Judges, lawyers and journalists all need to be clearer  on guidelines for reporting restrictions, writes Gill Phillips

Twelve years ago Lord Justice Staughton reminded us that “The Latin maxim that justice must be done though the heavens fall applies even in times of terrorism; or at least we have not been driven to abandon it,”: [R. v. Vincent Wood [1996] 1 Cr. App. R. 207 at 219 A.] . Recently, the media’s experience, nationally and regionally, is that there is an increasing propensity amongst both civil and criminal courts, but especially the criminal courts, to make incorrect or inappropriate orders restricting the reporting of their proceedings. The media rarely if ever recovers its costs in these cases, even where it is 100 per cent right to have challenged the order. There is an increasing cost and time burden on the media in trying to police the making of such orders.

The main concern of the media is that they should, in the interests of open justice, fair and accurate reporting and the public interest, be able to fully and properly report a trial as it proceeds, up to and including its conclusion.

There is a powerful public interest in open justice. This has been repeatedly emphasised by the Courts since at least the decision of the House of Lords in Scott v Scott [1913] AC 417. Justice should be done in public as a safeguard against judicial arbitrariness and to maintain public confidence in the administration of justice.

The media has an acknowledged positive duty to act as a “watchdog” or as the “eyes and ears” of the general public, and thus to inform their readers and viewers about issues of public importance including the administration of justice (AG v Guardian Newspapers Ltd (No 3) [1992] 1 WLR 874). It is thus vital to the due administration of justice that the media is able to fully and properly report the trial as it proceeds and not hampered in that process without good reason.

There are two main statutory restrictions criminal courts can utilise to make orders restricting reporting. The first of these is section 4 (2) Contempt of Court Act 1981, which allows for the restriction, on a temporary basis, of the reporting of some or all of a trial, “where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, or in any other proceedings pending or imminent”. This applies, for example, where a second related trial will follow on shortly after another.

Section 11 of the Contempt of Court Act is frequently, and erroneously, relied on to make restrictions, whereas it provides a very limited power to withhold matters from publication “where a court … allows a name or other matter to be withheld from the public in proceedings before the court”. The heading of the section itself underlines its application to matters “exempted from disclosure in court”. Unless the court deliberately exercises its power to allow a name or other matter to be withheld, Section 11 of the 1981 Act is not engaged. This section allows anonymity orders to be made in, for example, blackmail cases. It does not provide a generic power to prevent those charged with criminal offences from being identified. Such orders should in any event only be made if justice requires it or if the administration of justice would be frustrated or rendered impractical without such an order.

No one objects to proper orders being made where the interests of justice require it, but it is of concern when orders are made without any apparent consideration of the evidence, without apparent reference to any case law and without any apparent thought to consulting the media. All too often it appears the media is left to stumble on these things almost by accident, the lights seeming to have been turned off by those involved.

In May 2000, there was a joint effort by representatives of the media (The Society of Editors and The Newspaper Society) and the judiciary to produce useful practical information to be made available to judges in the Crown Court and, in an identical edition, to journalists, editors and representatives of the media. This was followed up a year or so later by the production of a similar publication to be made available to Magistrates Courts. The problem at the moment seems to be that a number of judges do not seem to know these exist, or do not pay attention to them.

There have been recent pronouncements from senior judges, including Sir Igor Judge, Lord Justice Thomas and Lord Justice Moses, in cases where it was held that orders restricting reporting should not have been made. In all these cases (a five person Court of Appeal in R v Croydon Crown Court, R v The Secretary of State for Defence (Case No CO/9282/2007) and Lincoln Crawford v CPS (Case No CO/3016/2007)), their Lordships made clear that everyone involved in cases where restriction on the reporting of proceedings was sought [courts and counsel] should be very conscious of the limited powers there are to prevent hearings held in open court being fully reported by the media.

Recently, the Judge Advocate General ‘s office has issued guidelines to its judges about when reporting restrictions can be made and how the media can be involved in the process. Although it was initially hoped there would be an agreed protocol between the media and the JAG’s office, in the end that was impossible to achieve. Nonetheless, in the case of courts martial, the guidelines encourage media involvement before orders are made wherever possible. The Director of Public Prosecutions has recently stated that the CPS should not be neutral in these matters and should have a view on whether restrictions should be imposed. It is to be hoped that the criminal courts will take note of these recent criticisms from on high, appreciate the need to make such orders only where it is “absolutely necessary” and be less arbitrary in the future about the making of such orders.

Gill Phillips is an in-house lawyer with The Times