Seven deadly sins of court reporting

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Yes, I know, see point 7

COURT reporters, what are they then?

Well you may ask, because if you believe reports of the industry, they are a dying breed.

But then, they were dying back in the days I was numbing my backside on the press bench of Wrexham Magistrates Court as a wet-behind-the-ears junior reporter on the Evening Leader.

It is true that as the regional press has de-staffed, sorry, management-speak, cut jobs, increasingly the dedicated court reporter posts have decreased.

Bit the courts do still get reported, and my first editor, Reg Herbert, who would demand ‘every cough and spit’ from Wrexham Mags, I still believe that they are the best free show in town. All human life is there and it is no coincidence that Dickens was a court reporter, his novels populated by the characters he came across in the courts.

If you are a junior reporter heading to court for the first time, or a blogger who has spotted a gap in the market, here are seven deadly sins all court reporters should avoid…

  1. Don’t use your mobile phone. You can, usually, use your phone to file copy by email, or to text your newsdesk. The courts have been told that this should generally be allowed, and only in special circumstances should it be forbidden. If you have your phone turned on, make sure it is switched to silent. One reporter was more than a little embarrassed when, during the sentencing of a murderer, his phone went off playing a rendition of The Gay Gordons
  2. Don’t use your mobile phone as a camera. That souvenir selfie of your first day as a court reporter could see you spending your first day in the cells below. Photography during court proceedings is against the law, as various notices around the court will tell you. Taking a photograph with the court administration’s permission – such as of a retiring magistrate in an empty courtroom for a feature – would be fine. Thanks to Twitter follower Tom Webb for reminding me, you’re not allowed to use a phone, or any other device to record the proceedings either. Get a notebook, pen, and learn shorthand.
  3. Don’t bow. You will see officers of the court – the lawyers and ushers, bowing to the judge or magistrates as they leave or enter the court. I have seen some court reporters do this, but there really is no need. You are not involved in the proceedings, you are just reporting them.
  4. Don’t be intimidated. Court staff are overworked and can, sometimes, be less than helpful. Remain studiously polite, but insist on the information that you need in order to produce an accurate report of proceedings. Courts are under instruction from the Ministry of Justice to make court lists available, so make sure they give them to you when you need them.
  5. Don’t forget your law. You’re not expected to know the criminal law inside out, but you needs to know the basics for court reporting. Libel, specifically privilege defences for court reporting; contempt of court; reporting restriction on preliminary hearings; anonymity rules for children and sexual offences to name but a few. This is where I come in, I run training sessions on all this and I’m cheaper than getting a massive fine or paying libel damages. See my training page for details of the courses I run.
  6. Don’t forget court reports are about people, not the process. Don’t get caught up in the terminology or the complexities of the law. Tell the human story about the offence, the perpetrator, the witnesses and the victims.
  7. Don’t use a picture of a gavel to illustrate a court report. This is a courtroom, not an auction and they don’t use them in UK courts, ever. I’ll laugh at you if you do, as will the Twitter account @igavels, which was set up to highlight such abuse.

Why the media should not back Brexit

THIS is a hard sell, I know, but Paul Dacre, editor of the Daily Mail, should love the European Union.

Every day, he, along with every other UK newspaper editor, should pen a love letter to the bureaucrats of Brussels.

They should be praying fervently that on June 23 we vote Remain and stay in the EU.

Why? Because it is the only thing keeping him, and every other editor, website owner and blogger out of jail.

Anyone who allows third party content on a site under their control ought to give thanks we are in the EU where they are under the protection of the catchily-titled Electronic Commerce Directive 2000/31/EC.

This is a very useful bit of Brussels bureaucracy that was enacted to protect those providing platforms for others to access internet publication. So it protects ISPs and it has always protected newspaper forums – where readers get to express an opinion online about content.

Now, I don’t know whether you’ve ever been ‘below the line’ on a Daily Mail story, but it can be a very, very strange place to be. On stories involving race, gender, immigration and refugees, it is like lifting a rock on society and seeing the ugly stuff scuttling about underneath.

And this is not behaviour confined to the Daily Mail either. Recently The Guardian analysed comments made on stories on its site and while much was positive, there was nevertheless a range of comment that was ‘crude, bigoted and vile’.

