Court Reporting 7 - Open justice

In 1913 the House of Lord affirmed the common law rule that normally courts must administer justice in public. The benefits of open justice include:

• it promotes public confidence and respect for the administration of justice
• stimulates informed debate about the criminal justice system
• allows the public to scrutinise the processes by which criminal cases are investigated
• if justice is to be done, it must be seen to be done

It is generally acknowledged that departing from the open justice principle by excluding journalists and the public from a court hearing is only justified in these circumstances:

• when their presence would frustrate the process of justice - affecting the willingness of a victim to give evidence
• when unchecked publicity would defeat the object of proceedings e.g. a case concerning national security or trade secrets
• when the court is exercising a parental role to protect the legitimate interests of vulnerable people e.g. children or people with mental incapacity or mental illness

In chambers - when a hearing is held in the judge's chambers or another room and not a formal courtroom, and is not public

In camera - when the public and media are excluded from all or part of the main hearing of a case. Effectively in secret

In private - covers both above terms. But a hearing may be in chambers for administrative convenience rather than a decision ruling it should be in private

The act says magistrates' must sit in open court when trying a case or considering jailing someone, or hearing a civil law complaint, unless other law permits them to sit in private. There is now a very wide exception in the 1980 act - inserted as Sections 16A-16F by the Criminal Justice and Courts Act 2015 - which is the single justice procedure. In this, a case may be tried in private, in the defendants' absence, and a fine imposed if they are convicted.

Parliament has decided that the public should not be allowed inside youth courts to protect them from adverse publicity. But the act gives 'bona fide representatives of newspapers or new agencies' the right to attend. Reporters may need to cite this to be allowed in and can direct court staff to general guidance issued by His Majesty's Courts and Tribunal Service. They must also show a press card.

The SJP was introduced in 2015 to save costs. It permits a single magistrate to deal with some types of criminal case in private, including rail fare and TV licence evasion. In the SJP, the defendant does not need to attend court of the offence is admitted or they did not object to a private trial.

As it operates in private, journalists cannot attend to hear evidence or mitigation. As the magistrates and others have pointed out, the SJP is a deep erosion of the single justice procedure.

The magistrate can order SJP proceedings to be converted into an open court hearing to take place at a later date with the defendant being required to attend.

A High Court ruling has established that common law permits anyone to take notes in public proceedings, either by pen and paper or 'silent electronic means.' However the court can ban this if there is concern it could undermine the process of justice in that case. Criminal Practice Direction 2.3 says no permission is needed to take notes. Any ban must be necessary and proportionate.

Case law says a court must give media and public names of magistrates (Rule 5.8). General guidance from HMCTS in media are entitled to full names of magistrates, judges, and their legal adviser.

Under this rule, press and public, whether in the courthouse or not - can request basic details about a mags, Crown, or Court of Appeal Criminal Division case. Unless the details are not 'readily available' the court officer must supply them if the case is ongoing or if the verdict is not more than six months ago, and there is no reporting restriction prohibiting the details.

The rule says requests can be made orally or in writing and no explanation is needed.

HMCTS guidance is that requests can be made by phone or email, or by word of mouth, allowing reporters to gain basic details of cases thy were unable to attend or were initially unaware of.

These details are:

• date of hearing and dates of future hearings
• alleged offences and pleas
• decisions on bail, committal, or court transfers
• case outcomes
• identification of prosecutor and defendant, defendant's details.

The rule doesn't apply to the defendant's address but HMCTS guidance is that this should be given.

This rule says that requests for details on cases where the verdict was made more than six months ago must be made in writing to the court and the request must explain why. The rules make clear the officer cannot supply the information unless authorised by the court.

This is a document in which each side in court proceedings sets out the bases of their cases. Journalists should normally be allowed to see them to help them report the proceedings.

Journalists may wish to see skeleton documents if a case has not been read out in full or only referred to briefly. In 2019 the Supreme Court ruled that there is a presumption in common law that all types of court should allow non-parties to a case to access documents or other material if sought for 'proper journalistic purposes' and the open justice benefits are not outweighed by any risk of harm it may cause to the judicial process.

A journalist wanting a copy of skeleton arguments should first make an informal request to the party who presented it. 

Says anyone who pays the prescribed fee can obtain copy of the 'statement of case'. This rule also allows anyone to obtain a copy of any judgement or order made or given in public. 

A statement of case does not include witness statements. But rule 32.13 of the CPR says: 'A witness statement which stands as evidence-in-chief is open to inspection during the course of the trial unless the court otherwise directs.' But the court may rule that a witness statement should not be made available because of the interests of justice or the public interest to protect the interests of children or protected people.