AG v Butterworth [I9631 1 QB 696; Moore v Clerk of Assize, Bristol [I9711 I ..... (one order dated 17 October 1988 relating to a murder trial lasting four days, and.
The Reporting of Crown Court Proceedings and the Contempt of Court Act 1981 Clive Walker,” Ian Cram” and Debra Brogarth” Introduction Ever since the enactment of the Contempt of Court Act 198 1, concern has been expressed’ about the use of orders under sections 4 and 11 restricting the media’s ability to report court proceedings in accordance with the principle of open justice.* However, the absence of any empirical survey of these orders has hampered a proper evaluation of their worth. This article seeks to elucidate the operation of reporting restrictions at Crown Court level by presenting and analysing the results of a survey of nine Crown Courts during the period 1982-89. The findings are prefaced by an exposition of the legal framework.
A The Legal Setting (i) Contempt of Court Act 1981, section 4 At first glance, the 1981 Act appears to take the public interest in the reporting of court proceedings seriously. Thus, by section 4( 1): a person is not guilty of contempt of court under the strict liability rule in respect of a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith.
Section 4(3) defines ‘contemporaneously’as a report made ‘as soon as is pract i ~ a b l e . ’The ~ leading authority on the meaning of a ‘fair and accurate report’ is R v Evening News, ex pane H o b b ~The . ~ newspaper had published a substantially accurate account of the Recorder’s somewhat prejudicial words when reading the charge to the jury. Consequently, the responsibility for any prejudice against the defendant lay with the Recorder, not the newspaper. By virtue of the definition of ‘legal proceedings’ in section 19 of the Act, the protection of section 4( 1) extends to tribunal hearings and ‘anybody exercising the judicial power of the state.’ The proceedings must be ‘held in public’ which means that section 4(1) has no application to proceedings held in camera or in chamber^.^ As to ‘good faith,’ the requirement will be satisfied where the report is made honestly and with no ulterior motive.6 This condition of good faith may undermine the *Centre for Criminal Justice Studies, University of Leeds. This study was financed by the Leverhulme Trust. The authors thank Rodney Brazier, Professor C.J. Miller and the officials at the targeted courts and at the Lord Chancellor’s Department who facilitated the fieldwork. 1
2 3 4 5 6
See NCCL and Guild of British Newspaper Editors, OfJiciully Secret (1988); Association of British Editors, How Open is Open Justice? (1988). Both relied on evidence provided by journalists rather than court records. See Scort v Scofr [ 1913) AC 417. There is no right to report under Article 6 of the European Convention: Arkinson, Crook and 77ze Independent v UK. Appl No 13366187. This follows R v Border TV. ex parte Attorney-General (1978) 68 Cr App R 375. [I9251 2 KB 158. See instead the Administration of Justice Act 1960. s 12(3), infru. Compare Central Estates (Belgruvia) Ltd v Woolgur [ 19721 I QB 48, at p 55 per Lord Denning MR.
The Modern Law Review 5 5 5 September 1992 0026-7961
647
The Modern LAW Review
[Vol. 55
purpose behind section 4( l), which was to remove the threat of contempt, especially where related cases were pending, unless a court expressly applied it.’ Finally, even if a report does contain inaccuracies, no action for contempt will lie unless those inaccuracies prejudice the prospects of a fair trial or the administration of justice in general. In R v Evening Standard Co Ltd, ex purte Attomey-General,8 a newspaper wrongly attributed statements made by one witness in committal proceedings to another witness at the full trial. As the evidence of the witness at committal proceedings had already been ruled inadmissible at the trial on the ground of being unduly prejudicial, the newspapers’ publishers were fined f 1,OOO. Similarly, a faulty trial report was held to be sufficiently prejudicial in Attorney-General v BBC9 because of the risk of the jury being discharged or an appeal arising from a refusal to discharge. The freedom enjoyed under section 4( 1) to publish reports of open court proceedings is subject to section 4(2): In any such proceedings the court may, where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, or in any other proceedings pending or imminent, order that the publication of any report of those proceedings, or any part of the proceedings, be postponed for such period as the court thinks necessary for that purpose.I0
A publication may more readily fall foul of section 4(2) than the strict liability test under section 2(2) in that only ‘prejudice’ rather than ‘serious prejudice’ need result. Whether a ‘substantial risk of prejudice’ exists may depend on the view taken by the judge or jurors’ susceptibilities.Where jurors are credited with short memories or an ability to disregard matters not submitted in evidence in court,Il the substantial risk test will obviously be difficult to satisfy. A less robust view of the suggestibility of jurors was apparent in R v Ponting,I*where McCowan J imposed an order banning re-enactments by Channel 4 of any part of proceedings until the jury had returned its verdict or until further notice. By contrast, in R v Crown Court at Staford, ex parte Central Television plc,” the Court of Appeal found that there was nothing in the television reports of a criminal trial in which the jury had retired to consider its verdict to give rise to a fear that a substantial risk of prejudice would be created by further reports. Accordingly, the Court overturned the order. As well as becoming more sanguine about the effects of comment on jurors, the judges have recently shown greater trust in the ability of journalists to adhere to section 4(1), and this has in turn affected the usage of section 4(2). For example, in R v HM Coroner for East Kent, ex parte Spooner and 0thers,l4 relatives of persons killed in the Herald of Free Enterprise sinking off Zeebrugge obtained a ruling that the owners could be liable for corporate manslaughter. Reports of those proceedings were postponed until the Coroner’s Court had delivered its verdict. ~
7 8 9 10
I1
12 13 14
648
See (Phillimore) Report on Contempt of Court (1974) Cmnd 5794, para 141; Miller, Contempt of Court (2nd ed, 1989) pp 326, 330. (19541 1 QB 578. The Independent, 3 January 1992. See Beloff, ‘Fair Trial - Free Press? Reporting Restrictions in Law and Practice’ (1992) PL 92. For the origins of s 4(2), see Report of the Lkpurfmental Committee on Proceedings before Examining Justices (1958) Cmnd 479, para 59; Phillimore Report, op cit n 7, para 141. See R v Horshum Justices, ex purte Furquhurson [I9821 QB 762, at p 794 per Lord Denning MR; R v Kruy (1969) 53 Cr App R 412, at p 414 per Lawton J . 7he Times, 29 January 1985. Compare In re Chunnel 4 7” Co Ltd [I9881 CLR 237. (19911 1 WLR 4. h e Times. 10 October 1987.
September 19921
R e Reporting of Crown Court Proceedings
By contrast, in Barlow Clowes Gilt Managers v Barlow Clowes and Others,I5the Court of Appeal refused to allow a section 4(2) order obtained by the Serious Fraud Office to be extended to related liquidation proceedings. The Court emphasised that any press coverage would have to be fair and would need to emphasise that any criminal charges were as yet unproven. Similarly, in Re Saunders,I6the defendant applied for a section 4(2) order to restrain reporting of his first trial until the conclusion of his second trial. The request was refused: the reports would have to be fair and accurate and there was considerable public interest in the case. Guidance on the promulgation of section 4(2) orders was issued shortly after the passage of the Contempt of Court Act by the Lord Chancellor’s Department in Court Business item B948. The circular offers two specific illustrations of when reports could be prejudicial: where there are guilty pleas to part of an indictment but there is to be a trial on the remaining counts; or where there is a ‘trial within a trial’ in order to determine the admissibility of a confession statement. Item B948 was replaced in 1986 by item B1460,18 which explains more fully the application of section 4(2). Three instances of the latter are given.I9 The first two repeat those in B948, although the reference to a ‘trial within a trial’ now encompasses other matters dealt with in the absence of the jury. The third category refers to instances where publication would be prejudicial to other related proceedings which are pending or imminent. A fourth leg might now be added, namely the hearing of applications for orders under section 4(2).20 Even if a substantial risk of prejudice does exist, an order postponing publication may only be made if necessary to avoid that risk. In the Central Television case, the order wasimposed to allow the jury to relax in the evening by listening to the radio or watching television. The Court of Appeal thought that other means of shielding the jury should have been employed (for example, depriving jurors of access to television and radio). A similar rehearsal of alternative means of safeguarding the jury in Ponting was woefully absent. A controversial feature of section 4(2) concerns the fact that the power to order postponement exists not only where the risk of prejudice is to ongoing proceedings but also to where proceedings are ‘pending or imminent.’ Though not defined in the Act, these terms have long been current in common law,21and contrast with the narrower notion of ‘active’ proceedings for the purposes of the strict liability rule under the 1981 Act. The effect is that the purpose of section 4(2) is ‘wider and different,’22though it has been confirmed in R v Rhuddlan Justices, ex parte H. T. V. Lid23 that section 4(2) may not be used to restrict reports of events taking place outside the courtroom (such as the arrest of the accused). Equally, since the proceedings protected by section 4(2) must be actual, pending or imminent, orders
The Times, 2 February 1990. The Times, 8 February 1990. The Court of Appeal’s decision was based on the want of jurisdiction under the Criminal Justice Act 1987, but it did support the lower court’s decision in substance. 17 Lord Chancellor’s Department, No 8/81. 18 Lord Chancellor’s Department, No 5/86. 19 These points were reiterated by the Senior Presiding Judge in 1986 (136 NU 540). Compare HC Deb vol IOOO. cols 37-38, 2 March 1981. 20 See Re Crook (1989) 93 Cr App R 17. 21 On the meaning of ‘pending,’ see R v Clarke, ex parte Crippen (1910) 103 LT 636; ex parte Farquharson, op cir n I I , at p 807. On ‘imminent,’see R v Beaverbrook and Associated Newspapers [ 19621 NI 615; R v Savundranayagan and Walker [ 19681 3 All ER 439. 22 Ex parre Farquharson, op cir n 11, at p 289 per Ackner U. 23 The Times, 21 December 1985.