The directive also protects any website with a comment function and it protects bloggers like me when people comment on my posts. As I said, enormously useful and given to us by the EU.

Often the main concern about online forums is the threat of libel and we do have our own homegrown bit of law that protects us in the Defamation Act 1996. The defence of innocent publication says that as long as you did not know the material was there and removed it promptly when notified, you do not have a liability.

But this very good bit of law only protects us against libel, nothing else.

Now, let’s delve ‘below the line’ again in a newspaper forum. You will soon see all manner of legal liability is to be found there, not just libel.

You can find contempt of court, harassment, inciting hatred, breaches of privacy and copyright violation to name but a few. Now, to be prosecuted for some of these offences it would need to be shown that we had some form of intent to commit an offence. But with some offences, such as contempt of court, there is no such requirement – if you’ve got the content on your site, you’re guilty.

The beauty of the EU directive is that it protects you from all legal liability for user-generated-content, not just libel.

At the moment if you are hosting a site which attracts content like that, you are protected by the EU Directive, so long as you are acting as a ‘conduit for publication’. If you are not actively editing or pre-moderating the content then you do not have any legal liability for it unless you leave it up on your site once you have been notified of it.

This defence also protects platforms like Twitter and Facebook against liability for anything posted by their users.

So anyone running a ‘lively’ forum better hope we stay in the EU.

If we don’t, then start hiring moderators, lots of them.

Reporting restrictions in Ambridge

PITY the poor court reporter on the Borsetshire Echo.

After years numbing their backside on the narrow press benches of that farming county’s courts, faithfully recording drink driving, poaching and a bit of argy-bargy of a weekend outside The Bull, they suddenly have a much bigger story on their hands.

You don’t have to be an Archers fan to know this tale of country folk has taken a sinister turn recently, culminating in Helen Titchener, nee Archer, plunging a knife, twice, into her abusive husband, Rob, almost causing a demise that many fans would have deemed rather timely.

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Helen (Louiza Patikis) and a not at all sinister-looking Rob (Timothy Watson)

The storyline, which has been building for a couple of years, has done a great deal to raise awareness of domestic abuse and the sort of ‘coercive control’ exerted by Rob on Helen. The reaction from the public has been extraordinary, summed up by the amazing response to an appeal launched by Paul Trueman, @paultrueman74 on Twitter.

He set about raising £1,000 for the charity Refuge, which helps victims of domestic violence. He set up a Justgiving page and the sum raised now stands at more than £127,000 .

Rob survived, Helen is behind bars awaiting trial, and her brother Tom has had a characteristically good whinge about the press coverage of his sister’s situation.

But what can the media report, if anything? Tom, while perusing the newsstands on the Sunday after Rob’s near-death, was horrified at the coverage – “They’re not meant to print anything,” he said, setting the teeth of this old court reporter on edge, and not just because of his shrill tone.

I doubt very much that Helen’s alleged offence would have attracted the attention of any national newspapers at this stage. She didn’t kill him, and there is nothing about her, or Rob, which would normally attract the attention of a national newspaper news desk, in my opinion. But let’s give the scriptwriters that bit of licence, as it allowed Tom to give the redtops a bit of a kick, which always plays well to middle England of a Sunday as they listen to the omnibus edition of The Archers, while reading their….er….redtops.

What then, are the rules on reporting this offence?

Firstly, when Helen was arrested, that means that proceedings in the case had ‘become active’ – the judicial ball is rolling and at some point in the future, Helen might face judge and jury. That means that any reporter working on the story ought to keep a weather-eye on the Contempt of Court Act 1981. This says that once proceedings are active you must not publish or broadcast anything which creates a ‘substantial risk of serious prejudice, or serious impediment’ to the proceedings.

So, what does that phrase mean? Is it a blackout on all coverage of the case?

Well no. The Contempt of Court Act was brought in to substantially replace the old common law of contempt, which was too draconian, and the new statute was intended to strike a balance between rights to a fair trial, and rights to freedom of expression.

So, as long as any detail you publish is not seriously prejudicial, then it should not cause you any difficulty. Note that prosecutions for contempt have to be authorised by the Attorney General, and cannot be taken against you by Borsetshire’s barmy magistrates, or even crown court judges – they have to refer it to the AG.

