It has taken five months for us to obtain the transcript from East London Family Court (ELFC), where our legal blogger Paul was ejected from a court hearing even though there’d been no objections by the parties [you can read about that saga here]. Now we finally have that transcript we have an objective record that we can compare with the written ‘facts and reasons’ later produced by the court, and with Paul’s own account.
Paul has written up his account here. This post is our analysis of what the transcript shows, and our observations of the process. You can read the full transcript here.
What the transcript doesn’t show is that, before coming into court, the legal adviser had made plain her non-evidenced assumption that Paul had been invited to the hearing by one of the parties (something which is both entirely permissible which caselaw and guidance makes clear is not a matter that a reporter should be questioned about).
First, the legal adviser starts off by questioning Paul as to whether he is a lawyer and if so what sort of lawyer. Legal bloggers must have a law degree and either hold a practising certificate, work for a university, or be authorised by the Transparency Project (as currently the only educational charity able to do this). Paul had already provided his credentials in his correspondence to the court, and in our experience this is sufficient. It’s difficult to understand why the legal adviser didn’t simply check the information she had confirmed had been received, rather than subjecting Paul to unnecessary questioning in front of the bench of magistrates. This feels somewhat discourteous given that legal bloggers are regulated (directly or indirectly) fellow legal professionals, and we hope won’t have a chilling effect on other legal bloggers.
Secondly, having correctly identified the rules that apply to the attendance of lawyers as legal bloggers, the legal adviser immediately sets out ‘the issue for the court’ in terms which make clear she is not supportive of Paul’s attendance, and asserting that Paul has told her that the father ‘has contacted them, the organisation that he is working with to specifically have someone in court to then report what has happened in court’ (he had not). She goes on to express her ‘concern’ that ‘it is a difficult case, both parties are litigants in person, and it would be important to preserve privacy of both of those parties and also the child in these circumstances’ (from the transcript it is clear that ‘these circumstances’ are that the father is said to have invited a reporter). This is expressed more in the manner of a submission on behalf of a party than neutral legal advice, and entirely omits reference to the legal test applicable to the exclusion of a reporter. A reporter can only be excluded where necessary on one of the grounds set out in the rules.
It’s impossible not to observe that the fact that the hearing was dealt within a day at magistrates level strongly suggests that it was in fact not a particularly difficult case. The fact that there are litigants in person is an irrelevance, and the privacy point is so generic as to be meaningless – all the cases to which the rule applies are private, and involve children.
Things get worse as we read on, because next the legal adviser goes on to advise the magistrates of her ‘open concern’ that ‘it would not be appropriate in the circumstances of the case that is before me to have matters reported on the basis that the court then has no control, editorial control of any of that information inside whatever blogging is done and the open possibility of matters being misrepresented’. It is clear from very early on that the legal adviser is not drawing a distinction between attendance and permission to report. Yet guidance on legal blogging makes it clear that courts are not entitled to seek to exercise editorial control, that the issue of permission to report is entirely separate from a right to attend and observe and that where there is an issue as to either the test is based on a balancing of the rights such as privacy and freedom of expression. The court ought to (and in our experience usually does) give credit to qualified lawyers for being able to produce a fair and accurate report of proceedings.
Quite understandably, the magistrates ask Paul for his response to the ‘advice [of their] learned legal adviser’ (as described by the Chair).
Next problem – there is reference both by the chair of the three magistrates and subsequently the legal adviser to ‘the projects’, which are ‘not authorised / supported at our level’. They mean that their court is not yet a Transparency pilot court. However, legal bloggers have been entitled to attend non-pilot courts for years – the pilot simply creates a presumption in favour of reporting. Rather than advising the bench that Paul is entitled to attend even if the project (the TIG Reporting Pilot) does not apply, the legal adviser simply draws the bench’s attention to the power of the court to exclude a reporter. She does read out the test set out in the rule, namely if exclusion is
‘necessary in the interests of any child concerned, in or connected with the proceedings, of the safety or protection of a party of witness in the proceedings or a person connected to such a party of proceedings or orderly conduct of proceedings or justice would otherwise be impeded or prejudiced’.
Regrettably, she then goes on to offer, again, her strong personal opinion on the ‘particularly difficult and fraught’ nature of the case and her conclusion that ‘I do not think it is appropriate for there to be anyone in the courtroom and for there to be an audience’. (What the legal adviser should have done is to explain that the exclusion of a reporter should only take place when both necessary and proportionate and invited them to weigh the options, rather than directing them to one conclusion.)
