Journalism, Judges and Justice: a crisis in court reporting? – Paul Magrath

27 04 2018

A report on Open Justice from the Chartered Institute of Journalists warns of “an unprecedented, and sustained, attack on the journalism profession, which has taken a toll on our ability to cover courts, and report on their function”. Its author is Tim Crook, Vice President of the CIOJ and Professor of Media Law at Goldsmiths.

He outlines his concerns with coverage and access to proceedings at the Royal Courts of Justice, based on a visit with his students, and makes a number of proposals to open up justice to better public scrutiny. Although the recommendations are mainly targeted at the Judiciary and MOJ/HMCTS, Crook’s observations in the Appendix also point to issues with relying on the mainstream media to report the courts systematically.

You can read the full report here. In this post, we examine and comment on his recommendations and some of his criticisms of the courts and judiciary, published on the CIoJ’s website under the title Why Open Justice Needs Improving at Britain’s Biggest Courts Centre.

The Recommendations

The first recommendation is a general one for judges to engage with the public and the media and provide better access to information.

This seems fair enough, but the fault lies less with the judges, who are probably less reticent than their predecessors in decades gone by, and more with the longstanding but now somewhat antiquated code of conduct by which they are bound – one which inhibits them even from writing or commenting on a blog, or participating in exchanges on Twitter. (For more on this, see Judicial blogging: How judges get around the official ban on writing or contributing to ‘web logs’ )

Case ruling summaries

A more specific recommendation is for judges to produce a one-page summary and explanation of each and every ruling (ie judgment). He cites the UK Supreme Court’s website as an example of good practice.

Some judges already do this, but usually only in cases where it is clear in advance that there will be strong public interest and media coverage. For example, Mr Justice Warby’s judgment in the recent Right to be Forgotten cases, NT 1 and NT 2 v Google [2018] EWHC 799 (QB) was accompanied by a four-page summary to help lay readers understand the judgment.  Likewise, in the high-profile judicial review of the decision to release the notorious rapist John Worboys, R (DSD and NBV) v Parole Board for England and Wales [2018] EWHC 694 (Admin)[2018] WLR(D) 195, the Divisional Court provided a five page summary via the Judiciary website.

But the idea that this should be done, as a matter of course, for the thousands of judgments issued in the senior courts each year, seems unrealistic. As one judge, when asked about this, remarked:

“We do try to condense in this way, in high profile cases. But however desirable, I am afraid that it is impracticable to do it every time. This suggestion may be driven by the trend towards armchair reporting, rather than attending at court, and to the pressures of time that mean our full judgments are not always read by reporters. Judges also face pressures of time, and this is a time-consuming task.  What we can try to do is word the actual judgments in a more accessible way”.

The suggestion that judgments should be written in a more accessible way is one that has been tried with notable success in the family courts, where judges have even written judgments specially designed to be understood by parties such as adults with learning difficulties and children. See for example, Peter Jackson J’s judgment written as a letter to ‘Sam’, the child in the case, in Re A (Letter to a Young Person) [2017] EWFC 48; and the judgment of Deputy District Judge Reed in Jack (A Child : care and placement orders) [2018] EWFC B12. In the latter case the judge pointed out at para 57: “I had already typed typed my judgment so that D can have it read and explained to him, so it hasn’t taken very much extra time to get it ready to publish.” But obviously to do a plain English and/or anonymised version for all family cases would be a considerable extra burden.

The Supreme Court is well resourced, with its own website and press team, so producing summaries (written by the enthusiastic young lawyers who work as judicial assistants) for the relatively modest number of cases which they hear is not a major burden. But the Ministry of Justice website, on which the report recommends these summaries being uploaded, does not currently even host most judgments – only those from tribunals – leaving it to under-resourced not-for-profit third parties such as BAILII and the ICLR and commercial publishers to do the bulk of the work. The separate Judiciary website does host a few judgments, but only the ones it thinks there will be press or public interest in. (Some of these already do come with a separate press summary, as noted above. No doubt there could be more.)