15 16
649
The Modern Law Review
[Vol. 55
may not be issued when there is merely a general fear in the future of trial by media.24 Once made, a postponement order continues in force for such time as the court thinks necessary to avoid a substantial risk of prejudice. It might be argued that orders should not be permanent (so as to avoid transgressing into territory covered by section l l ) , but they may be indefinite.25 The leading guidance on the availability and effect of section 4(2) orders is the Court of Appeal decision in R v Horsham Justices, ex parte Farquharson.26The Horsham Justices ordered the postponement of publication of reports of committal proceedings until the commencement of any trial. The applicant, a journalist, sought judicial review of the order claiming, inter a h ,that the Justices lacked the jurisdiction to grant a section 4(2) order at committal stage since section 8 of the Magistrates’ Court Act 19802’ provided a complete code for the reporting of committals. This argument was rejected on the grounds that section 8 of the 1980 Act and section 4(2) of the 1981 Act performed different functions. The former existed solely to protect defendants at the beginning of proceedings from publicity which might prejudice the prospect of a fair hearing in the event of a full trial. The purpose behind section 4(2) was ‘to prevent injustice to individuals whose interests might be unduly and unjustifiably threatened or prejudiced by the premature publication of matters which could adversely affect their rights or status.’28 The Horsham case also dealt with the question of what conduct amounted to contempt of a section 4(2) order. In the absence of an express statement in the section that breach of an order is per se a contempt, counsel for the applicants argued that a contravention of a section 4(2) order could not be unlawful unless two conditions were satisfied. The first was that the publication complained of breached the strict liability rule under section 1 by creating a substantial risk of prejudice. The second was that the publication also constituted a contempt at common law. Rejecting this submission, the majority (Shaw and Ackner LJJ, Denning MR dissenting) held that section 4(2) created a new class of liability for contempt. This conclusion was supported by the fact that the subsection referred to ‘other proceedings pending or imminent,’ a wider notion that ‘active’ proceedings to which the strict liability rule applied. Moreover, section 2(2) imposed a different and more stringent test for liability (creating a substantial risk of serious prejudice) than that in section 4(2) (substantial risk of prejudice). Finally, to have allowed the applicant’s argument to succeed would have revived ‘all the old uncertainties recognised to exist at common 1aw.129 The Court of Appeal in Horsham also clarified some issues relating to the correct form of section 4(2) orders. A section 4(2) order must expressly state those matters which may not be published and, once made, an order binds not only those present in court but also persons outside, provided they have knowledge of the order.MIn this way, section 4(2) does not create a form of strict liability but requires proof of knowledge of the order and intention to impede the administration of justice. 24 25 26 27 28 29 30
650
But an injunction may be obtainable at common law: Re Channel 4 TV Co Lrd [ 19881 CLR 237; 77te Times, 2 February 1988. See HC Deb Standing Comm A. col 161, 12 May 1981; Miller, op cir n 7, at p 335. op cir n 1 1 . See infra. op cir n 1 1 , at p 797. ibid n 1 1 , at p 806 per Ackner U. ibid n 1 1 , at p 793 per Lord Denning. The point was confirmed by the Court of Appeal in AG v Newspaper Publishing plc and Others [I9871 3 All ER 276.
September 19921
The Reporting of Crown Court Proceedings
This consequence seems to flow from the view taken in the Horsham case as to the distinct nature of section 4(2) and also accords with legislative intention^.^' Of course, breach of an order whilst litigation is active may alternatively result in strict liability under section 2(2) of the 1981 Act.3Z
(ii) Contempt of Court Act 1981, section 11 Section 11 of the 1981 Act provides: In any case where a court (having the power to do so) allows a name or other matter to be withheld from 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 appear to be necessary for the purpose for which it was withheld.33
Unlike section 4(2), section 11 does not confer any new powers but merely affirms existing common law and statutory powers. At common law, prohibition orders have been approved in cases involving blackmail,” national and other situations where fear of vi~timisation~~ or lurid publicity3’ might discourage witnesses. The power in section 11 also differs from section 4(2) in that it envisages a permanent prohibition on publication rather than mere postponement. Next, the exercise of this power depends on the material not having been disclosed in open court prior to the order.38 Finally, section 11 is apt to censor only specific information rather than a complete report as under section 4(2). A key issue left unresolved by section 11 concerns the purposes to which it may be put. From R v Evesham Justices, exparte M c D o n ~ g hit, ~is~clear that section 11 orders may not be imposed for the benefit, comfort and feelings of defendants but are ‘limited in application to those situations where the general rule requiring open justice would frustrate or render impracticable the administration of justice.’@ It was made clear in R v Felixstowe Justices, ex parte Leigh4’ that section 11 may not be used by magistrates to confer anonymity on themselves. However, while the concern for personal embarrassment has been limited, a litigant’s financial reputation may be viewed as more germane. In R v Dover Justices, exparte Dover DC,42the Divisional Court would not countenance an order protecting the reputation of a restaurant facing health regulation charges. However, in Polly Peck v the Court of Appeal accorded special concessions to banks and building societies, wherein loss of confidence can cause irreparable harm. The recognition of this privileged group of litigants is based on dubious distinctions favouring the 31
HC Deb Standing Comm A, col 167, 12 May 1981; HL Deb vol 417, col 146, 10 February 1981. See also Miller, op cit n 7 , at pp 337, 338. 32 See AG v Guardian Newspapers Ltd, The Times 28 February 1992. 33 See Green Paper, Contempt of Court (1978) Cmnd 7145, para 27. 34 R v Socialist Worker Printer & Publisher Ltd, ex parte AG [ 19751 QB 637. 35 AG v Leveller Magazine Lrd [ 19791 AC 440. 36 AG v Butterworth [I9631 1 QB 696; Moore v Clerk of Assize, Bristol [I9711 I WLR 1669. 37 R v Hove JJ, ex parre Gibbons, The Times, 19 June 1981. 38 See R v Arundel JJ, exparte Westminster Press Ltd [ 19851 1 WLR 708. But an order remains permissible if the original disclosure followed a wrongful exercise of discretion under s 1 1 : R v Tower Bridge JJ, ex parte Osborne, The Times, 4 December 1987. 39 [1988] 2 WLR 227. See Cram, ‘Publication of Address’ (1988) JCL 3. 40 ibid at p 234. Compare R v Chancellor of Chichester Consistory Court, ex parte News Group Newspapers, The Times, 15 July 1991. 41 [I9871 QB 582. 42 The Times, 21 October 1991. 43 7?ze Times, I 1 November 1991. The case involved a hearing in chambers rather than a s 1 1 order.
