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.

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.

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?

Police Harassment Warnings – Reporters Beware

THE Independent Police Complaints Commission has just upheld a decision to issue a reporter with a harassment warning in a case which should worry all investigative journalists.

Croydon Advertiser chief reporter Gareth Davies contacted Neelam Desai by email and in person following her conviction for frauds totalling £230,000.

Desai claimed the contact was more widespread, but the Advertiser is adamant only two contacts were made.

Davies was later visited by three officers from the Metropolitan Police who issued him with a Police Information Notice, also knows as a harassment notice.

Davies and his paper complained about this to the Met, and to the Independent Police Complaints Commission. Both the Met and the IPCC have found nothing wrong with the decision to issue the notice, you can read the coverage in UK Press Gazette.

At the time of issuing the notice the Metropolitan Police issued this statement:

“The harassment letter was issued by a local Safer Neighbourhoods team in response to a number of reports from the woman, who felt she was being harassed. The officers did this to ensure that the reporter was fully aware that allegations of harassment were being made against him.

A harassment warning letter does not constitute any kind of formal legal action, is not a court order and does not represent any form of conviction or caution. When a harassment warning letter is issued, there is also no implication that the alleged harassment has taken place.”

What I think is particularly disturbing about this case is the way in which such notices can be issued and the lack of an effective right of appeal.

I looked around the for statutory basis for a PIN and, frankly, struggled a bit and that is because they do not have any statutory basis. It appears to be a power that police have taken upon themselves.

This has been the cause of some concern and was the subject of a House of Commons report in March this year.

If you look at the conditions for issuing such a notice listed there, they are:

” there has been a “course of conduct” (not just one event); and

the perpetrator knows or ought to know that their conduct amounts to harassment.”

There may in this case have been a ‘course of conduct’ in that two approaches were made to Desai. However, I would be very surprised if there was a single journalist in the country who ‘ought to know’ that one email and one approach in person would amount to harassment.

If that is the case then pretty much every investigative journalist in the UK should be served with such a notice. If this logic were to be applied elsewhere, criminals, con artists and rogue traders nationwide will be able to get journalists off their back by going down to their local police station and complaining about harassment.

The other issue, over which there is some dispute, is the effect of a PIN. It has been suggested that such a notice will appear on a DSB (formerly known as a  CRB check) into a person’s criminal record. Clearly this is a very serious matter, though a spokeswoman at the IPCC suggested that it was not the case that such notices would always appear.

What is disturbing is that the only avenue of appeal is to the force issuing the notice, and then to the IPCC, which in itself does not reinvestigate the case.

There are no doubt many cases where harassment notices are a very important tool for the police in preventing harassment. I do not think the intent in creating them was to allow convicted criminals to evade legitimate inquiries from a journalist.

Any readers of this site will already know that there are myriad laws in the UK that make a journalist’s job that much more difficult. Here is yet another.

The UKPG has set up an online petition calling for the withdrawal of the harassment notice issued to Gareth Davies.

Worrying orders of the court

A CASE in the magistrates court on the Isle of Wight should cause concern for reporters covering the courts.

The case, detailed here in Hold the Front Page, concerned neglect of a child, and at an earlier hearing magistrates had imposed a S39 order under the Children and Young Persons Act 1933 anonymising the child.

This has the effect of anonymising the mother of the child as well, because you cannot practically report the case in such circumstances and name the mother, because it will lead to the identification of the child.

The Isle of Wight County Press wanted to challenge the order, as it is usually accepted that very young children, in they case they were one and two, are too young to be affected by negative publicity and do not need such an order to be made. This is set out quite clearly in the Judicial College’s publication – Reporting Restrictions in the Criminal Courts – every court reporter should have a copy of it.

However, as is detailed in HTFP, the reporter in court was ‘put off’ by the clerk who said there were no new facts to warrant reconsidering the order. Note to reporters – do not be ‘put off’ insist on the court at least considering your request.

In my view what is concerning about the case though is not the court’s failure to hear the paper’s objection, but it’s reasons for imposing the order in the first place.

The magistrates placing the order were concerned that online publication mean that a very young child might be subject to adverse effects of publicity at some time in the future.

This line of reasoning is not new. I have heard it expressed now a number of times by judges and at Law Commission seminars. There is clearly a concern that the cliche of today’s newspaper being tomorrow’s chip-wrapper no longer holds true and that online archives are changing attitudes.

I expect this issue to emerge again and again in years to come and the media need to come up with a good answer, or the courts will continue to shut down their reporting.

My thanks to Rob Preece @RobPreeceOnline for pointing this case out to me.

Getting a defendant’s address

This is a quick post on what to do if a court is obstructive in providing details of a defendant, including their name and address.

In the various training sessions I carry out for media, this is a fairly constant complaint – that magistrates, judges and court staff are sometimes reluctant to give reporters access to very basic details about a defendant.

