Courting Publicity – The Public’s Right to Hear 

Last week saw the release of a Justice Committee report on a subject close to our hearts – Court Reporting in the Digital Age.  The report examines the barriers to open and transparent justice and the public’s right to learn of, or personally experience, cases heard across the justice system.

Its findings will come as no surprise to those of us, whether members of the media or general public, who seek access to civil and criminal court proceedings. The process of availing oneself of the written documents in a case to allow for a comprehensive understanding of the facts is truly antediluvian and seemingly deliberately opaque – made worse by the introduction of online only hearings. Finding out if reporting restrictions apply in a case can equally prove problematic.

Parliament deserves credit for at least recognising there is still, in 2023, an access and transparency problem in our judicial system and so commissioning the study. The principle that justice should be administered in public was rightly recognised throughout the report as paramount, to be restricted only in limited circumstances: “Fair, accurate and contemporaneous media reporting of proceedings should not be prevented by any action of the court unless strictly necessary” [para 5] and recognising “the media are the ‘eyes and ears of the public’ in court proceedings” [para 21]

Witnesses

Thoughtful and constructive submissions were received from representatives of all interested parties – the judiciary (from magistrates through to the Lord Chief Justice); representatives from HMCTS; journalists; academics; trade bodies; justice charities; media standards and investigative organisations; commercial legal information providers; solicitors and barristers.  

Together, they helped the Committee form a detailed set of conclusions and recommendations – that are likely to be totally overlooked by the MoJ for lack of funding.  Was it ever thus.

However, were they enacted in a parallel universe, the proposals may not solve all ills but would certainly improve the public’s exposure to justice meted out in its name. In the process, they might improve the public standing of both the judiciary and the media itself, tasked with reporting complex or disturbing cases but these days hampered by a combination of ignorance or antipathy to the rights of the public.  

The Information Gap

Witnesses gave troubling evidence that publishers have significantly cut back on funding for reporting court cases, both locally and nationally, despite the obvious interest in their outcomes.  Few can afford to send reporters to attend court daily throughout a trial, without a guarantee that copy will be filed.   

This, of course, means the information gap can usefully be filled by litigation PR experts – our job is sometimes to alert media to, other times to educate journalists on our clients’ cases, highlighting the positive, mitigating the negative, not just through trial or post judgment, but most usefully throughout the litigation timetable. 

Sometimes, and rather less welcomingly, this information gap risks being filled in criminal cases by the police and CPS, whose press releases, we are told, are not always wholly accurate, despite an increased reliance by journalists on their content [para 28].

Solutions

So what should be done to improve transparency? The most obviously pressing recommendation is the improved use of IT in both recording and disseminating information on hearings, case files, judgments and appeals.  

  • A single digital portal is recommended which the media and public could use to access information. The US PACER (public access to court electronic records) system should be its model. It should include a centralised database of reporting restrictions on cases.
  • AI-powered transcription could be piloted to see whether this could reduce the cost of producing court transcripts. Sentencing remarks in Magistrates Courts might be routinely transcripted but all Crown Court sentencing remarks should be.
  • The Lord Chancellor and Lord Chief Justice should publish a paper setting out the public’s right to witness court hearings and have access to relevant documentation in the digital age.
  • MPs and education establishments should be encouraged to visit their local courts to develop a truer understanding of how they operate.
  • With respect to the family courts, there should be a review of section 12 of the Administration of Justice Act 1960. Section 12 should be replaced with a much more targeted measure that respects the principle of open justice.
  • Care must be taken in the digital age (particularly given the rise in citizen journalism where individuals are not trained in the specialism of court reporting), to uphold the principles of fairness and quality of justice.
  • The new Reporters’ Charter is welcomed, but there should be a similar one for the public setting out social rights and responsibilities when it comes to accessing information from the court.
  • His Majesty’s Court and Tribunal Service should ensure that the requisite resources are provided to enable the establishment of an anonymisation unit that facilitates the publication of at least 10% of Family Court judgments without the risk of identification of the parties involved.

So there’s much that could, and should, be done to maintain the public’s right to witness personally, or by proxy, the vital work of the courts in England and Wales. Until then, if you want your case heard and for it to have half a chance of being accurately reflected, give us a call!

By Melanie Riley

Tuesday 24th January 2023

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