However, this is quite sufficient for the bench, who have been persuaded and are readying to kick Paul out without more discussion: ‘We are minded to accept your advice, would you like us to get on?’ says the chair, inviting further direction from the legal adviser.
Here the legal adviser does at least remind the chair that he does really need to hear from Paul before confirming his decision – and Paul is allowed to explain the distinction between attendance and reporting, and the protections that are in place to protect privacy, anonymity etc, but to the reader it feels like a foregone conclusion. It is Paul and Paul only who sets out the law for the benefit of the bench, but of course they have already given a strong indication that they will run with their legal adviser’s learned advice.
At this stage, Paul also manages to address the apparent assumption about his relationship with any of the parties, saying:
‘this a matter of evidence I think I should be allowed to provide some rejoinder on that as it appears to be a matter of supposition and observation on my behaviour since arriving at the court. All I can say is that journalists are not obliged to disclose the reason why they wish to attend proceedings if they’re permitted to attend proceedings and that applies to legal bloggers as well.
However, I’m perfectly happy to admit that as a member of the Transparency Project, we are notified very frequently by litigants informing us of cases which we think, which they think we might be interested in reporting for public legal education purposes. I make no presumption about that but I’m here as an observer.’
Here it is dismaying to see Paul’s clear and helpful submissions interrupted by the chair who challenges Paul for not giving notice – ‘Have you thought about giving notice?’, he asks. Paul had given notice, the day before, and explains as much. The legal adviser, rather than advising the bench that a) notice is not required by the rules and b) it is difficult to give notice until the court lists have been published (usually late afternoon on the day before the hearing), shuts down the discussion with a curt ‘whilst the gentleman may have emailed the court sir, the notice or the court was effectively this morning. [This of course is not Paul’s fault]. If there are no further submissions from Mr Magrath then sir, it would be a matter for you to make a decision after a short recess.’
Here the transcript shows an ‘[inaudible]’ question from the chair to the legal adviser. From the response of the legal adviser ‘Sir, yes to give it some thought’ the gist of that question appears to have been: ‘Do we need to retire?’
I think we all know where this is going.
After retiring, the magistrates return and give their reasons for excluding Paul, as follows:
‘Mr Magrath, we received your application at very short notice. It has not been properly[?] (sic) to consider your application under the current scheme, which is operating at this court, at the East London County Court. A scheme that does operate allows reporters in front of district judges and circuit judges currently. Magistrates have never been asked to allow reporters.
Looking at the nature of this case there is a history of difficulty between the parents, and this is still a young child aged [age given]. We do not believe it is appropriate for a third party to be in court that may affect the way that the parties respond within this process, therefore we decline your application, thank you.’
There is nothing in those reasons which remotely relates to the legal test or to the competing human rights in play. The entire first paragraph relates to a scheme that does not apply and which Paul has not relied upon. In fact, Paul has not made any ‘application’ at all. He is entitled to attend, and doesn’t have to justify his attendance – not that the magistrates or legal adviser appear to appreciate this. In addition, ‘a history of difficulty’ between parents and a young child in the case could apply to most all private law children cases (by the way, whilst we’ve redacted the age of the child, he isn’t in fact particularly young). And yet the rules on attendance apply to them all, save where the particular features of the case justify a departure from the norm.
That all this took place without the parents being involved or asked for a view at all is quite astonishing and underlines the complete failure of due process that took place at ELFC that day.
This transcript may be just a small snippet of court process, but it amply demonstrates a prejudicial attitude towards legal bloggers, a poor level of understanding and legal advice, a lack of impartiality and a readiness by the magistrates to simply run with the personal opinion of the legal adviser in place of a properly reasoned decision, based on the applicable law.
Worse still, when we compare the court’s full written reasons with what actually took place and the focus of the legal adviser’s and magistrates’ attention, there is a striking mismatch. There is nothing in the written reasons about the pilot not applying or the late notice or the need to maintain editorial control of any reporting, as contained in the transcript. Instead, there is a beefed up description of the alleged complexity of the case:
‘The case before the court has a history of difficulties and entrenched positions between the parents, to the extent that interim arrangements ordered at a hearing on 31 October 2023 had not been adhered to by either party. The child is alleged, by [the mother] to be so upset by the actions of [the father] to the extent that it was affecting his ability to engage with the applicant. The court was concerned that one or both of the parties would use the presence of Mr Magrath to “act out” to the detriment of a constructive hearing and a working solution for the child.’
