Trial and Error

Just to prove I have the  determination and sticking power to write an essay as tear-jerkingly, eye-scratchingly boring as this. Please give me a job.

A study into how and why legal restrictions are imposed upon journalists when reporting in Crown Court cases

1.1: Democracy and civil liberties
A practical definition of democracy is a system in which two fundamental rights are guaranteed, that of the freedom of the individual to express themselves and the right of the individual to a number of civil liberties.

The problem is that these two rights can, and often do, stand at odds with each other. Freedom of expression, if pursued to the nth degree, has the potential to impinge on an individual’s right to privacy or right to a free trial. Conversely, if someone defends their civil liberties too vigorously, the over-arching principle of freedom of expression can be undermined.

This paradoxical relationship is expressed in one of the most influential pieces of legislation in regards to our understanding of democracy, the European Convention on Human Rights (1950). Article 10 of the convention reads:

1.    “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
2.    The exercise of these duties, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interest of national security…the prevention of crime or disorder…and the protection of the reputation or rights of others…”

Therefore, a fine balance between the two principles must always be sought, and this involves a constant and evolving process of compromise and negotiation accompanied by the hope that, in doing so, the dividing line will become increasingly more clearly defined.

This can be illustrated by studying the complex co-existence between the media industry, who have been characterised “as the eyes and ears of the general public who act on behalf of the general public,  ” and the legal system.

1.2: Open Justice and a Fair Trial

The same legislation  also established that every individual is entitled to a fair and open trial, identifying this as a central tenant at the heart of any democratic system.

In Britain, this principle has been around for a while. As Lord Hewart said in R. v Sussex Justices (1924) :

“… it is not merely of some importance but is of fundamental importance, that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

The principle that justice must be seen to be done is one of the most pervasive axioms of the administration of justice in our legal system. It is the origin, in whole or in part, of numerous substantive rules (the most recent and obvious example being the Freedom of Information Act). But how, in a practical sense, is this facilitated in a court or newsroom as part of the day-to-day, habitual workings of a democracy?

The short answer is an uneasy, and occasionally fractious co-operation. The legal system has a responsibility to ensure it stays true to the principle of open justice, but equally the media industry has a responsibility to ensure that it doesn’t take advantage of their privileged position and adversely impact on the workings of the justice system. As Lord Justice Judge said: “Restrctions must be respected but they must only be put in place when there is absolute necessity for doing so in an individual case.”

This report intends to outline the various mandatory and discretionary restrictions which a journalist has to comply in UK law, as well as a brief insight into areas where the law or the media industry may leave something to be desired in a quickly changing sociological landscape.

Mandatory Court Restrictions

2.1 Pre-Trial Hearings

When covering a preparatory hearing in the crown court, restrictions known as the seven points come into play. These statutory restrictions are designed to safeguard the defendant’s right to a fair trial. The seven points  apply unless the Court dismisses the charges or, for whatever reason, decide to lift the restrictions in the interest of open justice.

The seven points include names, addresses and occupations of the defendants and witnesses, the offence, bail conditions and lawyers, previous convictions and the decision of the court regarding committal.

In some more serious or complex cases, preparatory hearings at Magistrates’ can be bypassed in what is known as a plea and directions hearing. This is regarded as a time-saving exercise and allows the accused to give his plea at Crown Court. The same restrictions generally apply.

2.2: Sexual Offences

The key legislation involved with this is the Sexual Offences (Amendment) Act 1976 and the Sexual Offences (Amendment) Act 1992.  The cardinal rule laid down by this legislation is providing the alleged victim with life-long anonymity, unless requested otherwise.

As long as this general principle is strictly adhered to, then problems will be avoided. However, complications can arise when there is more than one complainant.

Restrictions can be lifted if the complainant chooses to waive their rights to anonymity or, with the consent of the defence, the judge feels it is in the public interest (to encourage witnesses of the crime to come forward and testify for example). Care must be taken though, if there is more than one complainant. If one of a number of complainants waive their right to anonymity, the journalist must be careful that, through naming one complainant, others are not exposed by association.

Absolutely any information which could feasibly provide an indication of the identity of the victim is prohibited. As such, the judge may also decide to restrict the identity of the defendant if they have some sort of personal relationship with the complainant such as a familial tie.

Generally speaking, though, a journalist is free to name the defendant in the trial. This is a contentious issue, and there are question marks over the ethics of naming someone who has not been found guilty of a crime that (justifiably) has such powerful social stigmas attached to it. On occasions there have been cases of high profile personalities who have seen their careers thrown into jeopardy, despite them being found not guilty of all charges.

The case of the current Cardiff City football manager Dave Jones is a good example off this. When working for Southampton FC, Jones was accused of a series of sexual offence charges dating back to his time as a social worker in Merseyside. It emerged later the charges were trumped up by people attempting to win compensation erroneously.

As a result of the trial, which attracted massive media publicity, Jones lost his job and attributed the death of his father to the stress of dealing with the trial. As Jones said in a recent newspaper interview:

“Never again will I use the phrase ‘no smoke without fire.’”

3.0: Discretionary Court Restrictions

Apart from trials mentioned above, a court can be considered as ‘open,’ unless the judge takes deliberate steps to prevent it. Although for the vast majority of court proceedings the principle of open justice is strictly adhered to, there are a number of exceptions when a judge can depart from this principle and impose restrictions on a reporter.