The sort of details that would be prejudicial are:

  • PIctures, E-fits, descriptions or video of a defendant ‘where identity is at issue at trial’ ie the accused is saying ‘it wasn’t me guv’nor’. There may be an ID parade and if you have published a photo, that reminds the eyewitness who to pick out, and it destroys the admissibility of their evidence. The Sun was fined £80k for this, and its then editor Kelvin MacKenzie was fined £20k. This is clearly not the case with Helen, but we often don’t know that for certain in the early stages of an inquiry, so you have to err on the side of caution.
  • Assumptions of guilt. Helen is not yet ‘the attempted murderer’ it is an allegation and can only be reported as such.
  • Evidence that will be disputed at trial. Be it Helen’s threat to kill her husband on Maundy Thursday, or Kirsty’s tales of Rob’s abuse that you have unearthed, you cannot report them yet. They cast the defendant and the victim in alight that might sway a juror, so should be avoided until the trial concludes.

Proceedings remain active until sentence according to the Act, but in practice you can run your background articles as soon as Helen is acquitted and carried shoulder-high from court…..sorry, or found guilty. Once either of these things happen, the jury is out of the equation and can no longer be influence by what you publish.

When Helen appears in court a different set of restrictions apply to what can be written. In the preliminary hearings before trial a report is mean to be restricted to:

  • Name of the court and magistrates
  • Name, age, address, occupation of the defendant
  • Names of the lawyers involved
  • Charges or a summary of them
  • What the court decides about the case – adjournment, allocation for trial etc
  • Arrangements for bail – residence, curfew etc
  • Whether legal as was granted

Pretty thin stuff, very procedural, as you can see. But if the Borsetshire Echo’s court reporter has anything about her, or him, they won’t let those restrictions get in the way of giving their reader a taste of court.

Descriptive passages detailing the oak-panelled grandeur of Felpersham Magistrates Court will be fine. Describing the organic, tie-dyed t-shirt that Helen wore for her first appearance will be ok too. Her mother, Pat, weeping in the public gallery, sitting beside Tony wringing his hands, again, will not be a breach of this law. What would be a problem here would be reporting any detail of prosecution evidence against Helen. A potential juror might read it and be more likely to find her guilty as a result.

However, if Helen’s counsel Anna Tregorran QC, wants to state during proceedings, or after, on the steps of the court, that her client would be vehemently denying the charges and expected to be acquitted on due course, that would be OK to report. Jurors are told to presume the defendant is not guilty and Ms Tregorran’s statement is merely affirming that. However, if Rob’s venomous mother Ursula, were to make a statement proclaiming that Helen was bang to rights, it’s a fair cop, she’s going down – that would not be allowed.

I also foresee a potential problem when this case comes to trial, in the shape of Helen’s young son, Henry. He witnessed the entire incident and will be called as a witness at trial. In such a case it would be very likely that the court would choose to anonymise him using a Section 45A order of the Youth Justice and Criminal Evidence act 1999. This would make reporting his evidence a little difficult.

The law says that any detail which allows someone to identify him is an offence. In such a case, even his age might be seen as an identifying detail. Caution is needed, and if in doubt the Echo’s court scribe ought to get some guidance from the judge on what details about Henry are likely to attract his ire.

One thing to note. Reports of trial proceedings are protected against a libel action by a defence called absolute privilege, for a fair, accurate report published at the same time as  the proceedings. So when, as I fully expect, Anna Tregorran shreds Rob Titchener in the witness box, revealing him as an abuser and a rapist, the Echo is free to splash that across its front without fear of Rob going to law.

I hope the Echo’s staff find this useful. If the editor is reading, I could squeeze a law refresher for the staff in before trial commences.

All of the above assumes that the scriptwriters aren’t going to throw us a curve ball and have Eddie and Joe Grundy spring her from a prison van and hide her away in the wilderness of rural Borsetshire. We live in hope.

Revenge porn – how victim anonymity will protect defendants

THE Director of Public Prosecutions is the latest in along list of people supporting legal anonymity for victims of so-called ‘revenge porn.’

This campaign has been running ever since this offence emerged, with the growth of social media and the ability to easily share photographs and video content.

