Annex

Media and public access to proceedings in the Magistrates’ Court – advice and guidance for magistrates

Introduction

In recognition of the open justice principle, the general rule is that justice should be administered in public. To this end:

• Proceedings must be held in public.
• Evidence must be communicated publicly.
• Fair, accurate and contemporaneous media reporting of proceedings should not be prevented by any action of the court unless strictly necessary.

Therefore, unless there are exceptional circumstances laid down by statute law and/or common law the court must not:

• Order or allow the exclusion of the press or public from court for any part of the proceedings.
• Permit the withholding of information from the open court proceedings.
• Impose permanent or temporary bans on reporting of the proceedings or any part of them including anything that prevents the proper identification, by name and address, of those appearing or mentioned in the course of proceedings.

In recognition of the open justice principle, the courts and Parliament have given particular rights to the press, so that they can report court proceedings to the wider public, even if the public is excluded.

Guidance follows on the recommended approach to follow when making decisions to exclude the media or prevent it from reporting proceedings in the Magistrates’ Courts, together with an easy reference checklist for use in court.

Always seek the advice of the clerk/legal adviser when considering imposing press reporting or public access restrictions to the court.

A structured approach for magistrates

Note: In this document reference is made throughout to the media. This includes, the press, radio and television.

If the court is asked to exclude the media or prevent it from reporting anything, however, informally, do not agree to do so without first checking whether the law would permit the court to do so. Then consider whether the court ought to do so. Invite submissions from the media or its legal representatives. The prime concern is the interests of justice.

1. Seek the advice of the Clerk/legal advice on the circumstances in which the law allows the court to exclude the media, withhold information, postpone or ban reporting and then consider whether it would be a proper and appropriate use of that power in the case before the court.

2. Then consider:

• Is there any statutory power which allows departure from the open justice principle? What is the precise wording of the statute? Is it relevant to the particular case?

• Or is the applicant suggesting that the power for the requested departure from the open justice principle is derived from common-law and the court’s inherent jurisdiction to regulate its own proceedings? If so, does the case law actually support that contention? Has the applicant produced the factual evidence necessary to the court’s assessment of his case, where the law might require this?

• Is action necessary in the interests of justice? Automatic restrictions upon reporting might already apply, or there may be restrictions on reports imposed by the media’s codes, or as a result of an agreed approach and other factors affecting the way that a particular case might be reported which are not known to the court, or in the interests of the parties to put forward.

• Is there any derogation from the open justice principle really necessary? If so are there any less restrictive alternatives available?
• Invite oral or written representations by the media or their representatives, as well as legal submissions on the applicable law from the prosecution, in addition to any legal submissions and any evidence which the law might require in support of an application for reporting restrictions from a party.
• (NB: The court should invite media representatives at the time it is first considering an order and, if an order is imposed, it should hear media representations as to whether the reporting restriction should be lifted of varied.)

3. If an order is made, the court must make it clear in court that a formal order has been made and its precise terms. Seek the advice of the Clerk/Legal Adviser on the drafting of the order and the reasons for making it. It may be helpful to suggest at the same time that the court would be prepared to discuss any problems arising from the order with the media in open court, if they are raised by written note.

A check-list

On occasions reporting restrictions are lawful and necessary. If the court is asked to exclude the press or prevent it from reporting anything, however informally:

• Seek the advice of your clerk.
• Check your powers.
• Invite representations from the parties and the media. Make sure that the court has had all the relevant statutes and legal authorities drawn to its attention before making any decision.
• If you are referred to a statutory power: What is the precise wording of the statute? Is it relevant to the particular case? Consider the case law.
• If you are referred to a common-law power and the court’s inherent jurisdiction to regulate its own proceedings: Does the case law actually support that contention advanced? Has the applicant produced the factual evidence required by law?
• Is action by the court necessary in the interests of justice? Automatic restrictions upon reporting might already apply. There may be other restrictions on reporting imposed by the media’s codes, or by agreement which are not known to the court.
• If restrictions are necessary how far should they go? Always consider whether there are less restrictive alternatives available.
• If an order is made, the court must make it clear in court that a formal order has been made and its precise terms. It may be helpful to indicate that the court would be prepared to discuss any problems arising from the order with the media in open court, if they are raised by written note.
• As soon as possible after oral announcement of the order in court, the order should be committed to writing. This should be under the court’s direction. It should be in precise terms, giving its legal basis, its precise scope, its duration and when it will cease to have effect if appropriate and the reasons for making the order. Appropriate entries should be made in the court record.
• Notifying the media. The court should have appropriate procedures for notifying the media that an order has been made. Copies of the written notice must be provided to the media and members of staff should be available and briefed to deal with media inquiries, inside and outside court hours.
• Review. The court should exercise its discretion to hear media representations against the imposition of any order under consideration or as to the lifting or variation of any reporting restriction as soon as possible.