65 1
The Modern Law Review
[Vol. 55
high and mighty. After all, many businesses (restaurants included) are largely dependent on public confidence, and their demise will have repercussions on suppliers, creditors and customers. More positively, section 11 orders were approved in R v Reigate Justices, ex parte Argus Newspapers” as a means of protecting the identity of a police informer who had later offended. Rather like section 4(2),section 1 1 is silent about the circumstances in which a breach of the order will constitute a contempt. It is probable that disclosureper se does not amount to contempt and that interference with the administration of justice must be proven.45As for the mental state of the contemnor, the balance of authority suggests that the defendant must know of the existence of an order and must intend to impede justice.&
(iii) Form of Orders Restricting Publication Guidance on the form of orders under sections 4(2)and 1 1 of the 1981 Act is specified in a 1982 Practice Direction4’: It is necessary to keep a permanent record of orders [under sections 4(2) and 111 for later reference. For this purpose all orders under section 4(2) must be formulated in precise terms . . . and orders under both sections must be committed to writing . . . An order must state (a) its precise scope, (b) the time at which it shall cease to have effect, if appropriate, and (c) the specific purpose of making an order. Courts will normally give notice to the press in some form that an order has been made under either section of the Act, and court staff should be prepared to answer any inquiry about a specific case, but it is, and will remain, the responsibility of those reporting cases, and their editors, to ensure that no breach of any order occurs and the onus rests with them to make inquiry in any case of doubt.
It seems from a full reading of the Practice Direction that records should be made of the invocation of both section 4(2)and section 1 1. However, this procedure is not always followed and some courts seem to assume, perhaps encouraged by the second sentence of the first paragraph, that only section 4(2)orders are covered. Several circulars amplifying the Practice Direction have been issued by the Lord Chancellor’s Department. The first, Court Business item B948,48advises that, when an order is made under section 4(2),a record must be made in the court log or some other convenient document. Procedures as to the method by which court staff should inform the press that a relevant order has been made are considered in Court Business item B1075, issued on 10 September 1982.49Several possible approaches are suggested, such as the posting of a notice on the courtroom door or the press bench, or the insertion of a reference in the Daily List. At the same time, item B1075 seeks to ensure that jurors do not become aware of orders made in their absencem and that any notice to the press does not reveal prejudicial information. 44 [ 19831 CLR 564. See also R v ChiefRegistrar ofNew Cross Building Society [1984] 2 All ER 27. When hearing an application for a s 1 I order, the Divisional Court has held that the court in question 45 46 47 48 49 50
652
should go into closed session (R v Tower Eridge JJ. ex pane Osborne I19861 CLR 382). See Miller, op cit n 7, at p 318. See R v Socialist Worker, loc cir; AG v Leveller, loc cir. Thus, blameless disclosure may arise through ‘jigsaw identification’; see Repon ofthe Comminee on Privacy and Related Matters (1990) Cmnd I 102 (the ‘Calcutt Report’) para 10.19. [ 19821 I WLR 1475. The Direction was prompted by the Horsham case, op cit n 1 I . op cit n 17. Lord Chancellor’s Department, No 12/82. Prejudice to the jury nevertheless resulted in R v Hutton [I9901 CLR 875.
September 19921
f i e Reporting of Crown Court Proceedings
Guidelines issued in 1986 as item B14605’ remind courts of the requirement to commit an order under section 4(2) to writing in accordance with the Practice Direction. Unfortunately, there is no express mention of section 11 which may have deepened the misapprehension of some courts. A further problem is that there is no description in the item of what form the written record should take. The final issue dealt with is the requirement to give notice to the press. Item B1460 broadly follows the direction in item B1075 by stating: Notice to the press should normally be given by the Clerk of the Court to representatives of the press who may be present and by a notice prominently displayed in the court building where it will come to the attention of the press, eg in the press box or other convenient place. Such a notice should state that an order has been made in the case in question and that details of the order may be obtained from the Chief Clerk.
(iv) Challenges to Orders At Magistrates’ Court level, judicial review remains the media’s sole remedy for contesting reporting restriction^,^^ but it is a remedy which is subject to a number of limitations. In particular, the High Court does not examine the merits of the decision, and those seeking review must establish a ‘sufficient interest.’ In the Horsham case, a journalist, the proprietors of his newspaper and his trade union were all qualified to bring the application. Later, in R v Felixstowe Justices, ex parfe Leigh, the court held that the journalist possessed sufficient interest to obtain a declaration but not mandamus. By contrast, judicial review of Crown Court orders is barred by the Supreme Court Act 1981, s 29(3),53 as was confirmed in R v Central Criminal Court, ex parte Crook.” An attempt by Channel 4 to mount a challenge in the Crown Court itself failed in the Ponting case.5s However, the Court of Appeal has more recently endorsed media challenges at Crown Court level, especially if the matter can be handled at a preliminary, pre-trial hearing.56 The rulings in both these cases were considered by the European Commission of Human Rights. In Crook and NUJ v United Kingdom,57the Government indicated a willingness to set up an appeal mechanism and, consequently, the application was withdrawn. Complaints arising from the postponement order in P ~ n t i n g ~ ~ were heard by the Commission and were upheld as admissible under Article 13 because of the lack of any domestic remedy. The ruling of the Commission in March 1987 was followed by reform in the Criminal Justice Act 1988, s 159(l), which allows an appeal to the Court of Appeal against section 4(2) or section 11 orders imposed by Crown Courts.59An appeal may be lodged by any ‘person aggrieved.’ According to the Solicitor General, the ~
51 52
53 54
55 56 57 58 59
~~
op cir n 18. This replaces item B948. Appeal from magistrates to the Divisional Court was proposed in HC Deb Standing Comm A, col 169, 14 May 1981. The prosecutor and defendant may appeal under the Supreme Court Act 1981, s 16. The demand for a wider appeal was rejected in HC Deb Standing Comm A, col 174, 14 May 1981. The Times, 7 November 1984. But compare R v Luicesrer Crown Courr, ex parte S , The Times, 19 December 1990 (and comments by Beloff, op cir n 10, p 98). lor cir. But success was achieved in other cases; see R v Gilligan 119871 CLR 501;Robertson and Nicol, Media Law (2nd ed, 1990) p 263. Er parre Daily Telegraph Lrd. 26 September 1991; AG v Guardian Newspapers Lrd, lor cir. Application No 11552/85. Application Nos 1 1553/85 and I1658/85 (sub norm WoolfProducrionsLrd, NUJand Channel 4 v U K ) . See Brogarth and Walker, ‘Court Reporting and Open Justice’ (1988) 138 N U 909.
653
The Modern LAW Review
[Vol. 55
phrase includes ‘the press,’6oand broadcasters and journalists had sufficient standing in the Central Television case6’and Re Crook.62Leave from a single judge in the Court of Appeal is required to challenge an order but, if unsuccessful, the application may be renewed before a full bench. So as to minimise disruption to the Crown Court proceedings, no appeal from a decision of the Court of Appeal (either in respect of leave or the outcome of the substantive hearing) is allowed. Section 159 has been supplemented by the Crown Court Rules 16A, 16B and 24A issued in 1989.63The Rules may be considered unsatisfactory in several respects. There is no requirement to give public notice of an application to restrict reporting, except (under r 24A(1)) for an application that proceedings be held in chambers for reasons of national security or to protect someone’s identity. Even in those circumstances, only 24 hours (rather than 14 days in ordinary cases) is allowed for any appeal. Further, there is no automatic right to a stay of the main proceedings while a section 159 appeal is heard (and there is no promise that appeals will be expedited). An exception again relates to applications to hear in camera for the reasons specified earlier; the trial proceedings shall be adjourned until the determination of the appeal so long as the application is made after arraignment and before the jury is sworn (r 24A(3)). The application for leave to appeal will be considered by the Court of Appeal without a hearing and, if leave is granted, challenges to hearings in camera will themselves be decided without a hearing in most cases and in all circumstances falling under r 24A. The limitations of these Crown Court Rules were exposed in Re Crook.64Orders to hold hearings in camera did not give rise to a right to advance notice or to an adjournment pending appeal because they related to matters ancillary to trial and were not for purposes specified by r 24A.
