I am as happy to introduce this guidance to Reporting Restrictions in the Magistrates’ Court as I was to introduce similar guidance for the Crown Court. This joint project between the Society of Editors and the Newspaper Society and the judiciary to produce useful information in readily accessible form about the principles which should govern the arrangements for reporting of cases before the courts is now complete.

Although it may perhaps be unnecessary for me to repeat what I said in relation to the full-time judiciary in my foreword to the guidance in the Crown Court, the essential principle is equally applicable to Magistrates’ Courts. Justice should be administered

in public where both the process, and the results, are open to scrutiny. The responsibility for accurately reporting these matters to the community at large is performed by representatives of the media. Without their efforts, whatever the theory, in practice the process would become closed.

The fact that the jurisdiction of the Magistrates’ Court is obviously not as extensive as the jurisdiction of the Crown Court should not obscure the fact that the vast majority of criminal cases are conducted in them. And the principle of open justice applies just as much to the apparently minor case heard in the Magistrates’ Court as it does to the high profile trial being conducted in the Crown Court. Some trials attract more media interest than others, but the principle applies to each and every case. Unless the individual case falls within the exceptions to the general principle, the process, and the decisions of the magistrates represent the public exercise of justice in the local community.

As before, I am extremely grateful to Bob Satchwell of the Society of Editors and Santha Rasaiah, Head of Political, Editorial and Regulatory Affairs at the Newspaper Society for their great contribution to the guidance, and for the close working relationship which developed between them and Mrs Justice Hallett and Michael Woolley on behalf of the Magisterial Committee of the Judicial Studies Board. I have not the slightest doubt that the guidance will very rapidly prove immensely valuable in day to day use, and I commend immediate reference to it as soon as any problems about reporting restrictions are anticipated.

Igor Judge
Senior Presiding Judge for England and Wales

Introduction

The general rule is that the administration of justice must be done in public. The media is in court to report the proceedings to the public, the majority of whom will be unable to be there in person but who have the right to be informed as to what has occurred. Accordingly, unless there is good and lawful reason, nothing should be done to prevent the publication to the wider public of fair and accurate reports of proceedings by the media. The open justice principle is clearly recognised by the courts and by Parliament. The common law has been supplemented in this respect by statute.

The media has been given statutory rights to attend certain proceedings from which the public is excluded. Statutory defences in libel and contempt litigation are available for fair, accurate and contemporaneous reports of proceedings. Statutory rights have been provided to make representations against the imposition of restrictions on reporting or public access to proceedings. The role of the media is recognised in the case law under the European Convention on Human Rights.

Exceptions to the General Rule

There are circumstances in which the court will have to consider departing from this general principle. In some cases, statute automatically restricts the giving of certain details in reports of court proceedings. Common law powers and statutory restrictions enable the court in other circumstances to exclude the public and the media and to impose temporary or permanent restrictions on the media’s reports of court proceedings by making a court order. In all such circumstances, courts are encouraged to exercise their discretion to hear the media’s representations at the time any court is considering imposition of an order. Courts are also encouraged to exercise their discretion to hear media representations on the lifting of such restrictions to permit contemporaneous reporting of the proceedings.

Such discretion should be exercised in addition to any formal rights which the media might have for appeal or review of such orders or to apply for lifting of automatic reporting restrictions. This also often ensures that problems are resolved quickly. The law provides particular protection to contemporaneous reports of court proceedings and has recognised the ‘perishable’ nature of news and courts have acknowledged the importance of hearing and resolving issues relating to reporting as soon as possible. If the necessary balance between the general principle of open justice and properly competing interests is to be achieved, a clear understanding of the legal basis for the imposition of restrictions is necessary by magistrates, court staff and the media. This guide seeks to highlight those areas in which consideration of restrictions is likely to occur in the Magistrates’ Court, in dealing with criminal and civil proceedings.

1. Access to court information and accuracy checks in criminal proceedings

Court lists and the register of decisions in the Magistrates’ Courts

Following discussions between the Home Office, the Lord Chancellor’s Department, the Justices’ Clerks’ Society, the Magistrates Association, Newspaper Society and the Society (then Guild) of Editors, the Home Office issued a circular on availability of court lists and register of judgments. Circular 80/1989 encourages justices’ clerks to meet reasonable requests by the media for copies of court lists and the register of decisions in Magistrates’ Courts.

The Home Secretary considered that court lists should be available to the media in court on the day of the hearings and, where provisional lists are prepared in advance, copies should also be made available on request. As a minimum the lists should contain each defendant’s name, age, address and, where known, his profession and the alleged offence.

The Home Secretary also encouraged all courts to provide their local newspaper with a copy of the court register when it was prepared. It was for the editors to ensure that any relevant legal restraints on publication were observed, in the same way that they were responsible for the accuracy of the results of cases they published.