Before we do go down this road though, we need to understand how such anonymity will end up protecting offenders as well as victims.

Revenge porn was created as a specific offence in the Criminal Justice and Courts Act 2015, Section 33(1) of which says:

It is an offence for a person to disclose a private sexual photograph or film if the disclosure is made

(a) without the consent of an individual who appears in the photograph or film, and

(b) with the intention of causing that individual distress.

There is not mention in that section or that Act of automatic anonymity for victims and it is not an amendment or addition to a Sexual Offences Act which confers such anonymity.

One can completely understand the desire of victims of this offence to be granted anonymity. It is a particularly intrusive and distressing offence. It very often stems from a relationship where there was great trust and intimacy, which later results in the revelation of imagery created during the relationship.

The betrayal, embarrassment and deep distress suffered by victims cannot be underestimated.

However, because of the relationships in which many of these images are created, granting the same anonymity as is currently given to other sexual offence victims will create difficulties in reporting these offences.

Currently there are a range of sexual offences where the victim is given automatic legal anonymity as soon as they report that offence to anyone. These offences include rape, indecent assault, voyeurism, grooming, trafficking for sexual exploitation. This is not an exhaustive list but you can see the range of offending is very wide.

The law on reporting such offences says that you commit an identification offence if you report ‘any matter’ that would lead to someone identifying that person as being the victim of a sexual offence.

What this means in practice is that where there is of has been a relationship between the victim and the accused, the media reporting the case must be careful to blur the circumstances of the case so that no-one can work out who the victim is.

So sexual offence anonymity means much more than just keeping out someone’s name or photo from a report.

The difficulty with granting this level of anonymity in cases of revenge porn is that the very offence itself tells the reader that at some stage the victim was in a relationship with the accused, and one that was intimate enough to result in the accused having possession of this imagery.

I realise that not all revenge porn offences will fall into this category, but many do.

Therefore the identity of the accused will be a detail that would lead to the identification of the alleged victim and media reporting the case would have little option but to anonymise the defendant too.

This will mean that such cases go unreported. The media are accustomed to anonymising victims in sexual offence trials, but if the defendant is anonymous too, then the report means nothing to the reader.

Furthermore, if someone is convicted of such an offence, then surely the community needs to know about their behaviour, so as to warn others who might get into a relationship with them.

The answer could be to give victims some form of anonymity, but one that would not by implication require the anonymisation of the defendant. This solution might appear attractive, but as explained above, it will mean that the victim could be identified by those in their community who knew they were in a relationship with the accused.

Another answer is to give full sexual offence anonymity to victims, but that the Crown Prosecution Service give guidance to the media on what they will regard as an identifying detail triggering media prosecution. This seems to be a bit of a botch and will still lead to the identification of victims.

I don’t have an easy answer to this I am afraid, but these questions must be considered before we legislate and effectively anonymise people guilty of a very serious offence.

The Sun’s ‘Queen Backs Brexit’ splash – issues for IPSO

A QUICK post on the dispute that has been thrown up by The Sun’s sensational splash claiming that the Queen support ‘Brexit’.

brexitsunsplash

The Palace has complained over the story to IPSO on the grounds of accuracy.

A reminder of what Clause 1 of the Editors’ Code of Practice actually says:

1.   Accuracy

i)  The Press must take care not to publish inaccurate, misleading or distorted information or  images, including headlines not supported by the text.

ii)  A significant inaccuracy, misleading statement or distortion must be corrected, promptly and with due prominence, and — where appropriate — an apology published. In cases involving IPSO, due prominence should be as required by the regulator.

iii)   A fair opportunity to reply to significant inaccuracies should be given, when reasonably called for.

iv)  The Press, while free to editorialise and campaign, must distinguish clearly between comment, conjecture and fact.

v)    A publication must report fairly and accurately the outcome of an action for defamation to which it has been a party, unless an agreed settlement states otherwise, or an agreed statement is published.

I suspect that when IPSO considers this – assuming of course that no agreed remedial action has taken place -it will not boil down to a straight dispute with the Queen’s representatives denying she ever said such a thing and The Sun saying they stand by their sources.

I think that the crux of the matter will be the accuracy, or otherwise, of the headline.

