Written evidence from DR SALLY REARDON,[1] DR BERNHARD GROSS,[2] DR THOMAS SMITH,[3] and MARCUS KEPPEL-PALMER [4] (All from the University of the West of England)

INTRODUCTION – WHY WE ARE MAKING THIS SUBMISSION

We are a team of interdisciplinary academic researchers comprising two members of the School of Journalism (Reardon and Gross) and two members of the School of Law (Smith and Keppel-Palmer). We have been undertaking fieldwork projects on aspects of reporting in Criminal Courts in England and Wales. The first project (2018) specifically considered the reporting of Magistrates Courts, concluding there was a significant absence of reporting at that level. Our results were disseminated at via publication and several conferences, including a paper for HM Courts and Tribunals Service Media Working Group. We also submitted evidence to the Justice Committee’s Report on Court and Tribunal Reforms (2019). Our most recent fieldwork involved interviews with regular reporters of Criminal Court regarding their experiences during the first Covid-19 lockdown in Spring 2020. A summary of our results has been presented at the Future of Journalism Conference (2021). This submission provides a more detailed overview of findings related to reporting and open justice.

COURT REPORTING DURING THE FIRST LOCKDOWN

During August 2020, we conducted semi-structured interviews with several Court reporters about their experience of covering Courts during the first few months of lockdown, in Spring 2020. The interviewees came from a range of news outlets across England and Wales. These interviews capture a unique and fresh insight into a particular window of the Covid-19 pandemic and Court reporting – as this will not realistically be possible to obtain again, this represents a vital insight into this period. The reporters were asked about their experiences and their opinions around the themes of access to information and Courts; use of technology; relationships; the longevity of changes in working practices; and the issue of Open Justice. Broadly, the journalists found many positives about the move to digital Courts. Once the Cloud Video Platform (CVP) system was fully operational it meant:

1. Reporters could cover several Courts simultaneously whilst at home or in the office.

2. This resulted in being able to produce more copy.

3. Being able to write up stories remotely without disturbing the Court meant copy could be turned around faster.

However, there were drawbacks:

The technology did not always work, meaning reporters missed some cases altogether or could not hear or see certain parties to the proceedings.
There were difficulties in obtaining information remotely.
The ability to ‘chance’ upon cases by being in Court was lost.
The loss of face-to-face witnessing of proceedings meant reporters could not ‘look the defendant in the eye', which enabled better insight into the proceedings
Most importantly, there was the loss of relationships with others involved in cases such as lawyers, Court staff, probation staff etc – all of whom aid journalists' work
Journalists were concerned whether Open Justice was operating sufficiently, with only journalists being allowed to join digital Courts.

In the long term, reporters said they would like the choice of remote or in person attendance at Court as this would provide greatest flexibility and enable them to best fulfil their role as the ‘eyes and ears’ of the public. In the following sections we have mapped our findings onto the key concerns of the inquiry.

HOW HAS THE MEDIA’S COVERAGE OF COURTS CHANGED AND WHAT ARE THE IMPLICATIONS FOR OPEN JUSTICE

The study demonstrated how significantly the media’s coverage of Courts changed during the early stages of the Covid-19 pandemic. Interviewees mainly covered Crown Court, while some covered Magistrates’ Courts. In the first few weeks of lockdown, interviewees almost universally experienced limited or no coverage, with Courts either being shut; not yet having online systems for reporters to access hearings; or if they did, lacking clarity on how to do so.

Routines completely changed for all reporters almost immediately in late March 2020. Pre-pandemic, the reporters would generally attend physically every day, to identify cases (either pre-selected or found at Court); and then produce copy later the same day. After lockdown was announced, most were either working on non-Court reporting matters or picking up any hearings that were running – in essence, this represented a limbo period with extremely limited coverage and reporting. Within a few weeks, Courts began hearing a small selection of cases remotely or facilitating access for reporters. Most reporters would attend these virtually (often needing to request to do so through varying processes, on a Court-by-Court basis). A couple of reporters described attending Court buildings to watch remote hearings. Most reporters eventually settled into a daily pattern of covering cases remotely from home, achieving this by looking at daily lists and requesting access for the next day’s hearings. All reporters noted the benefits of this: it allowed coverage of a broader range of hearings in different Courts at the same time and the ability to produce copy whilst observing hearings. This meant that more stories could be identified and written up more quickly. This was overall seen as an easier, stress-free approach to Court reporting, removing travel concerns and the limitations of physical presence.

However, significant disadvantages were noted, including the inability to simply ‘pick up’ important cases by attending full Court days; the inability to effectively and consistently interact with other parties to cases; and the inability to identify or clarify important details and issues in cases. Most reporters said they were ‘in Court’ (that is, accessing hearings) much less initially, but that this eventually increased and probably outstripped pre-pandemic reporting. Few missed hearings they wanted to access. Whilst the method of engaging with hearings was different, it appeared most had not changed their core reporting practice (that is, to make notes and write up into copy) – this had in fact become more efficient. Whilst most recognised the benefits of working online, they felt that Court reporting should be done, primarily, in Court physically. By August 2020, all reporters had returned to physical attendance almost exclusively or largely – with social distancing and other adjustments.