The circular strongly recommended that the media be asked to meet the full economic cost of providing copies of all court papers, taking into account the cost of materials and staff resources required to prepare copies. Journalists might also telephone the court staff from time to time to check progress of cases or ensure the accuracy of names and charges or other matters.

Following discussions between the Newspaper Society, the Home Office and the Data Protection Commissioner, the DPC has confirmed that courts can continue to provide lists, registers and other information in accordance with the circular and assist such accuracy and progress checks, without contravention of the Data Protection Act 1998.

Identification of those involved in court proceedings

At common law, it would be considered inimical to the administration of justice to protect the identity of magistrates presiding over proceedings. Their identity should be made known to press and public. (See R v Felixstowe Justices ex p Leigh 1987 QB 582, R v Evesham Justices ex p McDonagh (1988) 2 WLR 227).

The media is particularly concerned about accurate identification of those involved in court proceedings. Announcement in open court of names and addresses enables the precise identification vital to distinguish a defendant from someone in the locality who bears the same name and avoids inadvertent defamation. The Home Secretary issued Circular No 78/1967 in response to press concern.

In addition to recommending that courts supply the press with advance copies of court lists, the circular encouraged courts to ensure the announcement in open court of both the names and the addresses of defendants. The circular acknowledges that a person’s address is as much a part of his description as his name. It states that there is therefore a strong public interest in facilitating press reports that correctly describe persons involved.

Statutory reporting restrictions, even when automatic, provide for the lawful publication of magistrates’ identities and names and addresses of defendants and others appearing before the courts. Common law also restricts the circumstances in which names and addresses can be withheld from the public or reporting restrictions imposed to prevent or postpone their publication (see below and R v Evesham Justices ex parte McDonagh (1988) 2 WLR 227).

2. Hearings from which the public may be excluded (See Stone’s Justices’ Manual)

In general, court proceedings must be held in open court, so that press and public have the right to attend the proceedings, evidence is communicated publicly and nothing is done to discourage the publication to a wider public of a fair and accurate report of proceedings.

• In addition, there are express statutory obligations upon the Magistrates’ Court to sit in open court, unless there are express statutory provisions to the contrary, whether sitting in petty sessional or occasional court-house (section 121 (4) of the Magistrates’ Courts Act 1980). Particular provisions govern committal proceedings, requiring the examining justices to sit in public in the absence of statutory provisions to the contrary unless the ends of justice would not be served.
• The court does have inherent power to regulate its own proceedings. However departure from the open justice principle is exceptional. It must be justified as necessary for the avoidance of the frustration of the administration of justice or the rendering of it impracticable.
• If the Magistrates’ Court does have the power to sit in camera, it can employ less restrictive derogations from open justice that would still protect the administration of justice. However, any alternatives which might also involve derogations from open justice, such as reporting restrictions or enabling information to be withheld from being given out in open court, are also exceptional measures and require satisfaction of similar stringent tests and consideration of less restrictive measures before they can be used.
• The Magistrates’ Court has the discretion to exclude the public but not bona fide representatives of newspapers, broadcasters and news agencies during the testimony of witnesses aged under 18 in any proceedings relating to an offence against, or conduct contrary to, decency and morality (section 37 Children and Young Persons Act 1933).
• Section 25 of the Youth Justice and Criminal Evidence Act 1999 (when in force), permits the court to exclude persons of any description from the court, during the evidence of a child or vulnerable adult witness on cases relating to a sexual offence, or where there are grounds for believing that the witness has been, or may be, intimidated. However, it was not envisaged that the press should routinely be excluded alongside the rest of the public, even in such exceptional cases. Moreover, even if the media are to be excluded, one nominated representative must be permitted to remain.
• Section 47 of the Children and Young Persons Act 1933 permits the press but not the public to attend Youth Court proceedings. The court has the discretion to admit the public and has been encouraged to use these powers by the Home Office and Lord Chancellor’s Department (see below).
• Section 69 of the Magistrates’ Courts Act 1980 permits the press and news agencies to attend family proceedings, with the exception of adoption proceedings, from which the public is otherwise excluded (see below). Rules have been made under section 144 of the Magistrates’ Courts Act 1980 which enable private sittings in certain circumstances in proceedings where the court might exercise its powers under the Children Act 1989 (see below and the Family Proceedings Courts (Children Act 1989) Rules 1991 r16). With the exception of adoption proceedings, the court has the discretion to allow other people, including those with no direct connection with the case to attend family proceedings hearings.
• The Human Rights Act 1998 and Articles 6 and 10 of the European Convention on Human Rights are relevant considerations as these require the courts to comply with rights to fair and public hearings, public pronouncement of judgments and the right to receive and impart information, subject to strictly limited exceptions.