(v) Other Statutory Restrictions Aside from the Contempt of Court Act 1981, there are many derogations from the principle of open justice in criminal proceedings. The 1isP includes the reporting of committal proceedings, which is normally confined to the bare details specified by section 8 of the Magistrates’ Courts Act 1980 (as amended).& The Criminal Justice Act 1987, s 11, likewise restrains the reporting of certain preliminary hearings in serious fraud cases.67Restrictions concerning materials of an indecent nature and matrimonial matters are contained in section 1 of the Judicial Proceedings (Regulation of Reports) Act 1926 (as amended).68The Sexual Offences (Amendment) Act 1976, s 4, provides for the anonymity of rape complainants,69as amended by the Criminal Justice Act 1988, s 158,70and the Sexual Offences HC Deb vol 135, col 608. See further Cook v Sourhend Borough Council [I9901 2 WLR 61. op cir n 13. op cir n 20. SI Nos 1102, 1103. op cit n 20. The Court of Appeal itself made a s 4(2) order covering reporting until the trials in the Crown Courts had been concluded. 65 For full explanations, see Miller, op cir n 7, at pp 320-342; Robertson and Nicol, op cir n 55, at pp 233-258; Calcutt Report, op cit n 46, Appendix F. 66 See Report of rhe Departmental Commiftee on Proceedings before Examining Justices (1958) Cmnd 479; Criminal Justice (Amendment) Act 1981, s l(2). 67 See Roskill Report on Fraud Trials (1986); Re Saunders, op cir n 16. 68 See Domestic and Appellate Proceedings (Restriction of Publicity) Act 1968; Matrimonial Causes Act 1973, ss 27,31; Family Law Act 1986, s 56, as amended by the Family Law Reform Act 1987. 69 See Report of the Advisory Group on the Law of Rape (1975) Cmnd 6352. 70 See Brogarth and Walker, op cir n 59.
60 61 62 63 64
654
September 19921
m e Reporting of Crown Court Proceedings
(Amendment) Act 1992. Finally, reports of, and attendance at, criminal proceedings affecting juveniles are regulated by sections 39( 1) and 49( 1) of the Children and Young Persons Act 1933 (as amended).”
(vi) Hearings in Private Hearings in private constitute the most extreme departure from the general principle of open justice. As part of its inherent power to regulate its own proceedings, a court may exclude the public and media in the following situations7*:the exceptions recognised in Scott v Scott (relating to wards of court, ‘lunatics’ and secret processes and inventions)73; interlocutory and administrative matters; matters validly delegated to a single judge in chambers; and where statute expressly so The courts may exercise their powers to impose a total or partial exclusion of the public. For example, participants in the trial process may be hidden from the gaze of the public (or in some cases, even the sight of the defendant),75and such screening is expressly permitted in child abuse cases by section 32 of the Criminal Justice Act 1988.76 Section 12 of the Administration of Justice Act 1960 defines the circumstances in which a report of private proceedings will be a prima facie contempt. Outside of these, the reporting of private proceedings is not per se a contempt. However, if a report could cause a substantial risk of serious prejudice in particular proceedings or a real risk to the administration of justice generally, then the immunity is lost under the strict liability rule or under common law. Restraint under section 12 may be wider than a ban under section 4(2) of the 1981 Act, as it may also extend to speculation or comment about, as well as to the reporting of, proceeding^,^^ but it is permissible to report the existence of embargoed proceeding^.^^
B Crown Court Practices (i) Record-keeping It was originally intended to examine in all Crown Courts Contempt of Court orders kept as a permanent record, pursuant to the Practice Direction of 1982.79However, the Lord Chancellor’s Department eventually ascertained that only nine centres (counting the combined records of Swansea and Carmarthen as two) kept discrete records of Remaining Crown Courts offered two explanations. Some claimed that no relevant orders had been made or at most just a handful. The probable CYPA 1963, ss 57, 64; CYPA 1969, s 10. See R v Leicester Crown Court, ex parte S, op cir n 54; R v Southwark Crown Court, ex parte Goodwin [I9911 3 WLR 689. 72 Law Commission, Report of the Powers of Appeal Courts to Sir in Private and the Restricrions upon Publicity in Domestic Proceedings (1966) Cmnd 3149. 73 op cir n 2, at p 437. S e e also AG v Leveller, op cir n 35. The common law powers apply to magistrates: R v Malvern Justices, ex parte Evans [I9881 I All ER 371. 74 See Official Secrets Act 1920, s 8(4); Magistrates’ Courts Act 1980, ss 4(2), 69(4)(5). 75 See Marcus, ‘Secret Witnesses’ (1990) PL 207; Doherty v MOD (1991) 4 BNIL n 11; R v Porter, ‘/he Times, 26 September 1991, p 3. 76 See Advisory Group on Video Evidence (1989); Home Office Circular 61/1990. 77 See Miller, op cir n 7, at p 347. 78 P v Liverpool Daily Post and Echo Newspapers plc [ 19911 2 WLR 501. 79 For future clarity, this will be referred to as ‘Permanent Record (Practice Direction).’ which will distinguish it from the courts’ other ‘Permanent Records.’ 80 The nine courts are reasonably representative in the sense that they are drawn from four out of six court circuits and all three tiers of business. 71
655
The Modern Law Review
[Vol. 55
reason for this dearth of orders is reliance on the requirements of good faith in section 4( 1) of the 198 1 Act. Some courts stated that their practice was for orders to remain on individual case files (and perhaps on the Daily Lists in accordance with item B1075) but not to be collated. Obviously, it would not have been practicable to compile statistics from the many thousands of case files or lists in such courts. It may be commented that this regrettable practice is contrary to the spirit and aim of the Practice Direction which, inter uliu, envisaged a specific register of orders for later reference. In the light of these record-keeping practices, our research involved an examination of all of the following categories of document.
(a) Permanent Records (Practice Direction) These are the ‘permanent record of such orders’ which the 1982 Practice Direction envisages. At each Crown Court the practice varies. The Permanent Record (Practice Direction) of such orders might take the form of a brief note in a book, including the date and time, indictment number and defendant(s)’ name(s). Another method is to maintain a file where all the individual orders as originally issued by the trial judge are collated. These orders generally provide basic details, such as the time and date of the order, the trial in question (indictment number) and the extent of the order, but may occasionally mention the specific purpose of making the order. Some courts have adopted a standard format on which to include this information. Another method of providing this information is the collection of transcripts of the judges’ comments when restrictions are imposed. In addition, the transcript will invariably contain the date, indictment number, judge’s name and the defendant’s name. In the majority of cases, the Permanent Record (Practice Direction) did indicate the scope and the purpose of making the order. However, this was in brief, formal terms, which meant that there was no real explanation as to why the power had been invoked in any given case. Therefore, further details had to be tracked down, via the indictment number, from the courts’ own Permanent Records and individual case files.
(b) Permanent Records These are annual files which are compiled according to the indictment numbers of cases dealt with by a Crown Court. The files contain copies of the indictment relating to each defendant and the record sheet, which briefly recounts particulars of the case, such as offences, pleas, verdicts, sentences and trial dates. At the Central Criminal Court only, the indictment often (but not invariably) had attached a copy of the section 4(2) or section 11 order.
(c) Case Files Not all cases files contained copies of contempt orders (although the original indictment and record sheet were included). Probably the most useful additional information obtained from case files was the court log. If available, the log is essentially a brief diary of the trial. By using the information in these notes, it was sometimes possible to supplement the details in the contempt order, so as to deduce the circumstances which prompted the judge to impose a reporting restriction. 656
September 1992)
The Reporting of Crown Court Proceedings
(d) Daily Lists According to the Court Business item B1075, the published Daily List should contain a reference to any reporting restrictions in force, so as to give due notice to the press. The Daily List provides a daily record of the cases being dealt with in each courtroom and is displayed in the precincts of the court building.
(ii) Record-keeping at the Surveyed Courts Though the record-keeping at the nine courts surveyed represented the best practice in the country, it was far from perfect. Three main problems were encountered. The first was lack of consistency in the documentation. At Peterborough and Gloucester, their Permanent Record (Practice Direction) did not comprise a file of orders but simply a note in a book that an order had been made. By contrast, the other seven Crown Courts, the Central Criminal Court, Knightsbridge, Swansea/ Carmarthen, Winchester, Birmingham and Lewes, all kept copies of Contempt of Court Act orders in a separate file. In this respect, one had easy access to the orders, but there was no guarantee that the compilation was comprehensive. That kept at the Central Criminal Court was found to be especially fallible, and so it had to be laboriously supplemented by a trawl through the Daily Lists and by cross-referencing with a pile of copy orders kept from 1984 until 1988 by the Court shorthand writers. The second problem was that the records in the nine courts surveyed were incomplete over the period covered. In all nine courts, documentation commenced only following the Practice Direction, so there were no records of orders having been issued in 1981. Only in Birmingham Crown Court were the records in the separate file complete from 1982 to 1989. In all others, there were significant annual gaps and, whether these could be explained in terms of no orders having been made or, more likely, represented a failure by the court staff to make copies, was not clear. The third problem was the inadequate detail of the Contempt of Court Act orders. There was no common procedure adopted, though the components included in the orders were similar. Date of order, case number, defendant(s) and brief terms of the order were universal. The system used by Birmingham Crown Court proved perhaps the most comprehensive. The relevant case details included the case number and defendant(s), the date, time and duration of the order, and the terms of the order. Yet the judge’s name was not given, and the details were not typed on the form. In addition, the standard form assumed that all reporting restrictions fell under section 4(2). All nine courts dated the Contempt of Court Act order, and some even included the time (Peterborough, Birmingham and Winchester). The practice at Knightsbridge appears to be to record the times and dates when the order was displayed and removed from the press noticeboard. At the Central Criminal Court, the order only gave a promulgation date; only rarely could one find reference to revocation. A standard form was used by five courts (Birmingham, Winchester, Gloucester, Knightsbridge, Swansea), although this differed at each court. Lewes and the Central Criminal Court relied on a transcript of the judge’s remarks. At Peterborough, no copies of orders were available. Finally, as for notification to the press of details of contempt orders, inquiries of all Chief Clerks indicated that the press received notice of some kind when a reporting restriction had been imposed in a trial. In summary, the system of record-keeping at the nine survey courts did fairly effectively serve the purpose of warning that an order had been made.8’However, 8I
It should not be assumed that effective notification is universal. See the Central Independent Television case, loc cit n 13.
