UK crime journalists have voiced concerns about a proposal that could allow alleged victims of sexual offences to give evidence in private court hearings.
The Law Commission’s proposed reform suggests excluding all media except for one reporter while evidence is heard from a complainant in a sex offence case. Currently, alleged victims in such cases frequently give evidence from behind a screen, remotely or in a pre-recorded interview.
The consultation also questions whether the public should potentially should be excluded from the courtroom for entire sexual offences trials. This suggestion again listed one member of the press alongside the defendant, legal representatives and any interpreters or other support staff as the only exceptions.
The questions are posed as part of an examination into how evidence is used in trials involving sexual offences and why there has been a sharp decrease in the number of prosecutions despite reports of rape and sexual violence remaining steady.
The Law Commission said: “We provisionally propose that complainants in sexual offences prosecutions should be automatically entitled to the exclusion of the public from observing the trial while they are giving evidence, whether in court or by live link, or while their pre-recorded evidence is played.
“As is currently the case under section 25 of the Youth Justice and Criminal Evidence Act 1999, exclusion of the public would not apply to: one named representative of the press; the defendant; legal representatives; any interpreter or other person appointed to assist the witness, all of whom would still be permitted to attend.”
The report claimed that allowing one journalist in court “can achieve a balance: promoting open justice and recognising the role of press reporting, while preventing additional pressure and stress being caused to witnesses by having multiple reporters present.
“The press play an essential role in disseminating criminal proceedings to the wider public and their presence at court allows them to challenge any rulings which may impact on open justice.”
It claimed to have heard from a media stakeholder that there would be concerns for open justice and the encouragement of court reporting if this were to go ahead, but said the Commission had been told allowing one journalist in “would protect against the risk to open justice”.
Proposal could allow perpetrators to ‘escape public scrutiny’
However the Crime Reporters Association (CRA) called the proposal an “affront to the principle of open justice” and noted that there is no known case in which a prosecution has failed or a witness or victim has had problems giving evidence because there were reporters in the courtroom.
In an open letter shared with Press Gazette, it said the proposal would lead to many cases going “unreported” and would in practice be “unworkable”.
“How can members of the media report fairly and accurately on a trial when they cannot hear the evidence in the case?” the group asked.
“How can a reporter cover a defendant’s evidence or indeed any witness account when they have not heard the victim’s evidence?
“This proposal runs the risk that reporting would be skewed, materially imbalanced by what is heard in public, and what has been withheld from most reporters in a private hearing.
“The likely consequence of such a prohibition is cases would go largely unreported, with disastrous consequences for the criminal justice system as it seeks to boost sexual offences prosecutions.
“If the evidence of sex abuse victims is not reported properly, perpetrators escape public scrutiny.
“The result is other victims are left in the dark about their crimes and will not have the confidence to come forward.
“This would have the effect of placing a veil of secrecy on sexual offence prosecutions at a time when confidence in police and the criminal justice system is at a record low.”
The CRA also questioned how one journalist would be chosen to report back to all other media organisations, pointed out the potential legal risks to them of doing so, and noted that there is no method in place currently for one reporter to share copy with all interested national and international media outlets.
The Law Commission itself said it did not know how such a system would work, beyond suggesting that press cards could be used for journalists to identify themselves.
“Who would decide which reporter attends the courtroom and which members of the media cannot?” the CRA asked. “Who would arbitrate in the inevitable argument between reporters about who should be excluded?
“How could media ensure that the one reporter chosen files in time for their specific deadline, which may be different to others?
“And how could those outside the hearing ascertain that the facts and reporting from the one member of the media present was accurate?
“If that chosen reporter did not hear the evidence or made a mistake, that inaccuracy could be replicated in every single newspaper, radio, TV and online and what would happen if there was a legal complaint as a result?
“It raises the prospect that a single reporter could face legal action on a grand scale with prohibitive costs, which could have disastrous consequences for a small local newspaper.”
The proposal was also opposed by the Society of Editors, whose executive director Dawn Alford said: “At a time when there has been a significant move in recent years by the justice system to enhance open justice in courts and allow wider reporting in areas which historically have been private in nature, it seems contrary to the greater openness and transparency that has been achieved elsewhere to now attempt to implement unnecessary restrictions on the media’s ability to accurately report on cases involving sexual offences.”
‘Chilling prospect of secret justice for rapists’
The Law Commission did not yet propose that full sexual offence trials should be held in private, but it did ask for opinions on this idea.
It questioned “whether, for sexual offences prosecutions, there should be a power to direct the exclusion of the public with the exception of: one named representative of the press; the defendant; legal representatives; any interpreter or other person appointed to assist the witness, from observing” either the full trial, the verdict and sentencing hearing, or the part of the sentencing in which the victim’s personal statement is read.
“If so, should this power be discretionary, or should the complainant be automatically entitled to such a direction?” the consultation asks.
In response to this suggestion, Camber told Press Gazette: “This raises the chilling prospect of secret justice for rapists and other sexual offenders.
“If no one knows about a prosecution, key witnesses and other victims may not come forward which could impact on conviction rates. The media also plays a vital role in court proceedings by shining a light on miscarriages of justice.
“Shutting out the public and the press will do nothing to reassure victims about the state of the criminal justice system. I fear it will only discourage victims from coming forward and embolden perpetrators whose crimes will go unreported.”
The Times’ former crime editor, now senior writer, Sean O’Neill wrote on Friday that both ideas are “a direct assault on the once-cherished belief that justice has to be seen to be done“.
Raising concerns about “severely curtailed” coverage of court cases and who decides the identity of the single permitted reporter, O’Neill added: “Coming hard on the heels of an advancing privacy law, restrictions on naming criminal suspects and closed material hearings, the Law Commission’s half-baked proposals are chilling for open justice and a free press.”
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