Update 13 April 2022:
The Government has turned down a request from journalists to write specific provisions ensuring open justice into the Judicial Review and Courts Bill.
However Justice Minster James Cartlidge said in a letter to Evening Standard courts correspondent Tristan Kirk that HMCTS would be happy to discuss enabling broader access to court documents and information for journalists than there has been before.
Cartlidge said: “The purpose of the court measures in the Bill is to help improve the efficiency of our courts by avoiding unnecessary hearings… The principle of open justice will of course be maintained in the implementation of these measures.”
He added: “HMCTS would welcome further discussion on the content of the media register to address any concerns you have about gaps in information and to help avoid members of the media from having to rely on contacting court staff for further information.”
Kirk told Press Gazette in response: “This is a step in the right direction from the government and an important declaration that open justice cannot and should not be lost in the drive for efficiency.
“While it’s disappointing that the government hasn’t chosen to write into law a commitment to open justice and transparency when undertaking such radical reforms, we are keen and willing to take up the offer of new ways for journalists to access information and documents from the courts system.
“It seems to me that there will still be a lot of hard work needed to bring the reforms in line with the level of openness we currently have with magistrates court first appearances. If the government and the courts turn out not to be able to deliver the Minister’s commitments and promises, they must surely have to consider axing the reforms altogether, even at this late stage.”
Original story 14 March 2022:
Journalists fear a new bill reforming parts of the court system could result in “justice in the dark” – and a “legal grey area” for reporting the information that is handed out to the media.
The Judicial Review and Courts Bill, which is nearing the final stages of its journey through Parliament, will allow first magistrates’ court appearances in some circumstances to become online administrative hearings.
In these cases, journalists would miss out on hearing the first details of the allegations from prosecutors, seeing the defendant in the dock, and knowing contemporaneously if the defendant admits or denies a crime, why any bail conditions were imposed, and why the crown or magistrates’ court was chosen for the case moving forward.
Journalists will receive information about what happened in online plea and allocation hearings, but not as immediately as if they were being covered live – and fears remain that cases could be missed even after they have moved up to the Crown Court.
Evening Standard courts correspondent Tristan Kirk has organised a letter to HMCTS opposing the plans which has been signed by more than 100 journalists and industry representatives from across the UK. PA, BBC News, Newsquest, The Guardian, Reach, Daily Telegraph, JPI Media, Daily Mail, i, The Times, Financial Times, ITN, The Independent, GB News, Sky News, Reuters, The Sun, and the Law Society Gazette are among the publishers represented.
Kirk told Press Gazette the bill amounted to “an act of vandalism” towards open justice, especially as the magistrates’ court first appearance is “a pretty pivotal moment to quite a lot of high-profile cases”.
He said: “I see a substantial impact across the board simply on court reporters knowing about cases at all, let alone knowing about what’s gone on in the hearing itself. It’s incredibly frustrating to see this is something that’s being contemplated… [with] no thought as to how to protect the open justice principle in an adequate way.”
‘An affront to open justice’
PA law service editor Sian Harrison told Press Gazette: “The proposals to deal with important hearings behind closed doors and without scrutiny are an affront to open justice – the principle which ensures the public’s right to know what’s going on in our courts.
“I and many of my colleagues at PA Media, who cover courts every day and know how crucial it is for the press to be the eyes and ears of the public on our justice system, are gravely worried about the effect on court reporting if this Bill is passed in its current form.
“Without first hearings in magistrates’ courts people would never learn key details, undoubtedly in the public interest, from cases involving serious offences.”
As an example, Harrison pointed out that if the first hearing of MP Jo Cox’s killer Thomas Mair in June 2016 had been conducted administratively, it never would have been revealed that he gave his name as “death to traitors, freedom for Britain”.
Similarly Kirk noted that the two police officers who took photos of murdered sisters Bibaa Henry and Nicole Smallman and shared them on Whatsapp told the court on their first appearance via their lawyer that they planned to plead guilty and were “sorry beyond measure for the pain that they have caused”.