657
m e Modern Law Review
[Vol. 55
explanations and records of these orders had been far less adequate. Even at these courts - the most extensive record-keepers - we were unable to deduce reasons for many orders and were able to do so with great difficulty for most other orders. These deficiencies are not simply irksome to academic researchers. Surely, part of the purpose of keeping a permanent record is that levels and patterns of restriction orders can be monitored by those with an interest in press freedom and open justice.82The absence of such records makes it much more likely that there will be great variation between courts and that excessive resort to secrecy will pass unquestioned.
(iii) Reasons for Orders In total, our survey (see Table 1) detected slightly more Contempt of Court Act orders (604)83than the number of cases (512)@ from which they emanate. This divergence arises when, for example, a variety of orders affects several defendants or a lengthy trial. However, the converse can happen - one order in one case may affect not only that case but also a forthcoming trial. There is a similar disparity between the number of orders and the reasons for those orders (626). The order sometimes contains more than one identifiable reason. Less frequently, one reason is the spur to separate orders under sections 4(2) and 11. In the light of these variations, all three elements - cases, orders and reasons - have been separately recorded. In addition to this information, we sought to relate our findings in respect of Contempt of Court Act orders to the extent and nature of the workload in our target courts. Thus, data was supplied by the Lord Chancellor’s Department concerning not only ‘receipts’8s for committal for trial but also the class of offence charged. Categorisation into class 1, 2, 3 or 4 type offences follows the Practice Direction (Crown Court Business classification).% This Practice Direction grades the seriousness of offences so that a suitably qualified judge can be allocated to preside over a case. For the purpose of this study, those offences that are, broadly-speaking, serious indictable offences and fall into classes 1, 2 or 3, are grouped together in Tables 2 and 3. Those crimes in class 4 which are triable either way or are specified as less serious indictable offences remain distinct. We isolated eleven separate reasons for Contempt of Court Act orders (Tables 1 and 3). The first is a ‘blanket’ order, where there is an embargo on reporting a case in its entirety. Not only does this represent the most extreme type of restriction but also the court documentation will rarely explain the justification for such an order, why a lesser restraint would not suffice or when the order is to be lifted. These problems were encountered in several cases at the Central Criminal Court (one order dated 17 October 1988 relating to a murder trial lasting four days, and another dated 27 January 1988 relating to firearms and robbery charges in w iich the trial lasted for three weeks). The second reason is to restrain the reporting of ‘pleadings’ in a given ca:e, a situation recognised in Court Business item B1460 as ripe for an order. This cate ;ory involves a plea (normally a guilty plea) to charges where there are several defend ints, 82 83 84
85 86
658
See McCormac, ‘Open Justice’ (1990) 154 JP 148, at p 151. Renewals and extensions were not counted as new orders. A ‘case’ means a trial based on a specified indictment (or joined indictments). There may be s :Vera1 defendants. This has the same meaning as ‘case,’ supra. [1987] 1 WLR 1671.
September 1992)
The Reporting of Crown Court Proceedings
only some of whom are pleading guilty, or a sole defendant who has pleaded guilty to part of an indictment but a trial is to proceed on the remaining counts. The third reason focuses on matters relating to the jury. A commonplace situation would be events surrounding the discharge of a jury which, if reported, could prove prejudicial to a re-trial. Orders under this heading will also include matters regarding the deliberations of the jury, or if something has been mentioned by a juror, or if members of the jury were threatened. An example from the Central Criminal Court in the third category concerns a rape trial in which the jury was discharged (order dated 18 September 1986). Another order (dated 4 December 1985) was issued after members of the jury were allegedly approached on behalf of the defendants. The order prohibited reporting of the evidence heard in chambers and of the judge’s questioning of the jury about the matter. The fourth reason also relates to the jury and concerns evidence or legal argument heard in its absence of the jury. This situation is also cited in Court Business item B1460 and will apply where there is a ‘trial within a trial’ to determine the admissibility of some evidence or other legal submissionsby counsel. Examples at the Central Criminal Court arose in the well-publicised cases involving the trial of Michael Bogdanov, in connection with the play ‘The Romans in Britain’ (16 March 1982),87 and the trial of several soldiers who had served in Cyprus and who were charged with offences under the Official Secrets Acts (17 May 1988).** The fifth reason comprises orders which have expressly forbidden reports of the identity of a defendant or several defendants, especially if they are likely to appear in related proceedings. At Knightsbridge Crown Court, several orders were made which directed that there should be no mention of the name, title or nationality of the defendant. In addition, there have been orders which suppress details of the defendant’s address, and orders which preclude any mention of the defendant’s relationship with the victim. This category will also cover orders which suppress details such as other charges, bail proceedings, previous offences and previous sentences. An example of a section 4(2) order concerned a trial of persons accused of violence at soccer matches where further supporters were to be tried in the near future (Central Criminal Court, 18 May 1983). Under the sixth reason (identification and details of persons other than a defendant) are orders which relate to witnesses, police officers, police informants, blackmail victims, Members of Parliament and other figures in the public eye, as well as complainants in sexual offence cases. We detected orders made at the Central Criminal Court concerning rape victims both under section 4(2) (25 June 1988) and under section 11 (2 June 1982), even though automatic protection was available under the Sexual Offences (Amendment) Act 1976. Another order in this category, which suppressed the name of the principal prosecution witness in a kidnap trial (18 January 1984), was later challenged in ex parte Cr00k.8~Orders have also suppressed the reporting of a company name involved in alleged fraudulent trading (Central Criminal Court, 1 November 1985) and the titles of allegedly obscene books and videos (10 May 1984). The seventh category is ‘identification evidence’ and refers to those orders which specify that there should be no publication of a photograph or artist’s impression of either defendants or witnesses who appear in court. This is presumably relevant 87 88
89
See ‘The Romans in Britain’ (1982) PL 165. See Report of David Calcutt QC on his Inquiry into the Interrogations carried out by service police in Cyprus in February and March 1984 (1986) Cmnd 928 I . op cit n 54.
659
The Modern Law Review
[Vol. 55
where the identification of such persons is at issue in the trial. An extreme example occurred during the trial of several defendants for riot, affray, assault and murder. After a front-page photograph of the defendants appeared in a newspaper, the judge made an order under section 4(2) (Central Criminal Court, 22 January 1987). The eighth category again follows the guidelines in item B1460 and concerns the postponement of publication of part of the proceedings where it is likely to prove prejudicial to other related proceedings pending or imminent. We have included in this category orders which postpone reporting because there is likely to be a re-trial, or where the counts on the indictment have been severed and there is to be a later trial, or other indictments of related offences await process. Some cases involved a multiplicity of related proceedings and so the postponement orders have been particularly far-reaching in effect (one extreme example concerned related charges of theft, conspiracy to steal and conspiracy to defraud - Central Criminal Court, 9 March 1982). Orders have also stipulated that there should be no publicity of a verdict, sentence or conviction of one of the defendants, especially if there are others standing trial, or the fact that certain defendants, indicted on the same offences, have been acquitted. We have also included orders which restrained publicity of the fact that a defendant was serving a custodial sentence and orders which required that nothing should be reported about the reputation or character of a person, so that it would not be brought to the attention of a jury in another court. Some orders suppressed factual details, for example, dates or locations of the commission of offences. Also included are pleadings which are likely to prejudice other related cases pending or imminent; this is distinguished from our second category, which refers specifically to pleadings within a given case. The ninth category covers contempt proceedings. Orders arose on the few occasions where a defendant, witness or some other person was subject to pending contempt proceedings resulting from alleged attempts to interfere with the administration of justice. One illustration involves a defendant charged with riot, affray and murder. During a lunchtime adjournment at the Central Criminal Court, the defendant’s mother and another woman allegedly swore at a witness. The matter was reported to the trial judge, who dealt with them summarily for contempt on the following day. An order was made under section 4(2) (17 March 1987) covering the contempt proceedings. The tenth category deals with ‘miscellaneous applications by counsel,’ such as an application for an adjournment or to discharge the jury.w One example concerned an attempt to exclude persons with children under 14 from a jury which was to try a case involving indecent assault and the possession of indecent photographs (Central Criminal Court, 6 November 1984). The application was not granted, but an order about the application itself was made. The final category covers miscellaneous, other purposes. The vast majority of the orders in this eleventh category simply defied any explanation, either because it was not possible to trace any details of the case or because it was not discernible from the details why an order had been issued.