Crook also omits to consider an important point about the independence of the judiciary, to which Joshua Rozenberg has recently alluded with regard to increased digitisation of court proceedings: is it right for the Government to wholly host court services, including provision of documents? Or should the Judiciary provide an independent service?

Access to case documents

The next proposal is that skeleton arguments of parties, which are now compulsory for most High Court hearings, should be made accessible to journalists for all cases.

In fact, they already are. Accredited journalists attending hearings in open court at the RCJ are permitted to ask the court clerk or associate for sight of documents such as the claim form, appellant’s notice (if it’s an appeal), and the skeleton arguments. (See, for example, Civil Procedure Rules, Practice Direction 52C, para 33.) They can read and take notes from these documents in court, and report what they say, subject to any reporting restrictions. But obviously that means they need to attend court in person for the hearing.

The recommendation goes further. It suggests these documents be made available on a website resource, preferably hosted by the Ministry of Justice, where case listings could be accompanied by a digital folder of resources.

Although in one way this may appear to pander to what the anonymous judge quoted above called ‘armchair journalism’, in another it accords with the entire logic of the current HMCTS Reform programme. That logic dictates that in future all case management should be ‘digital by default’, and do away not only with paper filing but also with many of the physical hearings which could just as well be done by telephone or video conference. In this seamlessly digitised online model for the administration of justice, true transparency would require public and media access to the case files via the internet, subject to suitable controls to prevent data abuse. (Tim Crook and the CIoJ are by no means the first to have suggested it, either. Professor Richard Susskind, the alleged ‘guru’ of the HMCTS Reform programme, has been saying something similar – most recently in an edition of Clive Anderson’s Radio 4 programme, Unreliable Evidence, which featured a panel discussion on the Online Court. And, going back even further, see Magrath, Judgments as Public Information(2015) 15 Legal Information Management 189, at 193.)

Tim Crook makes the point that the current listings system is wholly inadequate in terms of informing the potentially interested press and public as to the nature of the cases due to be heard. This again is a good point, and one other journalists have repeatedly made (notably Brian Farmer and Mike Dodd of the Press Association), particularly in relation to the family courts where even the names of the parties are, of necessity given the subject matter, often anonymised.

Journalistic facilities in courtrooms

Everything should be done to encourage and invite a journalistic presence in court, it is said. Court officials should be trained, ready and willing to enable journalists to sit in the sections for press/media in court.

This might be a fair point if discussing local courts up and down the land, particularly some of the newer ‘multi-purpose’ designed courts, and regional courts where journalists and members of the public have faced difficulties in accessing the courtroom, or taking notes. But as the recommendation is primarily aimed at the Royal Courts of Justice in London, the criticism seems unfair. These older courts are all fitted with press benches, quite separate from the public gallery. They are certainly adequate for the small number of journalists who usually attend, and most court staff are aware of their needs. In the very rare cases where masses of reporters turn up, the hearing may be moved to one of the larger courts; or as in the case of the Leveson Inquiry in 2011-12, an overflow marquee provided. Here, Crook rather unfairly lays the blame on the courts, rather than the media lack of interest in attending that is evidenced by his observations.

There is also a dedicated press room in the main RCJ building. However, it is fair to point out that facilities for reporters may be less comprehensive in the satellite buildings, such as the Rolls Building and the Central Family Courts and Court of Protection. Outside London, with courts being closed and consolidated as part of the HMCTS Reform programme, it will be increasingly difficult even for the parties to access a local court building, so journalists may find themselves some way down the priority list in terms of access and facilities.

Digital audio and video repositories of rulings

The report says that much more could be achieved by the judiciary engaging with the use of multimedia, for example by uploading sound recordings of rulings (i.e. judgments – but why not also hearings?) to an accessible platform. This fits in with the point (above) about making case documents accessible. And it is something already being done by the Supreme Court. It would certainly increase transparency, and is technically attainable, subject to the usual problem of resourcing.