There are some very limited circumstances in which a court can restrict reporting of some details about a defendant, but these are exceedingly rare, and in any event should be enforced by the relevant court order, allowing for representation from the media.

This is not the situation I am talking about here. I am told by many reporters in different parts of the country that when they ask for a defendant’s address in particular, they are told that the court will not provide that information even where there is no legal reason whey they should not do so.

Any judge, magistrate or member of court staff behaving in such a manner is wrong and here is why.

Firstly, it is contrary to the principles of open justice. In normal proceedings everyone is properly identified – defendant, witnesses, judges, magistrates and yes, even the lawyers.

Secondly, a defendant’s address is part of his identity, it differentiates him from other people of the same name. This was stated very clearly by the Record of Liverpool David Clark, in R v Carroll in 2000, where a defendant fearing reprisals wanted his address to be withheld.

Thirdly, a court behaving this way is acting in defiance of its own rules on reporting restriction. Any reporter facing this situation should refer the court to this document – Reporting Restrictions in the Criminal Courts – which sets out their obligations.

See page 23, which explains the requirements on the courts to make lost available and that, “At a minimum the lists should contain each defendant’s name, age, address and, where known, his profession and the alleged offence. Courts will not breach the Data Protection Act 1998 by providing journalists with such information.”

It is perfectly clear what the courts should provide. Any judge or magistrate who objects to providing this information really ought to take the matter up with the Ministry of Justice and refrain from restricting information on a whim.

If you want me to train your staff in challenging obstructive courts, and other media law matters, contact me at davidbanksmedialaw@gmail.com

IPSO, Sunday Mirror and Brooks Newmark

THE Independent Press Standards Organisation is being tested pretty early on in its existence after the revelations in the Sunday Mirror which led to the resignation of Brooks Newmark MP.

The story by now is widely known – he sent a picture of himself, or rather part of himself, to what he thought was a young woman, but which in actual fact was a reporter who had set up a fictitious social media account.

This raises a number of ethical issues, some of which I will try to discuss here, including subterfuge and privacy.

There are potential legal issues over data and the photographs of two young women used without their permission on the fake accounts, but they have been well covered elsewhere by Jon Baines among others, so I will only look at the ethical issues of their use here.

The core issue in this is whether the use of a fake account to contact Mr Newmark was justifiable. This kind of activity is covered in the Editors’ Code of Practice under clause 10 on subterfuge and the use of clandestine devices.

As a rule such tactics should only be used where it can be shown to be in the public interest to do so and it is the only way of obtaining the information.

Is it in the public interest to reveal Mr Newmark’s activity in this way? The Code of Practice defines public interest as covering, among other things detecting or exposing ‘serious impropriety.’

Mr Newmark was a minister of state and charged with bringing women into politics. If a man in his position is sending naked pictures of himself to a young woman he does not know, I think it is a matter of serious impropriety and therefore of public interest.

But that is not the end of the public interest test here. Importantly, there has to be a public interest reason established before any use of subterfuge. This is to prevent so-called fishing expeditions which are retrospectively justified by the wrongdoing they unearth.

On the face of it then, and as many commentators said, the Sunday Mirror story looked problematic. The fake Twitter account, under the name of Sophie Wittams, had followed a number of Tory MPs and had tweeted to them. It appeared that Newmark was the only one to swallow the bait. Critics said it was a classic fishing expedition, and therefore it was unjustifiable under the Code.

However, the reporter who had got the story was Alex Wickham, who works for the Guido Fawkes blog. Yesterday Guido posted an explanation of the story, which can be seen here.

In this explanation it is denied that this was a fishing expedition, but rather, acting upon information received, it was targeted on Newmark. The follows of other MPs were just to make the fake account look genuine.

IPSO a now has to pick its way through these two conflicting versions of events, but that is not as difficult as it may seem.

If Newmark was the target, not all the MPs, then there ought to be documentation – emails, notes or memos – which confirm that he was the target when the investigation was set up.

Furthermore, it ought to be possible to show that the way the fake account behaved toward innocent MPs followed for ‘cover’ was different to the way it interacted with Newmark.

Showing this preparation and behaviour would verify the account of events given by Guido, and it can be done without revelation of confidential sources who might have put them onto the story in the first place.

So, it will require a little forensic investigation by IPSO of the birth of this story and how it was pursued.

This still leaves the issue of the use of photographs of two women by the fake account. I think, on the face of it, this is difficult to justify ethically and Guido does not mention it in the defence published yesterday. Though the pictures were publicly accessible, their use in this way could, I think, be a breach of the clause of the Code which covers privacy. The editor-in-chief of the Sunday Mirror, Lloyd Embley, has already apologised for their use.

Critics of IPSO have already decided that this was a fishing expedition in breach of the Code. That might be true. It might also be true that there is an arguable public interest defence here.

I think we should wait to see what IPSO unearths.

* Declaration of interest. One of the many companies I work with is Mirror Group Newspapers, where I provide law and ethics training, and I occasionally write for The Daily Mirror and its websites.