Magistrates’ courts conducting family justice are now part of the Family Court, established in 2014, and subject to the same rules as those presided over by district, circuit and High Court judges. Under those rules, accredited media reporters and ‘legal bloggers’ (see below) are entitled to attend hearings even if they take place in private, though they can’t report anything without the court’s permission. However, their scrutiny is not always welcome, as I discovered on earlier this year when I attempted to watch a case about which I’d been alerted.

Media reporters can be accredited by membership of an organisation such as the BBC or the National Union of Journalists. A legal blogger is someone described under the rules as a ‘duly authorised lawyer’ – a qualified lawyer unconnected with the case, engaged in educational commentary. My attempt to watch a private hearing before the magistrates in the Family Court was as a legal blogger. I’m a non-practising barrister, associated with a legal educational charity (the Transparency Project), reporting (if allowed to do so) for the purposes of public legal education.

There is currently a Reporting Pilot covering a number of family courts, under which reporters are given permission to report the case by default, i.e. unless the court rules otherwise. But that doesn’t currently apply to the magistrates’ court which I was interested in seeing. So under the rules (which I’ll come to), I needed to notify the court with a form identifying which case I planned to attend, and provide details of my status as a ‘duly authorised lawyer’. If I wanted to report I’d also have to make a separate application (usually best done at the end of the hearing).

I was able to identify the case I wanted to attend from the cause lists for the court which are published around tea-time the previous day. (Private cases involving children are never listed by name, everything is anonymised, so unless you know the case number you’re unlikely to be able to find where the case is being heard.) I was therefore able to fill in the form legal bloggers are required to complete, when attending a hearing. I sent the completed form to the court office the day before the hearing. Next day I turned up at court and presented my documents in hard copy at the window of the court office and was told to go and wait outside the court, where the legal adviser would be expecting me.

The legal adviser is a qualified lawyer who advises the magistrates (who are not lawyers) about the legal issues arising in the cases that come before them. So, although the adviser does not make the court’s decision, they do have significant influence on how the magistrates understand and apply the law.

In this case, it was clear that the adviser was opposed to my attendance at the hearing, and was unwilling to allow me into the court. But I insisted on making representations to the court itself, as I am entitled to under the rules, because only the court (i.e. the magistrates) can properly decide to refuse to allow a reporter to attend. So I went in before the case began, to resist what was, in effect, an attempt by the legal adviser to persuade the magistrates to exclude me even from watching the hearing, let alone any question of permission to report.

It was just me in the room, at the back of the court, with the three magistrates on the bench in front of me, and the legal adviser sitting on the side. It was a bit like a job interview. Though in the end perhaps more like being sacked.

The legal adviser took us through the rules. Attendance at private hearings is dealt with under rule 27.11 of the Family Procedure Rules 2010, which states:

(2) When this rule applies, no person shall be present during any hearing other than –

(a) an officer of the court;

(b) a party to the proceedings;

(c) a litigation friend for any party, or legal representative instructed to act on that party’s behalf;

(d) an officer of the service or Welsh family proceedings officer;

(e) a witness;

(f) duly accredited representatives of news gathering and reporting organisations;

(ff)  a duly authorised lawyer attending for journalistic, research or public legal educational purposes; and

(g) any other person whom the court permits, or who is required by any practice direction, to be present.

I’ve emphasised r 27.11(2)(ff) which is the precise bit of the rule that I said applied to me. In response to that, the magistrates asked to see my documents, including a Call Certificate declaring that I had been Called to the Bar, a letter of authorisation from the chair of the Transparency Project, and a form FP301 Notice of attendance of duly authorised lawyer.

Having accepted my entitlement to attend under the rules, they then questioned me as to my motive. It had become clear from something the adviser said earlier, that court staff had formed the impression I was affiliated with a particular party in the case.

However, it is not for the court to question why a reporter wants to attend a particular case or who their source might be. Think about it this way. How better, if you are a legal blogger or accredited reporter, to find out about a case if not from someone somehow connected with it? Contrary to the belief of some, telling a reporter that a hearing is due to take place is not prohibited, and nor is there a bar on giving a very brief summary of what the case or hearing is about (though details and documents must generally not be shared). At The Transparency Project we find out about cases in a variety of ways, sometimes through the parties, sometimes through others, and sometimes through following up publicly available information. However, we never reveal our sources.

The cause list (showing which cases are in which court when) are not much help in identifying a case of interest. They provide details of the court, ie who is the judge (if it is a judge, but not the names of magistrates) and what time each case is on. Then, for cases heard in private, there is a number and an anonymised name, usually something like ‘Re a Minor’. This information is published on Courtserve, a public website (free, though you have to register) some time the previous day, usually around mid to late afternoon. But it’s not enough to indicate to a reporter or blogger whether a case might be of interest to watch and report. Unless you’re told about a case, you’re left with the option of just turning up ‘on spec’, with no guarantee of being able to report anything when you get there.

One of the points put to me by the magistrates in my hearing was that I hadn’t given the court enough notice. I explained that I’d emailed the previous day. Did the office acknowledge my email? Yes, I told them. I got an ‘auto response’ which said: 

PLEASE DO NOT REPLY TO THIS MESSAGE

Due to coronavirus (COVID-19), we might take longer to answer your e-mail. We’ll get back to you as soon as possible.

