In the case of Ewing v Crown Court sitting at Cardiff and Newport ( EWHC 183 (Admin)) the Divisional Court confirmed an important feature of the open justice principle: that permission is not needed in order to take notes in Court. Although the Court may, for good reason, withdraw the liberty to take notes, the default position is that anyone who attends a public hearing is free to take notes.
The claim arose out of decision made by HHJ Crowther QC during appeal proceedings at Cardiff Crown Court on 7 and 8 April 2014 and (adjourned part heard to Newport Crown Court) on 30 June and 1 July 2014.
The appeal was brought by Maurice John Kirk in respect of a conviction for common assault. The background is complex but Mr Kirk has been in conflict with the authorities in South Wales for many years and has been prosecuted on numerous occasions. He deals with many of his cases on his blog “Flying Vet challenges South Wales Police“.
At the commencement of the hearing on 7 April 2014 the Judge noticed someone in the public gallery making notes and indicated that he would hear any application to do so. He added
“[H]enceforth any taking of notes without permission will be regarded as a contempt of court and will be dealt with as such.”
Mr Ewing (who was himself declared a vexatious litigant in February 1990) took notes for Mr Kirk for part of the hearing. During the afternoon Mr Kirk found his glasses (and so was able to take his own notes). The Judge then ordered Mr Ewing to stop taking notes.
Mr Ewing sent a letter of claim to the Court which replied stating that the “convention” that members of the public require permission before taking notes exists so as to prevent forbidden or prejudicial material from entering the public domain.
Burnett LJ (with whom Sweeney J agreed) noted the centrality of the principle of open justice to the rule of law . This could be curtailed by statute or rules of court but none were relevant in this case .
He went on to point out that there was no legislation or practice direction governing note-taking in the Crown Court .
He also noted that Lord Chief Justice’s Practice Direction on live text communications, which drew a distinction between media representatives and members of the public (Practice Direction 6C [pdf]) – a media representative or legal commentator may use live text-based communications without the permission of the court whereas a member of the public must ask for permission.
The only relevant guidance appears to be that produced by the Court Service for court staff on “Note taking in the public gallery of criminal courts” which reads as follows
“It is accepted that justice is administered in open court where anyone present may listen to and report what is said. There can be no objection to note taking in the public gallery unless it is done for a wrongful purpose; for example to brief a witness who is not in court on what has already happened. This may occur in the Crown Court, where witnesses who have yet to give evidence are usually kept out of court and in civil cases where a judge has directed that a future witness should be out of court while other evidence is being given, or the hearing is in chambers.
Court staff need to be alert, but it is not for them to prohibit the practice. Courts should not place notices in the court building forbidding note taking. If any member of the court staff sees a member of the public taking notes and there is some reason to suspect it might be for an improper purpose, he or she should report the matter to the clerk of the court (or to the judge …) and ask for directions. The clerk should, if possible, make enquiries of the member of the public concerned or direct an usher to do so. If the result of the enquiry does not allay suspicion, the matter must then be reported to the judge.” 
Burnett LJ held that this guidance was correct “in identifying the default position as being that those who attend public court hearings should be free to make notes of what occurs” . He went on to say
“there is no good reason why the starting point should be that note-taking is not allowed unless permission has been sought and granted. Note-taking by members of the public is unlikely, without more, to interfere with the due administration of justice. The reasons for a distinction being drawn between ordinary members of the public and journalists and legal commentators in connection with live text-based communications (described in the Practice Direction) do not apply to ordinary note-taking” .
This default position was subject to the control of the court. A judge could consider withdrawing the liberty to take notes if it was likely to interfere with the proper administration of justice.
On the facts of the case the judge had been wrong to hold that notes should not be taken unless permission was first sought from and granted by the court. The other reasons advanced by the court in correspondence provided no proper basis for supposing that there would be any interference with the proper administration of justice.
Burnett LJ held that it was unnecessary to consider whether the right to take notes was guaranteed under the European Convention on Human Rights in the light of his conclusion applying the common law.
This appears to be first case in which the issue of note-taking in court has been properly considered. The Court made it clear that the practice of some judges and magistrates to require members of the public (and sometimes journalists) to obtain permission to take notes is incompatible with the principles of open justice.
In relation to note-taking, no distinction is drawn between journalists and members of the public – the default position is that anyone can take notes without permission.
This decision is plainly right and is a welcome clarification of the position. It is to be hoped that it will mark the end of routine and unjustified judicial interference with legitimate note taking by members of the public.