A new “Reporters’ Charter” outlining the rights and responsibilities of court reporters has been launched to boost transparency in the justice system, according an announcement by HM Courts and Tribunals Service. The charter, part of the General guidance to staff on supporting media access to courts and tribunals, was developed by the Media Lawyers Association and HM Courts and Tribunals Service and unveiled at the Society of Editors Annual Conference on 11 May 2022.
The document brings together practical guidance for journalists attending courts and tribunals so that it will be easier for them to get the access, documents and information they are entitled to, and sets out advice on how journalists can request to observe video hearings or tune in remotely. However, it says nothing about other public observers who should enjoy (for the most part) the same access to public hearings in real or virtual courts.
In this, the development follows a long tradition of the courts management and rule makers basically treating press access as equivalent to open justice.
Another example is the initially temporary provision of CPR PD51Y para 3 that “Where a media representative is able to access proceedings remotely while they are taking place, they will be public proceedings.” This is patently not good enough, and contradicts a well established common law principle for which there is a long line of authority. In a guest post on the ICLR blog, Daniel Cloake (aka @mouseinthecourt) comments on a proposal by the rule committee to make this a more permanent provision of the CPR and why that would be a travesty of open justice.
The Charter’s privileging of the media is based on a misconception about who attends court. While acknowledging that “The public have a right to attend most court and tribunal hearings” it argues that “the reality is the public primarily learn about the work of the courts and tribunals through news reports in newspapers, on television, radio or online.”
The problem is that the public actually learns less and less from news reports because reporters have stopped going to court (unless the case is a sensational or exceptional one) – as has been well documented, for example in the Cairncross Review (which we commented on here.)
Meanwhile the closure of local courts and the obstructiveness of court staff has made it harder for members of the public to attend. Law students have been turned away, people have been told not to take notes, and people asking for access to remote hearings have been ignored or only given the information after the hearing has already happened. All this has been well documented and HMCTS have issued routine excuses about “staff training”, to no avail. It does not help when documents like this Charter simply perpetuate the myth that only journalists need or deserve access.
In this context it is worth repeating the words of an Open letter from NGOs and academics on open justice in the Covid-19 emergency published here on 29 May 2020:
“In courts and cases where access is restricted to the media alone, we can only scrutinise the functioning of the justice system through a very narrow field of view, when a case attracts media interest. The public interest in observing justice goes beyond whether a case is newsworthy: a public observer may bring to light other issues in the justice process that are of lesser interest to the media, or beyond the media’s reporting capacity. It has always been recognised as fundamental to the realisation of the open justice principle that courts must provide access not just for journalists and the media, but also the wider public — this may include academic researchers, not-for-profit organisations and charities, and family members of court users, for example. For private hearings in the family court, the ability of the media and other permitted observers to access hearings is of particular importance.”
Those “other permitted observers” in the family courts now include legal bloggers.
More recently, here on the Transparency Project blog, Court hearing lists and open justice describes the difficulties still being experienced by non-media observers seeking to find out about and view proceedings supposedly conducted in open court. For them, this lovely Charter for the benefit of media reporters is unlikely to be of much benefit, since if anything it will perpetuation the “gatekeeping” effect of privileging media access, thus obscuring the greater transparency which open justice ought to guarantee.
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