In the light of the current COVID-19 epidemic and the guidance to courts to avoid in-person hearings if at all possible, until further notice all without notice applications in private law cases (including all Family Law Act, Children Act and financial remedy proceedings) will be dealt with on the papers unless there is a need for a hearing. If a hearing is required, this will take place by telephone.

Evidently the office is a bit behind the times. When I got there in the morning, however, they knew about my email and had seen my documents.

It’s logical that the legal adviser or magistrates would assume that I had received information from someone involved in the case. But that was their assumption. And even if it was correct, it wouldn’t mean I was somehow ‘on any party’s side’, and in any event it could not have made any difference to the hearing. When waiting for the case to start I had spoken with each of the parties outside court and had explained to them my independent reporting role. Neither was represented but they each had a friend or lay supporter waiting with them. Each of them was happy for me to be there. Even the initially sceptical social worker was happy for me to be there. It was the court itself that resisted my presence, entirely of its own motion, albeit prompted by the legal adviser.

Another anxiety the court had was over what I might say if I did report the case. They pointed out that they would have no control over what I wrote – which is absolutely right: we live in a free country and a court has no editorial control over what independent reporters write – if it gives permission to report. All it can do is impose reporting restrictions on what information to include, to protect the privacy of the family. I explained all this, and pointed out that, even if I was able to attend, for the purposes of transparency, as intended under the rules, they were under no obligation to give me permission to report anything. None of these assurances appear to have allayed their obvious suspicion of me and my motivation.

To complete the legal background, the legal adviser took us to the next bit of FPR r 27.11:

(3) At any stage of the proceedings the court may direct that persons within paragraph (2)(f) and (ff) shall not attend the proceedings or any part of them, where satisfied that –

(a) this is necessary –

(i) in the interests of any child concerned in, or connected with, the proceedings;

(ii) for the safety or protection of a party, a witness in the proceedings, or a person connected with such a party or witness; or

(iii) for the orderly conduct of the proceedings; or

(b) justice will otherwise be impeded or prejudiced.

(4) The court may exercise the power in paragraph (3) of its own initiative or pursuant to representations made by any of the persons listed in paragraph (5), and in either case having given to any person within paragraph (2)(f) and (ff) who is in attendance an opportunity to make representations.

Evidently the court would be exercising its power of exclusion of its own initiative (since no one else had objected – nor had their views even been sought) and they were giving me, as the person within para (2)(ff), an opportunity to make representations. Having made my representations, I was asked to retire so the court could deliberate. (This saved them the trouble of retiring from the court themselves.)

After a few minutes I was allowed back in and told the result. According to my hurried note of their reasons, they pointed out that

• they had been given very short notice,
• the ‘scheme’ (ie the Reporting Pilot) only covered district judges and circuit judges;
• magistrates had never been asked to admit reporters; and
• it was not appropriate to have a third party in the court as this might affect the way the parties responded to the proceedings.

Accordingly, they would refuse to allow me to attend.

Thankfully, I was able to use my time productively attending another hearing that day, before a circuit judge, so my journey to the court was not entirely wasted. But it was a frustrating experience being refused entry to the magistrates’ court, first because it was so completely unexpected (and therefore I was ill prepared for the need to suddenly make submissions); and secondly, because I felt the reasons they gave for excluding me were flawed, and had more to do with administrative convenience and a suspicion of scrutiny, than anything to do with the interests of the parties.

A transcript of the relevant bit of the ‘hearing’, obtained with some difficulty and delay, has subsequently confirmed this view. You can find an analysis of the transcript and to read the whole document here. You can read our original post about our five month journey to being able to publish this post here.

Comment

Justice must be seen to be done, even in the magistrates’ court. Yet how do we know, if no one is there to see it? The sooner magistrates’s courts are covered by the Reporting Pilot, the better.

Otherwise there is risk that magistrates’ courts, who deal with so much of what might be called front line justice, disappear from scrutiny altogether. Criminal proceedings in the magistrates’ courts are increasingly going private, as it were, particularly for routine low level offences under the largely remote Single Justice Procedure scheme, where public scrutiny has been almost entirely eliminated and even media coverage is restricted by practical obstacles. Even physical criminal magistrates’ courts are rarely watched or covered by the press, and staff are so unused to seeing anyone in the public gallery that they sometimes won’t even let them in. Moreover, criminal magistrates’ courts, unlike family ones, are not recorded so you cannot later order a transcript of what happened there, even for an appeal. (There is currently a campaign to change this.)

Thus we are drifting towards a system where magistrates’ proceedings of all jurisdictions are conducted away from public gaze and, if not recorded, absolved of any possibility of scrutiny.

We have a small favour to ask! 

The Transparency Project is a registered charity in England & Wales run largely by volunteers who also have full-time jobs. We’re working hard to secure extra funding so that we can keep making family justice clearer for all who use the court and work within it.

Our legal bloggers take time out at their own expense to attend courts and to write up hearings.

We’d be really grateful if you were able to help us by making a small one-off (or regular!) donation through our Just Giving page.

Thanks for reading!

Featured image: photo by Michael Nunzio via Pexels.