Coventry students preparing for the 2018 first-year law test need not read this briefing as part of their revision. It provides valuable context for understanding media law and especially court reporting, but will not feature in the test.
Courts of justice sit in public. The principle of open justice is an ancient one. In modern times, it boils down to this:
It is not enough that justice is done; it must be seen to be done.
In court and in society, journalists are the “eyes and ears” of the public. News coverage of court cases helps maintain trust in the courts and ensure that justice is indeed fair and properly conducted.
This is why journalists have a right to be present in most courts, most of the time – even in youth courts, from which the public are excluded. There are exceptions – for reasons of national security, say – but these can be fiercely contested.
Lord Atkinson, in 1913, said a public hearing might be humiliating or painful to the accused and to witnesses, or even indecent and harmful to public morals. But this is tolerated, he said, because it ensured “the pure, impartial and efficient administration of justice” and the best way of winning public confidence.
A benefit is that a witness who gives evidence in public is less likely to lie. If the case is reported by the media, they would be found out.
In 1998, Lord Woolf said public proceedings meant courts were less likely to behave wrongly, and might result in evidence becoming available through publicity. It also made uninformed or inaccurate comment less likely.
Another benefit is that the public are more likely to know the law if journalists are free to report it.
Some cases are heard in private. In these cases, journalists commit contempt of court if they later discover what was said and report it, or publish stories based on documents relating to the case.
The normal protections against contempt or defamation claims (fair, accurate and contemporaneous reporting) will not apply to stories based on private hearings. There is no defence.
Journalists can challenge a move to exclude them from a hearing (they might not succeed), or from reporting part of a case, on human rights grounds. They can cite Article 10, the right to freedom of expression, which protects the rights to impart AND to receive information. Courts give this very high regard. There is also held to be a public interest in open justice itself.
Traditionally, newspaper journalists have claimed a duty to report on what happens in the courts. Financial pressures and stretched resources mean newspapers can no longer uphold this “duty”, so the argument is weakened.
The duties of a journalist in respect of open justice are the normal rule: their reports must be fair and accurate.
There is also a responsibility to gather all the facts in a case, but increasingly, this does not happen.
Andrew Langdon QC wrote in 2017 that stories were being based on judges’ ruling or sentencing remarks, obtained by journalists “who have picked up only fragments of a story”.
He said: “What is missing is an accessible account by a reporter of what happened at the trial; the allegation, the rebuttal, the dynamic, and the personal consequences for the parties or the witnesses or others affected by what is unfolding in court.”
The result was that the public did not know how the law operated, and myths grew up about how cases were decided. Social media activists were able to put out falsehoods.