If you read The Sun’s story it might be suggested by the Palace that it does not support the ‘Queen Backs Brexit’ headline. While it may suggest she holds Eurosceptic views which she has voiced in the two meetings mentioned in the story, this does not,in the Palace’s view, amount to ‘backing Brexit’.

It is to my knowledge, the first such complaint by the Palace on behalf of the Queen herself – though complaints have been made in the past on behalf of more junior Royals.

The Sun has robustly defended its story in the past couple of days, saying they had ‘other information’ that meant they were confident the story was accurate. If that information was from a confidential source that could not be mentioned in the story itself it might be enough to defend the story itself, but I am still not sure it shores up that headline.

Of course The Sun will got for the strongest headline possible – Queen expresses Eurosceptic views in meeting with MPs’ is not going to see it flying off the newsstands is it?

It will be a very interesting case to watch when it comes to IPSO for adjudication.

Finally, briefly, can we put to bed any suggestion that The Sun should not have run this story?

Some may think it was wrong for such information to be leaked, but any misdeed is on the part of those leaking the information, not The Sun in publishing it.

The Sun is a newspaper, and a very good one at that, and this is a very big story. If it is confident the story is right then of course it should publish it.

The big question is whether it will get away with that headline.

 

 

 

Sexual offence anonymity – newsrooms beware

JOURNALISTS need to be very careful with any detail they report about an alleged victim of a sexual offence, as the conviction of former Sun Editor David Dinsmore demonstrates.

The Sun published a photograph of the 15-year-old victim of Adam Johnson- the Sunderland and England international who was convicted of sexual offences against her last week.

The Sun had done a number of things to try to ensure she could not be identified from the photo – they had changed her hair length and colour; they had removed the entire background of the original photo and they had Photoshopped her onto an entirely unrelated background.

However, this was not enough to avoid a decision to bring an action and for the former editor of The Sun to be convicted.

What journalists should note from this case is the impact a Facebook audience had on identification of the victim. The court said that some Facebook users familiar with the image would still recognise her despite The Sun’s efforts.

It is important to understand the test that is applied to determine whether a victim has been identified here. It is not ‘can any man or woman in the street identify the victim from details in the report’. The test is ‘can someone who already knows this person realise they are a victim as a result of any detail in this report.’

People who know the person will have lots of knowledge of context and background which might allow them to identify a victim where the ordinary man or woman in the street would not.

For example, one newspaper was prosecuted for including the fact that the victim in a case had cerebral palsy. This was given in open court and no order was made preventing publication – the courts expect publishers to make their own judgement here and to exercise proper caution.

That detail would not allow the whole world to identify the victim, but in the context of the case, knowing who the defendant was and the area in which the offence was committed, it was a detail leading to identification and the publication was convicted.

Some points to remember about this area of law:

  • A victim gets legal anonymity as soon as the report the offence
  • That report does not have to be to the police, it could be to anyone – a doctor, teacher, work colleague, passer-by – any third party
  • Anonymity lasts a lifetime and is unaffected by the outcome of any proceedings
  • Adult victims can waive their anonymity, in writing
  • Child victims cannot give such a waiver and their parents or guardians have no legal power to do so either
  • An alleged victim who is subsequently prosecuted for an offence in relation to the report, such as perjury; perverting the course of justice or wasting police time lose their anonymity
  • Prosecutions for identification are sometimes brought against the publication and the ‘responsible journalist’ which is often the editor, but chief subs, night editors and reporters have also faced such a prosecution
  • Prosecution is for a sexual offence

It is this final point that journalists should be particularly wary of – this is a criminal conviction for a sexual offence and can have a massive impact on a journalist’s life.

If convicted you have a criminal record which will come up when anyone does a DBS (formerly CRB) check on you. The result they will receive is that you have been convicted of an offence under the Sexual Offences Amendment Act.

One editor I know was facing such a prosecution and was planning a holiday to the US at the same time. He was told by the US authorities that he would not be granted a visa is he was convicted.

In many cases the CPS has dropped the case against the journalist where the publication itself enters a guilty plea. However, this did not happen in the case of David Dinsmore, a clerical error in this case meant The Sun escaped prosecution whereas he did not.

In my view this is an appalling piece of law. To equate what is often an accidental identification of a victim with an act of sexual violence is repellent. It is yet another piece of law used to criminalise journalism.