The journalists generally felt that whilst Open Justice was undoubtedly affected by lockdown, it had been broadly maintained in principle via the involvement of the press in virtual hearings. All recognised the importance of external scrutiny of criminal Courts and agreed that the Courts had made efforts during this time to ensure that the press could access hearings and thus uphold Open Justice.

However, public access was quite different. Respondents felt that the public had essentially had no access whatsoever to virtual hearings for most of lockdown, for two reasons: through a lack of proactivity on the part of Courts to ‘outreach’ and advertise open Courts; and through actively denying access to members of the public. In this sense, Open Justice continued to operate in some form for the press but not for the public at large. Respondents speculated this might be because members of the public generally do not attend, and therefore the Courts regarded this as something not worth facilitating. Several suggested it was because of concerns about being able to control public behaviour in hearings – particularly the inability to prevent recording of virtual hearings. Whilst respondents thought it was of concern that the public had essentially been barred from accessing hearings, they felt this should not be a problem as the press acted as their ‘eyes and ears’ during this period. In terms of press access, it was generally felt that Open Justice was, in practice, suspended during the very initial phase of lockdown, with no clear ability to access to cases (and at times, resistance to allowing press to do so). Once the systems/protocols for allowing press to join hearings had been clarified, respondents felt they generally had good access – most notably to a much broader range of cases than pre-pandemic, due to the ability to access hearings that might otherwise be missed or could not justifiably be attended. This was regarded as positive for Open Justice. However, it was noted that the inability to more deeply scrutinise cases by interacting with participants directly (something common pre-pandemic) meant that reporting could not be as detailed. Additionally, issues with technology could at times make it difficult to properly access and therefore report on hearings, due to poor quality of audio or inability to see defendants. These limitations therefore diluted Open Justice in terms of its quality. It was also noted that, if press (like the public) were not ‘in the know’ or part of an ‘inner circle’, access could be unfairly restricted. As such, this suggested Court staff could act as arbitrary gatekeepers.

Overall, it was felt that some use of digital hearings post-pandemic was likely and probably positive; this was because limited use for less serious hearings (for example, case management) could allow press to gain easy access to hearings and provide a fuller picture of the case to the public via reporting. However, there might also be a risk that press could be cut out of such hearings, making them effectively invisible. None felt that continuing digital hearings for all/most cases would be positive for Open Justice. This was felt to deviate too far from traditional notions of collective, scrutinised justice; it was felt that getting back to physical attendance with people in the same room would be the ideal.

We propose carrying out further research into the actual numbers of Court reports published in this particular period, to assess whether there have been more or fewer than before Covid-19.

WHAT ARE THE BARRIERS TO THE MEDIA OBTAINING INFORMATION FROM THE COURTS

Apart from some technical issues, respondents cited the loss of face-to-face interactions with those involved in proceedings as the main barrier to journalists being able to produce accurate, and rounded reports on cases. Journalists rely on building relationships with Court staff, lawyers and judges as well as victims and witnesses, probation and police services. Conversations in corridors to check details of what happened in Court or how cases might proceed are vital for journalists to be able to follow and report effectively. Often these ‘corridor conversations’ do not make it into the report, but serve as background information for later reporting and publication.

During the first months of lockdown these existing relationships were vital, as they often had the contact details of Court staff, lawyers and other reporters. As such, they could to some extent continue to contact people to check or gather information. Knowing the Court staff also gave them more confidence to ask questions during remote hearings. However, it proved more difficult if they tried to gain information or access to Courts that they did not usually attend pre-pandemic or where they did not have pre-existing relationships. The advantages of being able to cover more Courts without having to travel were negated by the difficulties of tracking down the right person to email and get access codes.

There was considerable anxiety about how long this working arrangement could be effective, as building trust with the various people in Court was seen as extremely difficult online. As one reporter put it:

I feel like it's been sustained on momentum. So it's cases that had already started, it was people that already knew each other. If you had to do this for three years, then when the PA Reporter changes because she gets a better job or somebody else comes in, then suddenly there's somebody that nobody knows, new lawyers coming in who don't know people, don't trust people, new Court staff. You can see that the ability for the system to keep going and for the public still to be having the press there and listening in will slowly decline.

WHAT COULD BE DONE TO MAKE INFORMATION ON COURT CASES MORE TRANSPARENT AND ACCESSIBLE

As above, there is a differentiated experience between regular Court reporters – those who attend a particular Court regularly and have built relationships with Court staff, lawyers, Judges etc – and those reporters who do not have the relationships, and also members of the public. Information and accessibility need to operate at a standardised level. Reporters identified that there were different procedures occurring at different Courts.