“It’s possible that they would have been desperate to avoid a court hearing to minimise the amount of embarrassment and shame that they had to go through, and you can see that for a defendant who is accused of something terrible why wouldn’t they want to do less court hearings?” Kirk said.
“But what we would lose is, like they apologised to the family publicly for what they had done, said they were going to plead guilty… clarified exactly what they had done… It’s important stuff to know.”
He demonstrated the type of colour and information that first appearance hearings can provide by scrubbing it out of some recent court reports (see Twitter thread below).
A new law passing through Parliament poses a major threat to #OpenJustice
Left – how the first court appearance of terrorists Hashem Abedi & Ahmed Hassan looked.
Right – The effect the Judicial Review and Courts Bill.
I'd urge everyone to ask their MP why this is being allowed pic.twitter.com/fGgQMPiZr8
— Tristan Kirk (@kirkkorner) February 23, 2022
‘Famous person charged and no one knows why’
Both Kirk and Harrison noted that the proposed reforms come seven years after the Single Justice Procedure was introduced, meaning people charged with minor offences such as speeding can now have their cases decided by a magistrate without going to court. Journalists can see a results register after it has happened.
Kirk said: “It’s now seven years later and I think there are very few reporters in the country who are even aware of what goes on there. That is a very good indicator of how reporting could just drop off the radar. Reporters aren’t necessarily geared to combing through spreadsheets to find court hearings. It’s like history repeating itself.”
He noted that a dozen journalists turned up to Wimbledon Magistrates’ Court in 2018 for a hearing after ex-footballer David Beckham was charged with speeding, but “were entirely bemused to find there wasn’t actually a court hearing and it was somebody in a back room dealing with some papers”.
Kirk added: “We will get it again where a famous person is charged with a crime and no one knows why.”
He said that, under the new proposals, celebrities charged with a crime may be able to ask their lawyers to make sure the first hearing takes place online.
“Anyone famous or notable will be desperate to avoid a first appearance so they will instruct their lawyers to make sure that happens and they may even be able to slip into the system without anyone noticing they have been accused of a crime,” Kirk said.
‘Legal grey area’
Another concern centred on whether journalists will be able to trust the information they are given when a defendant pleads guilty administratively. Kirk feared this could leave publishers in a “legal grey area” and that it would only be a “matter of time” before an admin officer accidentally wrote guilty instead of not guilty, meaning it could be reported that they admitted a crime when they actually denied it.
“We are very concerned about the ability to report on cases when they first enter the courts, if there’s no open court hearing – will we be covered by privilege? Is information from a courts admin officer sufficiently reliable?” Kirk said.
He added: “There is a lot of concern about how we will be basically writing up stories based on administrative hearings and then find out media lawyers aren’t happy for us to run them because there is an element of doubt whether it is true or not.”
‘Critical for professional development’
Journalist trainers also fear the changes would have an impact on the crucial training young journalists can get in magistrates’ courts.
NCTJ chief executive Joanne Butcher, who signed the letter alongside several academics, told Press Gazette: “It is vital that journalists have the skills and confidence to cover court cases effectively when they embark on their careers. That is why we place such importance on students, apprentices and trainees observing trials as part of their NCTJ Diploma in journalism training.
“Any changes that make it harder for journalists to access hearings, not only have knock-on consequences for the public that are worrying. They also have the potential to affect the ability of students to gain the practical, first-hand experience of legal proceedings that is critical for their professional development.”
MoJ says open justice will be maintained
In response to the letter, a Ministry of Justice spokesperson told Press Gazette: “Our changes will allow people to enter their pleas online for low-level offences – such as fishing with an unlicensed rod – saving people from traipsing to court unnecessarily.
“These measures will also provide 400 extra court sitting days each year to speed up justice for victims of more serious offences.
“The list of cases being heard in court will continue to be published online and additional information will remain available to journalists to maintain the principle of open justice.”
But Kirk said, if the changes will create efficiency savings for the MoJ: “We think some of that money should be allocated to protecting open justice.”