February 12, 08

NEWS / Dust off the closed files, justice is opening up

The media’s freedom to report legal matters is always in a state of flux, but new access to documents will improve scrutiny

It has been a good week for open justice. A court overturned a gagging order that prevented the media revealing the identity of a man convicted of possessing child pornography. A separate court held that new rules that allow the media and the public access to key court documents also apply to the documents used in judicial review proceedings.

The courts have an uneasy relationship with the media when it comes to the coverage of legal cases. They extol the virtues of the press as the eyes and ears of the public and as a watchdog to stand guard over the judicial process; but they worry that media coverage might prejudice cases and harm those involved. Consequently, the media’s freedom to report legal matters is always in a state of flux.

Restrictions on legal reporting have multiplied in recent years in the area of privacy. A decade ago our courts were usually reluctant to take steps to protect the privacy of individuals. But since the incorporation of the European Convention on Human Rights into domestic law, the courts have been evermore ready to restrain the use of private information.

This has led to some bizarre results. In December 2006, at Croydon Crown Court, an order was granted to prevent the publication of any material that would disclose the identity of the two young daughters of a man convicted of possessing indecent pictures of children. The girls were not connected with the offences. Nonetheless, the effect of the order was to prevent the media from naming the offender, since this would reveals the girls’ identity. Thus the convicted man obtained anonymity – despite having being named in open court.

A group of newspapers, appalled at this erosion to free court reporting, appealed. Last week the Court of Appeal held that the Crown Court had no jurisdiction to make the order, stating that it was “impossible to overemphasise the importance to be attached to the ability to report criminal trial”. The newspapers lost no time in naming the defendant.

Separately, new rules regarding the openness of court documents in legal proceedings were clarified. In October 2006, in a rare act of judicial openness, the court rules were changed to allow any person to obtain copies from the Court Registry of the key documents in a legal case, known as the statements of case. Where these documents contained, for example, private or confidential information, either or both litigants could apply to the court to bar such access – otherwise, the court file was open to all. The new rules appeared to work well in normal private law actions, for example, cases in breach of contract or of negligence, and journalists quickly made use of this freedom to report cases more extensively.

However, an anomaly quickly emerged in how the rules were being interpreted by the court. This related to the documents used in judicial review proceedings, that is, the cases where the Government or some other public body is sued over its decision-making, for example, last year’s successful challenge to the Government’s consultation on nuclear power.

Judicial review proceedings follow a slightly different form to normal private law actions and the documents served have slightly different names. For this reason, the Court Registry, following guidance issued by the Ministry of Justice, claimed that these documents were not “statements of case”, and as such did not come within the new rules and thus there could be no public access to them.

This seemed absurd since the public interest in judicial review proceedings, where important matters of policy are often at stake, typically give rise to a greater public interest than private law proceedings. Moreover, the documents in question, where the public body being sued sets out its case, were clearly performing the same function as the defence in normal proceedings, which did come within the new rules.

Three newspapers, including The Times, applied to a judge for clarification. Last week Mr Justice Collins, the Head of the Administrative Court, where judicial review challenges are heard, held that the position of the Court Registry and the ministry was nonsense and that the new rules should be construed as applying to these judicial review documents, with immediate effect.

This is good news for journalists and the public. Now the court documents submitted by public bodies in judicial review litigation can be scrutinised to ensure that what is said in the litigation is consistent with what being be said elsewhere.

So, two useful steps forward for court reporters. But given the meandering development of the law in this area, few expect this to herald a broad new era of judicial openness.

The author is a media partner and the head of public law at Olswang. He advised the newspapers in respect of their application before Mr Justice Collins

Source: http://business.timesonline.co.uk/tol/business/law/article3349333.ece

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