3:1: Contempt of Court
Contempt of Court legislation guards against the improper interference with the administration of justice. The Contempt of Court Act 1981 prevents the media from reporting any information that may create a substantial risk of serious prejudice, in order to uphold Article 6:

“Judgement shall be pronounced publicly but the press and public may be excluded from all or part of the trial…or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

Publication of a contempt can be either a criminal or a civil, and can result in a fine or a prison sentence. At common law there are three offences of criminal contempt:
1.    Interfering with ‘pending or imminent’ court proceedings
2.    Contempt in the face of court
3.    Scandalizing the court

Contempt laws can be perceived as the courts’ attempt to avoid what has become known as a ‘trial by media.’ Although there is a debate surrounding how much the courts are affected by exterior reporting, there have been notable incidents of “frankly unacceptable ” reporting that has surrounded high profile trials like that of Ian Huntley and Maxine Carr in November 2003.

The difficulty, however, lies in defining such risk or prejudice. It is a justified question to ask whether a jury are really that influenced by what they read in the morning papers. Is the law suggesting the average member of the public or a jury is so malleable that they will be biased by all they read, see or hear?

3.2 Section 11 orders

This refers to section 11 of the Contempt of Court Act 1981 and, in the most simple of terms, ensures that the name of a defendant is not made available to the public domain:

“In any case where a court (having power to do so) allows a name or other matter to be withheld form the public in proceedings before the court, the court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appears the court to be necessary for the purpose for which it was so withheld.”

Inevitably, this order cannot be passed if the court has already permitted the individuals to be named. This is normally used to allow witnesses to testify without allowing their name to become mixed up in the trial, or if the case involves a blackmail and the victim wishes to give evidence.

An example of a section 11 being used was in the Trinity Mirror Case (2008) , when the presiding judge agreed to protect the identity of a defendant in order to protect his children’s reputation during a trial for indecent images of children. The order was overturned on appeal.

This raises an important question of whether these restrictions are always justifiable, and whether a judge uses the correct criteria in order to make an informed decision. There has been increasing evidence of section 11 orders overturned after a journalist has formally questioned the right to their existence.

3:3 Children and Young Perons Act (1933) Section 39 orders

This order relates to juveniles (under the age of 18) who are concerned with a case, such as a defendant, witness or victim. A judge can grant the anonymity for such juveniles in cases where their welfare may be compromised. However, it is important for a journalist to remember that a section 39 order should not be imposed automatically because a juvenile is involved in proceedings.

There have been a number of recent cases when the order has been overturned, such as the R v Southward Crown Court case.

As Lord Justice Lloyd said in the case of R v Lee (1993): “If the discretion under section 39 is too narrowly confined, we will be in danger of blurring the distinctions between proceedings in juvenile courts and crown courts.

Lord Justice Simon Brown, presiding over the Winchester Crown Court  case, highlighted six principles on how to judge whether a section 39 should be imposed . The most central of these is situations when the order is lifted at the end of a trial and the identities are revealed to the general public. This happened with the case of Jamie Bulger (1993).

3.4: Section 4(2) orders

This is also known as a postponement order. A postponement order is used when a court feels there is a substantial risk of prejudice or the chance of a trial being fair and uninterrupted by external influences. A section 4(2) order has no limited time period and, in the case of a fraudulent solicitor at Bristol Crown Court (2001), was postponed for four years while 21 former employees were tried.

It has been stressed that 4(2) should not be used to protect the welfare of a defendant. As Lord McCullum said in 1997:

“An attack on the accused by ill intentioned persons cannot be regarded as a natural consequence of the publication of the proceedings of the court, and the danger of its occurrence should not cause the court to depart from well established principles.”

Section 4(2) was passed before the days of the internet, digitalisation and the modern 24-hour news industry, and this has left the legal system in a quandary it is struggling to deal with.

The internet has provided the general public with the ability to access and share unprecedented amounts of information, and this can result in a kind of ‘lynch mob’ mentality when information that has not been reported by the media has been leaked into the public domain. This was most recently seen in the case of Baby P, which had a section 4(2) order assigned to it. Despite this, details of the child’s parents were leaked and made available to millions despite the restrictions placed on their identities by the presiding judge.

Eventually the law will have to answer an increasingly more pressing question. Whose interests are greater – the public who may be threatened or the criminal who may be exposed?

In conclusion, the relationship between the media and the legal system is at best an uneasy marriage, as it articulates the tensions between the right of freedom of expression and that of civil liberties expressed in Article 10 of the European Convention of Human Rights.

As an increasingly empowered public cease to rely on the conventional media as their “eyes and ears,” the law will have to soon adapt to make sure it does not begin to be regarded as increasingly archaic and easily avoidable aspect of modern society. If not, there is a risk that the media will cease to worry about remaining squeaky clean when rogue elements of the digital revolution start to take matters into their own hands.

Nevertheless, as long as the age-old principle of open justice continues to be the central tenant on which the relationship is founded, we cannot go far wrong. As Lord Halsbury, in the case of Scott v Scott (1913) said:

“…publicity is the very sole of justice…and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial.”


Welsh, Greenwood and Banks Essential Law for Journalists  (Oxford University Press: 2007)
Bloy, Duncan Media Law (Sage Publications, London: 2007)


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