. If the defendant has pleaded guilty or been found guilty after a trial, then it would be fair to include details of any mitigation (a plea for a lenient sentence, often because of the defendant’s circumstances). 

However, it is still possible to influence witnesses and colour their evidence – perhaps by interviewing them for in advance for a background piece – so there is still danger.

…And if a reporter failed to discover reporting restrictions were in place, there would be no defence at all. Notices about restrictions are usually posted outside a courtroom.

There is also a risk of defamation, if the arrested person is later released without charge: they might be able to sue if they can show that it was implied they were guilty.

The eight points

Cases sent to the Crown court for sentencing

Magistrates can only send people to prison for up to six months. If they think a longer prison term may be appropriate, they can choose to hear a case and then send it to the Crown court for sentencing. If this happens, the hearing has already begun and proceedings in court can be fully reported.

Remember that the eight points set out in law what can always be safely reported: but it is considered safe to report that the defendant intends to plead not guilty, as well as details such as “the defendant spoke only to confirm his identity”.

Defamation

Some of the information relating to qualified privilege is no longer greyed-out, meaning it is likely to come up in the 2019 test.

 

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