Court reporting specialist apprenticeships

To halt the evident decline in professional journalistic reporting at the RCJ, the report recommends a partnership between the MOJ and the Press Association to inaugurate four court reporting apprenticeships to boost coverage and promote understanding.

This idea sounds similar to the BBC local democracy reporters scheme, which provides funding for 150 trainee reporters to boost coverage of local government and the courts, and for their copy to be made available to local press.

Crook provides an interesting and original proposition that marries potentially mutual interests in training and media needs. However, as TP previously commented when we last heard proposals for subsidy of commercial media court reporting services, financial support for the press cannot be the whole a solution for the crisis in court reporting. Subsidy of the commercial local press won’t of itself lead to improved court access, reporting reach and quality – the answer to real public understanding has to be broader than this.

Online platform for daily Press Association coverage

Leading on from that, is the suggestion that the PA, which currently operates a subscription model to circulate news to publishers, should set up a platform with links to social media to flag up its reports of hearings in the RCJ. This would provide free access to the first paragraph, say, of a news story – an abstract or teaser for the full story, but enough to give the public a flavour of what’s going on. Of course, it would all depend on the PA thinking it was worth the expenditure of its limited resources – as the report notes, the PA has reduced its staff at the courts drastically in recent years.

In our view, it would be important to consider alternative arrangements and providers as well: might a not-for-profit model offer better access and value to the public? For example, the Transparency Project is trying to get the rules relaxed to allow citizen journalists in the form of legal bloggers to plug the gap in family case coverage.

RCJ judge and media bench committee

Such a committee might only need to meet a couple of times a year, but it would enable senior judiciary and court service officials to discuss with the Press Association and other media representatives matters of mutual interest or difficulty and promote understanding. It would also chime with the efforts of the MOJ working party on open justice.

This proposal seems sensible, but as with nearly all the recommendations it presumes that the press and media are the only bodies who matter when it comes to promoting open justice. The interests of the general public are only to be served by the media, it seems, acting (in the time-honoured expression) as the ‘eyes and ears of the public’. No consideration is given to other commentators or researchers for whom equivalent assistance and resources might be forthcoming, such as legal bloggers or academics or students.

However, if facilities such as online access to court documents and to recordings of hearings and judgments were provided for the press, no doubt they could also be provided for the public as a whole, and that would include legal bloggers and other commentators, and academic researchers.

The appendices

The recommendations are followed by two appendices, in the first of which Tim Crook recounts a day spent in the RCJ and the six cases he and his students attended. He makes a number of criticisms (of the press) about the lack of proper coverage of cases of public interest, but also contends that the failure of journalists to attend hearings can be blamed on the increasing anonymisation of parties in litigation, thus leading to a decline in open justice.

Reliable data has not been collated on whether the number of cases in which parties are anonymised is actually increasing, or that judges are dishing out reporting restrictions more freely than they used to, but it is likely the number of cases affected is tiny compared to the whole. To blame lack of coverage on an ‘expectation of anonymity’ seems contrived, and to suggest that it is a ‘driving force in the decline of open justice’ on the basis of little more than speculation seems absurd. A much more potent cause must be the apparent unwillingness of media organisations to devote resources to something that requires time, specialist training, and proper reporting skills.

Conclusion

The report makes some good points, including concrete proposals for increasing online transparency and open justice in the Royal Courts of Justice, via the internet. But it sounds a hysterical note in some of its analysis of the problems facing media coverage of the courts, and misdirects some of the criticisms, and this somewhat undermines the authority of the report.

It also fails to consider some of the legal and ethical complexities of the delivery of open justice in the digital era, with regard to issues of rehabilitation and privacy of the subjects of courts data. As we have previously written, there are difficult questions to consider about how much digital data should be shared and to whom, and the social and legal implications of online data sharing. There are risks, but also opportunities for transparency, with the transition to digital case management and dispute resolution. This would be a vital consideration for any new committee.

This post originally appeared on the Transparency Project blog and is reproduced with permission and thanks.


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