Written evidence from Tristan Kirk, Courts Correspondent, London Evening Standard

I work as a specialist court reporter for the Evening Standard newspaper and website, covering stories from London’s criminal and civil courts. I can offer views which are based on first-hand experience of day-to-day court reporting, as well as conversations with colleagues from around the country.

Changes in the way media covers the courts

In the last 18 months, a potential new frontier of court reporting has opened up with the advent of remote hearings. There are great opportunities to dramatically increase the amount of court reporting that is done in the UK. However those chances could be lost if the temporary changes brought about by the pandemic are mishandled when converted into permanent reforms.

Remote hearings

The process of the media applying to join remote hearings was hastily put together in March and April 2020. What emerged was largely workable, albeit in very challenging circumstances:

-          Journalists send an email to the court, marking it as a ‘MEDIA REQUEST’, identifying the hearing and its date

-          A court administrator sends on the request to the relevant judge, and if approved, the CVP link is sent to the journalist by email

-          The journalist ‘signs in’ to the CVP room, and is admitted to hearing by a member of court staff

Positives:

The ability to join court hearings via CVP is transformative for a reporter such as myself, who has multiple courts to cover and potentially lengthy public transport journeys between hearings. It is now possible for me to cover a 9.30am plea hearing in Harrow, a 10am listed trial in Croydon, a sentencing hearing at Snaresbrook at midday, and an Old Bailey hearing at 2pm, using a mixture of CVP links and in-person reporting. Prior to the pandemic, I would have been restricted to a maximum of two of those four hearings.

Some court hearings are very high-profile, drawing the attention of the national and international media to the point where there are more reporters seeking to attend than number of available seats. The Julian Assange extradition hearings last summer spring to mind as good examples. Remote technology was harnessed to create digital overspill courts, where reporters followed proceedings via a CVP link when there was not enough space in the room.

Similarly, smaller courts that struggle to accommodate the number of reporters who have attended a hearing can relatively easily set up a CVP link to ensure that all those who have attended or are interested in the case can attend the hearing in some way. I have seen the technology used in this way hundreds of times in the 18 months. There is no reason why this should not continue beyond the pandemic.

It is a reality of the modern newsroom that, overall, there are less reporters, and there are fewer journalists being dispatched to court. If the option to be able to follow court proceedings from the office was widely available, this would encourage more court reporting.

All of these potential positives of remote reporting come with a significant caveat; that reporters must always continue to have access in-person to court proceedings and any future embrace of technology cannot interfere with the primacy of journalists being in the courtroom itself. Remote hearings must be an add-on to traditional court reporting, not a replacement.

Negatives:

The technology employed in the courts to date for remote hearings is often substandard, whether through broken connections, unrelenting feedback, or disastrous sound quality. For remote hearings to become a permanent – and workable – part of the justice landscape, there needs to be significant investment.

When something goes wrong for journalists in remote hearings, such as not being admitted to the hearing, there is little that can be done practically - and quickly - to rectify it. It is an unfortunate reality that London’s magistrates’ courts can no longer be contacted directly, either by phone or email. Contact centres cannot offer any meaningful assistance when CVP connections have gone awry. A dedicated hotline for the media, set-up in the early stages of the pandemic, no longer functions effectively.

There are basic tasks that journalists need to achieve to be able to report a hearing effectively: checking spellings of names, knowing what the indictment contains, checking the defendant’s date of birth and address, and asking about reporting restrictions. Court staff, lawyers, and judges have been tremendously helpful in the last 18 months, but always on an ad-hoc basis. There is no protocol to assist journalists in carrying out their job on a remote hearing, and there is little evidence that the operation of the CVP system has been amended to accommodate the needs of the media. Trying to interject in a busy court list is difficult on CVP, messages to the clerk sometimes go unanswered, and the court administration officers are not always able or willing to fill in the gaps.

In the event that a journalist who has been given permission to attend a court hearing remotely is not admitted, or drops out of the hearing unexpectedly, there is nothing in place in terms of rules, protocols, or guidance for staff or judges to deal with such an event. In reality, they perhaps don’t even notice. Pre-pandemic, locking the doors of the courtroom to exclude the media would be considered abhorrent. In the new era of remote courts, the digital equivalent of locking the doors should be treated with equal seriousness, even if it is inadvertent.

The use of the CVP system has been unevenly applied from court to court, with some judges embracing the technology and others refusing to engage at all. While barristers on the circuit may become accustomed to the different rules being applied from court to court, journalists are very much on the outside and can be left perplexed as to why a particular court or judge has turned down a CVP request.

In that vein, it would be an enormous step forward for a national protocol to be drawn up, setting out in general terms when a journalist can apply for CVP remote access, under what circumstances, and when – generally – it may be deemed inappropriate. Of course, individual judges will retain the power to decide on the conduct of their hearings, but at the moment there is no guidance at all, either from HMCTS or the Judiciary, on how remote hearings are going to be dealt with post-pandemic.

A trend I have noticed in some courts is judges only allowing remote access to journalists when one of the parties in the hearing - judge, barrister, or defendant - is already utilising the CVP system. This is a perplexing approach which frames the media very much as outsiders of the justice system, rather than professionals carrying out an important role. It would be helpful to see a change in this approach in the future.

Court reform

The Police, Crime, Sentencing, and Courts Bill includes measures to formalise the changes that were forced in during the pandemic. I think it is unhelpful that they have been included in an omnibus Bill, and they will inevitably receive less attention than they deserve. While we have grown accustomed to remote hearings in the last 18 months, it was all introduced in a hurry, with no formal consultation or impact assessment. In many respects, we have seen a radical change in the way justice is administered.