(iv) Inferences from the Statistics (a) Variations between Courts Table 1 demonstrates in turn the total number of cases subject to Contempt of Court Act orders, the total number of orders and the total number of reasons for orders 90 If the discharge is granted, this falls within our third category.
660
33
41
355 10
II
-
41
Total orders
Total cases
365
42
-
42
Total reasons
10-
2 -
9 8 -
7
Contempt procedure Misc. appl. Others
9 3 0 I S 65
- - - 2 -
307
365
376 5
6
-
-
2 1 10 - 9 8 - -
2 9 - - 4 - 7 8 3 -
1 3 6 - -
4 2 0 9 1 4 9 7 7 1
35
7
-
4 I 9
6
-
-
6
3 9 4 3 0 1 1 5 7 6 5 -
-
-
3 4 1 7
Blanket order Pleadings Jury matter Absence of jury Identification of defendant Identification of other Ident. evidence Related process
Reasons
7
-
5
5
6
-
-
-
-
29
33
6
-
-
-
- - -
4
3 1
-
-
5
-
-
1
3
-
2 2 5
23
29
33
6
-
-
4
-
12
14
6
1
-
I I I
-
5
3 -
-
I
I
2 5 I 3
-
-
-
-
-
-
-
-
1 1
1
3
12
12
14
I 6
-
-
1
-
-
-
I
-
-
-
-
-
-
-
24
26
-
-
- - - 4 -
5 12
-3
-
1
-
-
-
-
24
24
26
13
12
-
1 - - 4 5 -
1
1
-
5
-
-
- - - 2 2 -
12
3
1
I
9
13
12
5
1
-
1
2 2
-
111
113
4
5
5 18 -
5 5 - 12 -
6 -
2 I 63 -
1 -
99
115 590
118 610
14
16
4 5 15 18 142 -
-
41 14 6 12 119 1 10
-
146
15 43 21
512
604
626
4 15 142
22
5
s
af
9 0
3'
55 3 6 ' p 120
1 5 9
1 5 4 3 2 1 146 6 5 8
1 2 1 63
Central Swanseal Birmingham Criminal Coun Gloucester Knightsbridge Lewes Peterborough Carmarthen Winchester Total s 4 s 11 Total s 4 s 11 Total s 4 s I 1 Total s 4 s I I Total s I s 11 Total s 4 s 11 Total s 4 s 11 Total s 4 s 11 Total s 4 s 11 Total
Table 1 Reasons, Orders and Cases by Court for 1982-89 (to 30 June)
The Modern Law Review
[Vol. 55
Table 2 Ratio of Reasons for Recorded Orders to Case h a d and Offence Type for 1982-89 (to 30 June) Average no. receipts p.a.
Average no. reasons p.a.
Ratio receipts: reason
Class 4 Total Class 1-3
Class 1-3
Class 4 Total
Class 1-3
Birmingham Central Criminal Court Gloucester Knightsbridge Lewes Peterborough SwanseaKarmarthen Winchester
214.1 948.1 27.7 10.7 74.4 4.5 55.3 144.5
2543.2 2757.3 403.5 1351.6 413.1 440.8 2374.4 2385.1 832.7 907.1 314.7 319.2 899.6 954.9 305.9 450.4
3.5 34.0 1.3 2.0 1.1 0.9 1.7 10.9
2.1 16.1 2.7 7.4 2.0 3.1 1.7 7.2
5.6 50.1 4.0 9.4 3.1 4.6 3.4 18.1
61.2 27.9 21.3 5.4 67.6 5.0 32.5 13.3
Average
184.9
1010.9 1195.8
7.2
5.4
12.9
29.3
court
Class 4 Total 1211.0 25.1 153.0 320.9 416.4 85.1 529.2 42.5
492.4 27.0 110.2 253.7 292.6 69.4 280.9 24.9
347.9 186.0
in each of the Crown Courts within our survey. Perhaps the most striking feature from Table 1 is the great variation in output, ranging from the Central Criminal Court (307 cases, 365 orders and 376 reasons) to Gloucester (5 cases, 5 orders and 6 reasons). This range may be explained by three factors. The first is the availability of records. If an average of reasons per annum is taken for only those periods when we were sure that records were being compiled9’ (Table 2, column 2), output at the Central Criminal Court (50.1 per annum) still exceeds by far that at other courts, but Lewes (3.1) turns out to be the least productive, with Swansea (3.4), Gloucester (4.0) and Peterborough (4.6) not far ahead. The second factor concerns the case loads of the respective courts. One would naturally expect that busier courts would produce more Contempt of Court Act orders than quieter courts. Statistics supplied by the Lord Chancellor’s Department (Table 2, column 1) reveal that Birmingham (2,757.3 on average per annum, or 20,680 in total during the research period) and Knightsbridge (2,385.1 average, 17,888 total) bore the heaviest case loads. Peterborough (319.2 average, 2,394 total) and Gloucester (440.8 average, 3,306 total) had the lightest input. The third factor concerns the nature of that case load. Analysis of the receipts (Table 2, column 1) demonstrates that, as expected, the Central Criminal Court has by far the heaviest load and highest proportion (70.1 %) of Class 1-3 cases (948.1 average, 7,111 total). Winchester is the closest (32.1 %) in character (144.5 average, 1,084 total). Birmingham receives a large number of Class 1-3 cases (214.1 average, 1,606 total), but they represent a low proportion of its load (7.8%). Peterborough (4.5 average, 34 total, 1.4%) and Knightsbridge (10.7 average, 80 total, 0.4%) received the smallest number of serious cases pro rutu. An attempt is made to relate the second and especially the third factor to the making of Contempt of Court Act orders in Table 2, column 3 by comparing the annual average of orders and receipts. The lowest ratio of case receipts per Contempt of Court Act reason (and therefore the most frequent promulgation of orders) occurs at Winchester (1:24.9), with the Central Criminal Court close behind (1 :27.0). The highest ratios were recorded for Lewes (1 :292.6) and Birmingham (1 :492.4). Therefore, there does appear to exist a correlation between the making of Contempt of Court Act orders and the seriousness of the alleged offences, but the ratios for 91
662
The following periods when no orders were recorded for a whole year were discounted: Gloucester - 6 years; Lewes - 3 years; Knightsbridge - 4 years; Peterborough - I year; SwanseaKarmarthen - 4 years; Winchester - I year.