Not only is the risk of the parties acting out entirely hypothetical, but it also wasn’t properly canvassed with Paul (there is an oblique reference to the parties not having ‘an audience’, but that’s it). In any event, a risk of a parent acting out is patently not a good reason to exclude a blameless reporter from observing. If the court was considering excluding Paul on this basis it should have heard not only from Paul but also from the parties who it thought would misbehave, both out of fairness to them and in order to help form a view as to how best that risk might be mitigated or managed, so as to allow for continued observation. How else could the court balance the relevant human rights and be satisfied exclusion (an interference with Paul’s Art 10 rights) is necessary and proportionate?
At no stage during the hearing was the particular ground relied upon identified by the legal adviser or magistrates, though we can see from the redacted facts and reasons provided to us by the court that the Magistrates have recorded that they base their decision on FPR 27.11(3)(a)(i) and (iii) and (b), namely that
- it is necessary in the interests of any child concerned in, or connected with, the proceedings, AND
- it is necessary for the orderly conduct of proceedings, AND
- justice will otherwise be impeded or prejudiced
In our view, there is precious little to justify such broad grounds for exclusion.
Perhaps most seriously, we also see that in these written reasons, which are provided to the parents as the formal record of the basis of their decision, the magistrates wrongly assert that Paul had told them that the father ‘had contacted the organisation and suggested the attendance of a legal blogger’. This is not what Paul said at all. Whether or not Paul had a source, he did not reveal one. The legal adviser simply assumed it – and ignored Paul’s submissions challenging that assumption. That the magistrates excluded the parents from that part of the hearing where Paul was making submissions and then told them through these written reasons that Paul had made such a statement is really concerning. For a court to tell a party that a journalist has breached a promise not to reveal his source, when that journalist has not in fact done so is serious misinformation. It potentially reduces trust in us as reporters, and could in some circumstances create a risk to a party who falls under suspicion. The fact that this misinformation persists in the formal record illustrates very plainly that by the time Paul was actually allowed to make submissions to correct the ‘advice’ already received, the magistrates had stopped listening.
Although we were not able to sit through the hearing itself, we were provided with a copy of the final order on application. As far as we can tell from that, this was not a very difficult case, but a pretty typical one. Whilst it may not matter very much to the world at large, or to news agencies, it does matter very much to the family in question, and it does matter very much that we can observe and report the ordinary cases about ordinary people. And it matters very much that our attendance was apparently such a big problem to cause such a negative reaction.
It is also telling that the transcript of the opening few moments of the hearing from which Paul was excluded shows that immediately after his exclusion, the legal adviser’s summary to the parents for what had just happened is quite different from the later formal facts and reasons. That oral summary refers to the ‘very short notice’ and the fact that there were ‘no current projects running for magistrates’ (The rules regarding the attendance of reporters have in fact applied to family magistrates since even before 2009, when they were first applied to judges). Those matters are omitted from the formal written record, even though it seems pretty clear they were materially part of the rationale for exclusion. It is fundamental that the magistrates’ facts and reasons should accurately reflect the actual reasons for a decision. Having verified our reporter’s account of why he says he was excluded, it appears that his account is a match for the transcript of what happened on the day, and it is the facts and reasons drawn up later which are at odds. We don’t know why this has happened in this instance, and we don’t know whether it is a one off, but that it has happened at all must be of some broader concern. Whilst we took a pragmatic decision not to appeal the exclusion decision, even though we considered it to be wrongly made (the ship had sailed and the hearing concluded), others may be in a different position. It is the facts and reasons which form the main basis of decisions about appeals from the magistrates and transcripts are difficult to come by. If they are not accurate, an appeal may be fatally prejudiced.
In a couple of months’ time the magistrates at ELFC will fall under the reporting pilot, and then they will potentially be visited by both legal bloggers and professional journalists, who may scrutinise them and will likely be able to report on what they see without fear or favour. We hope by then some training has been rolled out to both magistrates and legal advisers, and that those reporters get a warmer welcome than Paul did.
The magistrates have nothing to fear from the attendance of reporters, if only they can adopt a basic level of due process and fairness towards both litigants and other professionals who attend their hearings.
We have a small favour to ask!
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Thanks for reading!