The Single Justice Procedure

I have previously set out my views on the Single Justice Procedure (SJP), the effect it has had on open justice and transparency, and the way it operates in practice: https://committees.parliament.uk/writtenevidence/26045/pdf/

I strongly believe the operation of SJP should be thoroughly reviewed by government, to determine if it is actually an effective system, whether it is truly transparent, and if it is an appropriate model to use in the future.

As the committee made clear in its earlier report on Covid-19 regulations, SJP was not an appropriate mechanism to prosecute these new laws of high public interest. Beyond whether it was a good idea, I think the experience has exposed the deep flaws in the SJP system when it comes to open justice.

As a journalist attempting to cover Covid-19 cases which were being conducted through SJP, I found vast numbers of hearings taking place effectively in secret. The court staff running the system in London had either forgotten to send out lists of cases, or did not think they had to. Results registers were similarly withheld, and as far as the public were concerned, nothing at all on Covid-19 SJP cases was available. Staff were either unaware that the open justice principle had been left resting on their shoulders, or they were so under-resourced that they were unable to discharge the duty. It may be a combination of the two.

Requests for disclosure of documents in SJP cases can take weeks to be answered, sometimes months. Because of the way the legislation was passed in 2014/15, there is an impression that the basic court listing (containing the defendant’s details and charge) is sufficient to form a news story. In reality, we require the full bundle of evidence to replicate what would have previously been heard in open court. When obtaining that information takes weeks to achieve, it calls into question whether the system is meeting its transparency duties.

If I were to recommend changes in the spirit of openness, I would suggest:

-          Disclosure of information to the media must become an integral part of the SJP process, so that hearings cannot be deemed completed until that has happened.

-          As with the introduction of Covid-19 regulations, if there are to be significant changes in the operation of SJP in the future, the media should be fully informed and consulted to ensure the process is protected.

-          SJP court administration teams must be resourced sufficiently to handle open justice duties.

-          SJP Notices of Prosecution could be disclosed to the media automatically, alongside regular listings. This would enable the media to better identify the cases they are interested in.

Judicial Review and Courts Bill

The travails of SJP with regard to transparency should offer a stark warning to MPs when assessing some of the clauses within the Judicial Review and Courts Bill. Within the Bill are provisions for the functions of tens of thousands of magistrates’ court hearings to be dealt with administratively, behind closed doors. This is another depressing assault on open justice, included in a piece of legislation alongside more eye-catching reforms and therefore unlikely to receive the scrutiny it deserves.

The proposal to allow ‘first appearances’ in either way offences to sometimes be scrapped would, in theory, make the system more efficient. What may have been overlooked is the effect that would have on open justice. Those hearings are often a journalist’s gateway into covering the case, hearing for the first time what the allegations are, often the defendant’s indicated plea, and details of how the case is to progress in the future. Taking those hearings behind closed doors, making them administrative functions involving emails between lawyers, would be damaging to the media’s ability to pick up on and report criminal cases. It would mean many cases that would have been reported on at magistrates’ court will only make the news if included in a police or CPS press release after conviction.

If this reform goes through, to mirror the level of openness we currently enjoy the courts would have to disclose case papers, correspondence, and records of judicial decisions. It would place a huge burden on the court administration staff, and the past experience of SJP tells me that system would not, as it currently stands, be up to the task.

No proposals have yet been made by the MoJ on open justice and transparency to accompany these proposed reforms. It is my hope that they do not get enacted. It is hard to overstate how dramatic the effect could be on court reporting in this country.

Access to documents

The way that courts in this country operate has gradually evolved over time, so that increasingly lawyers and judges communicate through emails and uploads to the digital case system. What has been left behind is the way journalists can gain legitimate access to those digital documents.

Two months ago, I attended a sentencing hearing at the Old Bailey where the prosecution did not ‘open’ a single word of the case against the defendant. The judge assured the prosecutor that her note had already been read, and in sentencing the judge briefly summarised the crime. But ultimately I was told I could not have a copy of the prosecutor’s note to help with my reporting. Key details had never been said out loud, because there was an over reliance on the closed digital system. This was one of many examples I could produce, of digital innovation speeding up the court process but with no thought of the damage that was being done to openness and effective media reporting.

I believe now is the time to consider opening up - in limited terms - the digital case system to journalists. The Common Platform has been introduced to make the courts work more efficiently. HMCTS could look at creating a ‘media section’ on the system, to contain the basic details of a case, the indictment/charge sheet, a copy of reporting restrictions, judge’s sentencing remarks, and perhaps items like the aforementioned prosecutor’s note. That appears to me to be an uncontroversial proposal, but one that requires political will and financing to make it a reality.

Listings

Court reporters are ordinarily provided with a wealth of material on magistrates’ hearings through the listings system. Lists are dispatched by email, arriving at different times depending on the court, and sometimes being less than complete.

Currently, a process is underway to change the presentation of listings, as part of Common Platform reforms. What has accompanied those changes so far is an alteration in the ‘results registers’ that journalists receive. They are now in Excel spreadsheet format, making them utterly unusable for reporters who need to be able to skim-read lists. The problems have been identified to HMCTS, but a solution has not yet emerged. What is troubling is that this problem has now persisted for several months, with little apparent drive to fix the issues. Each day, court reporters are deluged with spreadsheets that they cannot effectively use, and more and more court cases go unreported.

HMCTS has in operation a Media Working Group, of which I am a member. The group’s effectiveness has been adversely affected by the pandemic, and the number of meetings held per year have been halved. The group itself does not have a direct say on policy matters, which also limits the input that media representatives can have.

Meanwhile, court reforms seem to be coming in thick and fast, with potentially massive reforms on the legislative agenda and dramatic alterations to the way the media interacts with the justice system. It is essential that the media has a strong voice in the process, at all levels, to ensure that effective transparency measures are built in right from the start rather than added on later to fix problems that could easily have been avoided.

October 2021