September 19921
7he Reporting of Crown Court Proceedings
Peterborough (unexpectedly low at 1:69.4) and Birmingham (unexpectedly high at 1:492.4) seem out of line. Table 2, column 3 further confirms that there is, in all bar one court, a far greater propensity to issue a Contempt of Court Act order in a Class 1-3 case than in a less serious Class 4 case. Overall, it appears almost 12 times more likely that a Contempt of Court Act order will be associated with a Class 1-3 case rather than a Class 4 case. This differential is exaggerated in that it treats all nine survey courts as having equal case loads, whereas 79 per cent of reasons are recorded at Winchester and the Central Criminal Court, both of which have much lower differentials. Therefore, if one compares the total number of Contempt of Court Act reasons (376 for Class 1-3,250 for Class 4) with the total receipts for all courts together (10,414 and 42,780), but disregarding those periods when we suspect that no contempt records were available, the ratio is 1:6. Consideration of the ratios in particular courts (Table 2, column 3) somewhat clarifies the case of Birmingham. The fact that it has the highest ratio overall (1 :492.4) is attributable to the extreme rarity of orders in Class 4 cases (1:1211.0), rather than in Class 1-3 cases (1 :61.2). The court with the most anomalous return is the Central Criminal Court, the only location at which reasons are more frequent in Class 4 (1:25.1) than in Class 1-3 cases (1:27.9). This result may be affected by the allocation of more serious cases between the Central Criminal Court and other London courts, so that the Class 4 cases it receives are more serious than the average. It should also be noted that the Central Criminal Court acts as a national court and therefore attracts disproportionate journalistic attention. The variety of reporters present (not all of whom may be versed in British law) means that it is perhaps less safe to expect ‘fair’ reports under section 4(1). To a lesser extent, Winchester Crown Court may be influenced by similar factors, since it also has facilities (such as high security) which tend to make it a venue for particularly newsworthy cases. Another notable finding is that the lowest ratios in Class 1-3 cases are in Peterborough (1 :5 .O) and Knightsbridge (1 5.4). As may be deduced from Table 2 (by expressing column 1 as a percentage of column 3), these are the two courts with the lowest proportions of Class 1-3 receipts (1.4% and 0.4%). Thus, the low ratio in such cases may indicate that offences of that kind are viewed as automatically special. To summarise, there does appear to be some correlation between the seriousness of the offence and the likelihood of Contempt of Court Act orders. However,‘variation between courts is far greater than this factor alone would suggest. It may therefore be inferred that local influences, such as circuit guidelines, the views of clerks and the proclivity of presiding judges, remain of great importance.
(b) Variation Over Time As well as demonstrating variations between courts, our survey also detected some variation over time. Thus, Table 3 demonstrates that, where records were available for 1985 and 1986 (Birmingham, Central Criminal Court, Knightsbridge, Peterborough and Winchester), these years witnessed the heaviest output of Contempt of Court Act orders in three of the five courts (the Central Criminal Court, Knightsbridge and Winchester). This surge could be explained by an increasing awareness of the requirement that an express order must be issued, a matter which had produced a reminder from the Lord Chief Justice in 1985 (see below). A further possible explanation is item B1460, which was circulated to Crown Courts in May 1986. Perhaps this was regarded as a warning of required practice and, more importantly, it clearly delineated three examples when a court report could be 663
The Modern Law Review
[Vol. 55
Table 3 Reasons by Year and Offence Type (continued over)
Reasons Blanket order Pleadings Jury matter Absence of jury ldentification of defendant fdentification of other Ident. evidence Related process Contempt procedure Misc. appl. Others Total reasons
1982 1983 I984 1985 Class Class Class Class 1-3 Class 4 Total 1-3 Class 4 Total 1-3 Class 4 Total 1-3 Class 4 Total
4 I 2
I I I
3
-
I
-
I
21
I 5 I 3
I 2 I 1
3
2
1
5
1
-
3
-
2 4 3 20
2
3
5
6
3
9
3
8 21
8 5
5
59
25
17
6 -
7
-
-
14
9
12
15
36
28
31
-
1 1 3
I 8 I 3
-
-
1
4 3 16
6 0 6 36
2
13
15
8 -
4 -
-
10
I1
4 9
42
56
64
120
6
1
8 20
postponed. Another factor could be that, between 1984 and 1987, there were a number of important reported cases, such as Crook and Ponting, where the press had challenged orders made under sections 4(2) and 11. Such publicity over the misuse of orders, as well as the increasing unease expressed by the press over court secrecy, possibly contributed to greaterjudicial adherence to the spirit of the Act. The influence of these factors may be expected to recede in time (leading to a resurgence of reliance upon section 4( I)), unless further warnings are periodically issued. Table 3 also attempts to correlate the variation over time to case type. The figures reveal that for the first four years (1982-85), the totals were very similar between both categories of seriousness of offences. Thus, the average number of reasons in Class 1-3 cases was 32.5 per annum and, for Class 4, 31.8 per annum. However, after 1985, the number of reasons in Class 1-3 cases appears to have increased substantially to 70.3 per annum, but in Class 4 to have remained static at 35.1 per annum. In terms of receipts over the whole period for which there are records, there were about four times more Class 4 cases than Class 1-3 (42,780: 10,414). It follows that during 1982-85, given an even number of reasons relating to each class, the ratio is approximately 4: 1 in favour of Class 1-3. Yet, from 1986-89, there are approximately twice as many Class 1-3 cases affected as Class 4, so a Contempt of Court Act reason became eight times more likely to be associated with such offences, and those categories of offence were the focus of virtually the whole of the surge in output after 1985.
(c) Variation in Reasons Disregarding those orders (‘others’) for which no specific reasons could be discerned, it would appear from Table 1 that the most frequent form of order (146) concerns matters dealt with in court in the absence of the jury (our category of reason 4). The next most popular reason (120) seems to be to postpone details of proceedings where there are related proceedings pending or imminent (category 8). In descending order of priority, our fifth reason (identity of defendant) occurred slightly more frequently (59) than the sixth (identification of others) (55). However, one major distinction between the two was that 14 of the 55 relevant reasons in category 6 664
September
19921
The Reporting of Crown Court Proceedings
Table 3 (continued) Total 1986 1987 I988 1989 (to 30 June) Class Class Class Class Class 1-3 Class 4 Total 1-3 Class 4 Total 1-3 Class 4 Total 1-3 Class 4 Total 1-3 Class 4 Total I 3 3 25
-
9 6
I 7
2 22 79
3 3 9
I 6 6 34
5
1
4
9
1
5
6
1 13
-
I
-
I
5
-
5
10
-
II
4 31
2 I 14
6
2
8
5
-
5 2 14
I I 8
6 3 22
5 2 9
3
I
-
I 5 4 20
-
I 1 13
-
12
3 34
7
2 I 20
48
127
72
35
I07
6 2 2 21
I 7
12
-
-
10
I
I
5 22 8 49
43 21 I46
5
-
5 2
-
1
2
4
-
-
3
15
-
-
33
26
59
4
38
-
5 6
17 I 54
55 6 I20 15
-
4
4
8
6
1
1
-
-
II
1 14
-
II
6 22
8
I 22
I 13 79
3 2 63
142
60
23
83
35
17
51
376
250
626
6
-
-
15
21 13 97
4
were based on section 11 rather than section 4(2). By contrast, only one out of 59 in category 5 was a section 11 order. It appears encouraging (since it involves but a temporary restraint) that the courts have preferred their powers under section 4(2) to those under section 11 in the suppression of identities, but it is possible that the trend simply reflects a gap in the records on section 11 for reasons already explained. The next most common reason (43) for the use of section 4(2) was to postpone the reporting of pleadings in a given case (category 2), another purpose specifically mentioned in item B1460. The remaining reasons on our list were cited on substantially fewer occasions. However, we were left with a large category (142) of ‘others’ (category 1 l), most of which were unexplainable rather than issued for reasons of a nature different to categories 1- 10. This pattern in reasons was broadly the same in all nine courts. However, the variation in time shown in Table 3 is interesting. The numbers of orders in all categories were found to be steady, apart from category 4, which reveals a sudden increase in 1985. This trend was especially marked at Winchester and the Central Criminal Court and is probably attributable to item B1460 issued in May 1986 and to circulars issued by Circuit Offices, all of which encouraged express orders to be made instead of implicit reliance upon section 4( 1). For example, in respect of Winchester Crown Court, there was a memorandum in 1985 from the Circuit Administrator which warned that it could not be assumed that the press would have the good sense or fairness not to publish matters where no order had been issued. Hence, an express order was advisable whenever there was a ‘trial within a trial’ or partial pleas. This memorandum might account for the high proportion of orders made for this purpose (category 4) at Winchester Crown Court from 1985 onwards. Furthermore, as the memorandum in 1985 referred to comments by the Lord Chief Justice, perhaps we can assume that this factor extends beyond Winchester.