To ensure access, Court lists need to be published online for all Courts with sufficient information (full name of defendant, address, and charge) to ensure that reporters and members of the public have basic information before attending a digital hearing. Journalists reported that practice varied from Court-to-Court, although they acknowledged that when lists were online this was an improvement. Journalists also noted that it was problematic getting results lists following hearings.

Journalists noted difficulties in accessing information during cases. As above, many relied on relationships with lawyers, Judges and Court staff to confirm information and get background. However, being remote during digital Court hearings has impinged on this informal method of information gathering. Of course, opportunities to build these relationships diminish when journalists are not in Court. Also, journalists noted that some evidence in cases could not be seen by or accessed by those watching, which is an important departure from Open Justice. Of note was CCTV footage, which could not be displayed across the CVP platform and was therefore not accessible to be viewed by journalists and observers. Reporters and viewers had to rely on the Judge’s summary of the footage. As the footage was not shown in Court, the CPS would not release the footage to be viewed by Journalists, considered to be a departure from Open Justice. This may necessitate an exception to Copyright.

Key to future accessibility should be the open nature of access to CVP, not just for the press but also members of the public. Links and access should be openly and freely available without gatekeeping processes through the Court (a need to request the link, a need to ask permission etc). Digital Court lists should have a link embedded.

Finally, journalists described the difference of in-person attendance and remote attendance in that they could look for reactions of defendants (“looking them in the eye”) and witnesses. Transparency could be improved by the ability to access multiple camera angles at once – admittedly a higher technical challenge.

THE EFFECT OF COURT REFORM AND REMOTE HEARINGS ON OPEN JUSTICE

Once remote access was established widely, journalists agreed it enabled them to join and report on proceedings in Courts that they may not have attended otherwise, e.g., because they were too distant from their usual location of work, a proceeding was too short to warrant attendance, or proceedings clashed. With the closure of Courts and the diminishing number of local newspapers having dedicated Court reporters, this flexibility can potentially reignite the coverage of Courts.

At the same time, journalists also raised concerns about how decisions would be made as to who would have access to the system, if it were continued in the long run. This concern had two main dimensions: access to the wider public and/or privileged access for bona-fide journalists. Issues such as the increased potential for contempt of Court were balanced against the need to ensure Open Justice.

You couldn't make the feed available freely and then stop people recording it. … The lack of public access, it is a concern. … In reality nobody ever goes, but they can if they want. But now you can't. You know you can't now see what's happening, which put a bit of pressure on us. We're supposed to be there to be the eyes and ears, and it’s a sort of a cliché, but the eyes and ears of the public. That's certainly the case now, 'cause no one else is there.

Journalists also noted how the way Court proceedings were conducted shaped the way they wrote reports. Three main aspects are important to mention in this context.

the fact that Court reporting is more than just reporting on Court proceedings but entails the gathering of contextual information through conversations and interactions outside the Courtroom.

But this is sort of trying to gather little details, which will open up areas for your own kind of investigative reporting, that kind of Court work. … That kind of proper journalism as opposed to sort of just taking notes and writing it up, is essentially on hold.

the way online Court proceedings can limit public exhibition of certain types of evidence (e.g. CCTV evidence);

the way that remote Court proceedings have the potential for limiting getting a sense of the defendant as well as fully seeing/witnessing the defendant. The latter aspect may be the most obvious concern as it relates to Open Justice and how remote or mediated meetings can deliver quite a different perception of proceedings and, when taken to the extreme, provide more potential for manipulation. There is no suggestion that this manipulation has taken place, only a highlighting of its potential.

Whilst 1 and 2 could be considered to be merely journalistic rather than Open Justice concerns, they can be considered important in a wider, Open Justice context. They are relevant to the ability of journalists to hold power to account effectively and remote hearings, as described above, limited the ability of journalists to move beyond merely witnessing hearings to scrutinising Courts. As such, the respondents raised Open Justice concerns if Covid-19 style virtual courts continued in the long term.

CONCLUSIONS

This snapshot of court reporting in lockdown shows that journalists felt they had coped well in a crisis and had mainly fulfilled their function of informing the public of the workings of Courts. However, they did raise some significant concerns around the long-term repercussions of remote hearings in terms of Open Justice and in-depth reporting (which we have termed ‘Justice Reporting’ in previous publications). Although, the number of cases covered could be increased through use of the CVP system, this was made possible due to pre-existing relationships that enabled reporters to obtain sufficient information to report. They were concerned that over time these relationships would deteriorate, which could detrimentally affect the quality of in-depth reporting.

Based on these findings we would suggest that the concerns of journalists around the issues of Open Justice are addressed in any move towards remote, digital Courts in the future.

October 2021