Of course journalists should take great care with victims and by all means prosecute them where they do not – but not for a sexual offence. It could quite easily be redefined in a Courts Act, or as a contempt.

Until that happens though, this is yet another area where great care needs to be taken by journalists.

If you want your newsroom properly trained to avoid this, and other legal problems, details of the courses I offer can be found on the Training page.

The continuing threat of contempt

THE publisher of GQ magazine was recently fined £10,000 in a case that reminds us contempt of court remains a serious legal threat to journalists.

GQ was found guilty of contempt last year after they published an article by US journalist Michael Wolff during the phone hacking trial of Rebekah Brooks.

Last month they were fined £10,000 for the offence, which is pretty low for contempt fines – courts have unlimited powers of fine for contempt. Those of us with long memories know The Sun set the record when it was fined £80,000 for contempt and it’s then editor Kelvin McKenzie was personally fined £20,000 (and that was in the ’90s, so allowing for inflation that would be an even more savage fine today.

The GQ article was a piece of commentary, and it was run in the magazine during the trial itself. It also included certain information that the jury had not been told about during the trial.

The contempt proceedings are reported by the Guardian here, and last week’s hearing to set the fine can be found here.

Some points about the case worth noting:

Firstly, journalists will often point out that jurors are warned not to do Internet research about a case and so any juror finding the material must have ignored that warning. That sounds logical on the face of it, but in practice that is not how things work.

This was a contemporaneous report, not something sitting in GQ’s online archive that a juror had to unearth. It was published during the trial and was trailed in the front page of the magazine.

Jurors are warned not to do research, but they are not told to avoid the daily reporting of proceedings. Fair, accurate reports of the day’s evidence are not a contempt risk, so long as they stick to what the jurors have heard or seen in court that day. The GQ article went beyond that and included information the jury had not heard as well as suggesting Rebekah Brooks was a disreputable woman.

Any commentary attacking the character of a defendant during trial is a real risk of contempt, unless, of course, it was given in evidence during the trial and so would have been heard by the jury.

Secondly, even if the material was published before trial and unearthed by a juror ignoring the judge’s warning, the publisher could still be prosecuted. The Attorney General and the courts take the view that the publisher is wrong for putting it there and the juror is wrong for looking for it, so both could be prosecuted.

Finally, it illustrates the perils of ‘comment’ journalism, which is very popular at the moment. In many areas it is completely risk-free, but running commentary on a live court case that is being tried by a jury is fraught with danger.

This threat to fair trials posed by prejudicial online material is one of the reasons we have seen an increase in the number of contempt prosecutions in recent years. The last Attorney General, Dominic Grieve QC warned when he took office that the so-called fade factor, the idea that prejudicial material published at the time of a crime was safe because it would have faded from a juror’s memory by the time of trial, no longer held true in these days of searchable online publication.

The current Attorney General, Peter Wright QC, does not seem to share quite the same enthusiasm for prosecution as his predecessor, but the GQ case should serve as a warning to editors that he is prepared to prosecute where publications overstep the mark

GQ were able to point to mitigating factors which helped reduce their fine. They had taken legal advice over the article, so it was not a case of them being reckless about contempt, even though they made the wrong call on the day. They withdrew thousands of magazines from circulation and pulped them when the legal problems with the article became clear. They also paid the AG’s prosecution costs of £50,000.

If you want to avoid contempt of court, you could start by reading my post on doing just that. It remains by far and away the most-read post on this site, which perhaps shows how worried journalists are about it (although in reality libel is much more frequent and potentially more expensive).

In the long run though, I wonder how long contempt can try to hold back the tide of prejudicial publication in high profile trials. You only have to take a brief look (though definitely not if you are a juror in the case) at some of the social media postings about the trial of Adam Johnson to see that the law is struggling here.

You might argue that no rational juror would take any notice of social media blowhards with minimal followings. But some of the people commenting are well-known themselves and clearly know nothing of this area of law (and why should they) or else do not think it applies to social media.

They are wrong, but it will take a prosecution to hammer home that message. If the Attorney General is prepared to prosecute a newspaper with 50,000 readers, how can he justify not prosecuting someone with a million Twitter followers?