(v) Conclusions on the Survey In some respects, our findings concerning the use of Contempt of Court Act orders are reassuring. First, we did not detect any inexorable increase in the promulgation of orders, though there has been a sustained increase beginning in 1985. The 665
m e Modern Law Review
[Vol. 55
increment mainly comprises orders relating to Class 1-3 cases, but there is strong evidence that it was engineered for the acceptable reason of avoiding undue reliance upon section 4( 1). Second, we discovered that most Contempt of Court Act orders were made for uncontroversial reasons. However, there remain two substantial causes for disquiet. The first concerns the high number of reasons (22.7 per cent of our total) classified in category 11 (‘others’). Our main difficulty was lack of evidence on which to explain these orders, a problem which takes us back to the issue of record-keeping. However, there were also a number of well-documented cases in which the reasons given for orders seemed to us neither convincing nor relevant. Thus, we cannot be sure that all orders are as necessary as sections 4(2) or 11 require. The remedies lie not only in fuller and more open record-keeping but also in a clearer statement of the law and a more open system of challenge. The second major failing detected in the present system concerns the variation between courts. This variation cannot be explained entirely by reference to the nature of their case loads, and so it must be concluded that like cases are not being treated alike. The remedies for this failure of justice are the same as for the first problem.
C Possible Reforms The present restrictions on reporting are located in a bewildering hotchpotch of obscure common law, statutory powers and administrative advice. In their place, there should be a unified statutory code governing the reporting of criminal cases. The guiding principle should be that of open justice. This principle should be stated in the code in the form of a presumption in its favour, which would apply to all criminal proceedings. In so far as open justice may legitimately be restricted, the code should take account of three considerations: the degree of any restriction; its form; and appeals against its imposition.
(i) Powers of Restriction Any law which limits the principle of open justice should be clear and closely defined. The objective of restraints must be to secure legitimate interests which are pressing and substantial. Limitations must be rationally connected and proportionate to the objective. Rational connection and proportionality demand that there be a wide range of possible restrictions, and these should be arranged in a sliding scale of impact.92 The most extreme restriction currently resides in the common law power to conduct in camera hearings. This power should be translated into a clear statutory form, and its use should be confined in three ways. First, the court should consider less intrusive restrictions. Second, the circumstances when it is permissible to conduct proceedings in camera should be precisely stated and should reflect those accepted by the House of Lords in Scott v Scott. Third, the court should set a future date for review of the suppression of the transcript of the proceeding^.^^ One step down the ladder of severity comes a permanent ban on publication, which would be permitted under a reformulated section 11 of the 1981 Act. Again, the 92 93
666
This approach broadly follows that in the Canadian Law Reform Commission’s Working Paper No 56: Public and Media Access to the Criminal Process (1987). See Robertson and Nicol, op cit n 5 5 , at p 266.
September 19921
The Reporting of Crown Court Proceedings
court should first consider whether less extreme measures (such as a mere postponement of reporting) would suffice. A second precondition should be that the details to be suppressed have been effectively withheld from the public. Third, it should be required that the purpose of the order relates to the proceedings; orders should not be issued on grounds of privacy or the comfort of litigants. Fourth, it should be specified that banning orders may be acceptable to preserve the anonymity of the following: the victims of blackmail or specified sexual offences; police informants; or other victims, defendants or witnesses whose safety may be endangered by publication. The rationale behind these categories is that their co-operation is necessary to achieve an effective and fair trial and that identification of them may defeat that purpose either immediately or in the future. There may also be a case, albeit weaker than that of victims, for the anonymity of defendants accused of rape and other serious sexual offences (as was formerly allowed under section 6 of the Sexual Offences (Amendment)Act 1976). This protection may be justifiable because of the extreme media attention engendered by such cases (possibly leading to public hostility towards defendants both before the verdict and after an acquittal) and by the unique ignominy of the offence. A future date for review of any order should invariably be set. Postponement orders, as under section 4(2) of the 1981 Act, should be issued sparingly, so less intrusive methods should be considered in priority. The alternatives include a change of trial venue or directions to the jury and the press. The court should be told to ensure that an order protects the administration of justice rather than personal feelings. Thus, it should be specified that a postponement order may be necessary (subject to countervailing considerations, such as the likely effect of publication and the public interest in the case) in the following circumstances: where a defendant has pleaded guilty to part of an indictment but not guilty to other charges; where a defendant is connected with related, imminent proceedings; or where matters are considered in the absence of the jury. Finally, no order should be allowed to continue after the verdict, though the court could be empowered then expressly to renew the order for a set period. All of the foregoing restraints would require express deliberation and orders by the courts. However, there is a case for retention of the automatic restraints in relation to committals, rape victims, juveniles and indecent materials (except perhaps for the latter category). Publication of such proceedings would often affect the future administration of justice, and reliance upon ad hoc applications would be inconvenient and ineffective.
(ii) Forms of Restriction The practice rules as to the form of section 4(2) and section 1 1 orders are far from satisfactory, and three major criticisms may be levelled against them. The first is that the extent of the required record-keeping is both unclear and unduly limited to Contempt of Court Act powers. The second problem concerns the quality of such records as are compiled. Instead of the present, haphazard arrangements, there should be a standard form prescribed by statutory instrument. This should stipulate whether the order falls under section 4(2) or section 1 1 ; it should not confuse the issue by allowing both statutory provisions for one order (this occurred occasionally at Winchester Crown Court and the Central Criminal Court). The information which ought to be included on this standard form should include: the case number, the defendant(s), whether there is a related case, the offence, the judge’s name, the court number and the time, date and duration 667
The Modern Law Review
[Vol. 55
of the order. Further, time and date when the order was displayed and removed from the press noticeboard should be recorded (as at Winchester). Finally, the exact terms of, and reasons for, the order should be made apparent. There is much to commend the approach taken at Gloucester Crown Court, whereby the order includes a list of four reasons and the court clerk can delete those which are not applicable. However, there should be space to stipulate any additional purpose which is not specified on the standard form. In addition, a transcript of the judge’s comments should be appended as at the Central Criminal Court and at Lewes Crown Court. The third criticism concerns the almost total failure to monitor or to react to such meagre records as are maintained. The need to record each derogation is potentially a valuable precaution, but the safeguard can only be effective if the record-keeping is consistent, clear and comprehensive and if the records are properly monitored and available to the public. One remedy may be a periodical statistical bulletin issued by the Lord Chancellor’s Department.
(iii) Appeals The envisaged statutory code should also lay down procedures for appeal against the imposition or failure to grant an order. The present system, contained in section 159 of the Criminal Justice Act 1988, needs modification. First, the possibility of appeal to a Crown Court should extend to orders made by magistrates. It should also be possible to take such important constitutional issues to the House of Lords. Second, the variety of procedural flaws in the supplementary Crown Court rules should be corrected. As well as an effective appeals system, there would be merit in devising an earlier, first tier of protection for the public and press in the court minded to impose r e ~ t r a i n t Though .~~ the Court of Appeal has recently shown sympathy for this proposal, the ability to challenge at source lacks statutory backing and therefore remains at the mercy of the trial judge.
(iv) Rights of Access In addition to restricting public knowledge about court proceedings, any new code should facilitate the gathering and dissemination of information about litigation. Issues to be dealt with would include rights of physical access (including by televi~ion),~~ a restatement of section 4(1) of the 1981 Act (without the requirements of good faith and contemporaneity)and the right to consult and copy a wide range of court documents, such as the court list, transcripts, and orders and findings.y6The elaboration of these issues is beyond the scope of this article.
94 95
96
668
See ibid p 263. See Dockray, ‘Courts on Television’ (1988) 51 MLR 593; Working Party of the Public Affairs Committee of the Bar Council, Report on Televising the Courts (1989); Battersby, ‘Trials by Television’ (1989) 133 Sol J 230; Walker and Brogarth, ‘Televising the Courts’ (1989) 153 JP 637; Courts (Research) Bill 1990-91, HC No 24. At present, access to such information is largely dependent upon administrative guidance (especially Home Office Circulars 78/1967, 80/1989 and Lord Chancellor’s Department, Court Business No 9/89, item 81904).
September 19921
7he Reporting of Crown Court Proceedings
Conclusion It would be naive to assume that the media reporting of court proceedings is invariably an unalloyed good. Indeed, the recent spectacle of the televised rape trial of William Kennedy Smith in 1991 has caused some observers to re-evaluate the desirability of access to the courtroom.97Yet, the modest reforms suggested in this article would hardly reproduce the degree of media licence to intrude which prevails in the United States. In any event, the realisation that the media are capable of misbehaviour should not blind us to the fact that judges and the legal system can also perpetrate considerable injustices, which may neither be exposed nor remedied without media pressure.98
97 98
Compare Brompton, 'When Cameras Turn Justice Into Pornography,' The Times, 13 December 1991, p 13; Brill, 'How the Willie Smith Show Changed America' (1992) The American Lawyer, January/ February, p 3. The several cases which prompted the establishment o f the Royal Commission on Criminal Justice in 1991 surely fall into this category.
669
