‘In any society which embraces the rule of law it is an essential requisite of the criminal justice system that it should be administered in public and subject to public scrutiny. For this purpose the representatives of the media reflect the public interest,’ wrote the Rt Hon Lord Judge, Lord Chief Justice of England and Wales, in October 2009.
‘However, as is well known, there are a number of statutory exceptions to these principles. Hence the occasions of difficulty and uncertainty which can sometimes arise.’
The Lord Chief Justice’s words introduced new guidelines for Reporting Restrictions in the Criminal Courts, the result of a collaboration between the Judicial Studies Board, the Newspaper Society, the Society of Editors and Times Newspapers Ltd, a document that lays out the principle of open justice [PDF].
Uncertainties arise, I believe, when accessing a reporting restriction or court order: how to find it, whether you should try and locate it, how you could possibly know to ask to access it if you didn’t know it existed. This includes anonymity orders, injunctions and other types of statutory reporting restrictions. Reuters has a good explanation of the risks for UK publishers in its international handbook and warns that ‘if you publish anything that could give rise to a substantial risk of serious prejudice to a fair trial, you are strictly liable.’
But surely you can’t be prosecuted if you violate an order you didn’t know about? Not so for Newsquest’s Wiltshire Gazette & Herald in 2007 which was fined for breaching the Children and Young Persons Act when it identified a 15-year-old boy in a case at Plymouth Magistrates Court. A fair decision? I’m sure readers will be divided.
“Under the strict liability rule we should have made the enquiry,” said Newsquest’s head of legal, Simon Westrop, according to a Press Gazette report at the time. “Equally the courts have an obligation to make sure that the information about the existence of discretionary orders is made available to the press.”
A series of discussions about an English media database of reporting restrictions (an idea Westrop supported) took place between the Ministry of Justice and The Newspaper Society, the Society of Editors, the BBC, ITN and the Press Association. But nothing ever happened. I submitted a Freedom of Information request last month asking whether plans were ongoing.
While much of my request was refused by the Ministry of Justice, its answer did reveal that the idea had been abandoned because the specification could not be agreed.
‘[T]here are currently no plans to develop such a database as we have been unable to satisfactorily resolve a number of key issues,’ the MoJ said.
- Finding the right level of information that will support journalists’ needs but not make the information protected by the reporting restriction public;
- Managing the risk to individuals protected by the reporting restrictions if the data were available in the public domain;
- How to control access to those with a right and need to access it;
- The level of security that would have to be placed onto the IT infrastructure that would be used to host the sensitive information;
- How it would be paid for.
No cost estimate could be supplied, but PA Media Lawyer, when it reported the outcome of my FoI request (registration required), said that talks between the MoJ and media representatives ‘stalled after it emerged that news organisations could be expected to pay what one source described as “eye-watering” subscriptions in order to be able to access the information’.
I hope the dropping of the database does not mean the dropping of the discussion, as this is a very confusing area of law, especially for ill-resourced small online publishers, who are playing an increasingly important democratic role on the English news landscape (whatever Andrew Marr might think).
In the absence of any database, or clear guidelines for bloggers, here are the rules for journalists, as stipulated by the Ministry of Justice:
The reporter can always contact/visit the court where the case is being/was heard and the court will provide any copies of reporting restrictions. If they are uncertain that the person is a journalist they would ask for press card or email showing a press email address.
As media blogger Malcolm Coles reported last year, the MoJ does not seem overly concerned to resolve the issue for online writers who might not have journalistic accreditation or fall into a traditional ‘press’ category. In the meantime, Out-Law.com has a useful piece on the situation, with the advice that ‘publishers and bloggers should take down material from a case once they find out that it is the subject of a reporting restriction’.
Judith Townend is a freelance journalist and MPhil/PhD research student at the Centre for Law, Justice and Journalism, City University London. She blogs at http://meejalaw.com/ and is @jtownend on Twitter.