Written evidence from Media Lawyers Association



A.              Introduction



B.              The MLA







C. Summary



      1. about court hearings (the listing of);
      2. documents relating to court hearings (orders); and
      3. documents arising out of court hearings (skeleton arguments, pleadings, indictments).













D.              How the media’s coverage of courts has changed, and what the implications are for open justice




a.         The reach of local and national newspapers fell by 10% in 2020. 


b.         More than 2,000 staff across the UK’s national and regional press lost their jobs as a result of the COVID-19 pandemic.


c.         Digital access to media organisations has increased.  The Telegraph and the Times now have around 400,000 digital subscribers.  Around 900,000 people regularly pay for access to online journalism from the Guardian (via a combination of subscription to apps and recurring donations).  Despite the fall in use of print media, the online sites of media organisations like BBC News, The Guardian, Sky News, MailOnline, The Independent, The Telegraph, The Sun, and local and regional newspaper websites attract significant proportions of market access.


d.         Social media companies now provide news coverage in the UK.  Facebook began its news service in January 2020 and Google also licenses news content.


e.         The most popular source of news in the UK between 2013 and 2021 was “Online (inc. Social)”, which was used by 74% of the market.  41% of the market obtained news through social media, alone, and 22% share news via social media, messaging, or email.  Only 15% of the market obtained the news solely through print media.


f.           Internet penetration has reached 95% of the population.  68% have access to a smartphone.





(1) it enables the public to know that justice is being administered impartially; (2) it can lead to evidence becoming available which would not have been forthcoming if reports are not published until after the trial has completed or not at all; (3) it reduces the likelihood of uninformed or inaccurate comment about the proceedings; and (4) it deters inappropriate behaviour on the part of the court (and we would add others participating in the proceedings)”.[10]






E.              What barriers are there are to the media obtaining information from the courts? What could be done to make information on court cases more transparent and accessible?












a.         Depending which court or tribunal journalists attend there appears to be very little uniformity about how they can access the information required, especially in relation to orders which may be in force. 


b.         Court staff often appear reluctant to answer telephone queries. When requests are sent by email, it is the experience of media organisations that perhaps due to the volume of emails received, such requests often disappear into the general enquiries inbox and it may be weeks before a response is received. It is suggested that courts could have a dedicated inbox / phone line for press enquiries, which would be dealt with by staff with appropriate experience.


c.         It can be difficult to know how to access virtual hearings (as set out further, below) and there have been occasions where hearings have been turned into remote hearings at the last minute leaving the journalist unable to attend.


d.         When hearings occur by way of remote link, journalists are unable to check information with the lawyers in the case or with court staff.  This has been a particular problem during the COVID-19 pandemic. This can lead to accuracy issues where they are unable to check spellings and details which they would be able to do if face to face in the court building.




a.         Such documents are rarely provided in advance, with the result that it is necessary to try to obtain them during breaks or after court hearings are finished.  There are rare examples of good practice, such as the Undercover Policing Inquiry, which recently made the document bundle available for inquiry hearings in advance of the hearings commencing.


b.         Although the parties should provide such materials promptly, it is frequently necessary to make a formal application to court (with the associated expense) and even to attend contested court hearings to resolve such applications.  Such hearings are often not even listed until many months after a hearing. First-instance courts can often misunderstand this area of the law and take an unduly narrow approach to the provision of material.  Such expensive and time-consuming applications should not be necessary, particularly in cases in which journalists are entitled under the procedural rules to automatic access to documents (such as where witness statements are relied upon in civil trials).


c.         Even if such applications succeed, there is rarely a system in place for documents to be physically provided to journalists.  Some courts charge high sums of money for access to photocopiers.  Or else journalists are required to ask the parties’ lawyers to provide electronic copies.



F.              The implications of social media for court reporting and open justice




a.         A key tenet of the open justice jurisprudence is that juries and criminal courts can be trusted to perform their duties with diligence and care.  This is for two reasons: juries have an instinctive urge to act with fairness and juries’ minds are focused by the trial procedure.[19]  The importance of trusting a criminal jury to comply with directions made by the trial judge has been underlined repeatedly.[20] 


b.         The Court of Appeal expects judicial directions to be made to a jury to cover the risk of internet research[21] and such directions are now commonplace.[22]  The Court of Appeal expects a jury to comply with such directions.[23] 


c.         Juries’ minds are focused through the trial process.  This focusing effect is not a "polite fiction":… listening to the evidence and hearing it being tested in cross-examination in the immediacy of the court environment will be likely to focus the minds of jurors on what they are hearing in court. This is more likely … to dispel notions that they may have picked up from reading prejudicial material, rather than to reinforce preconceived views."[24]


d.         It is not simply a common law principle that juries should be trusted.  Sections 71-73 Criminal Justice and Courts Act 2015 have also introduced specific criminal offences for jurors who step out of line by carrying out research, share that research, and engage in other prohibited conduct.  There is also specific statutory power that can permit a Judge to direct the surrender of electronic communications devices for the duration of a hearing.  These criminal offences provide further protection against the risk of jurors seeking out prejudicial comment on social media.


e.         Even if comments on social media postings are highly abusive and deplorable, content is not the same as effect.  The latter has to be assessed in context by such matters as reference to what is already in the public domain (in the case of witnesses especially in the community in which they live), the status of the commentators, the nature of the comment, the effect of the trial process on those taking part, and judicial historical experience.  Social media postings are, in reality, often no more than “pub talk”.[25]  It is likely to be immediately apparent to any reader of social media comments that people are just saying the first things that come into their head and reacting in the heat of the moment.  The remarks are often not intended, or to be taken, as serious.





a.         To combat and punish social media users who step out of line. 


b.         Involve social media companies. They could be encouraged to regulate such posts.  The MLA is concerned that its members face drastic reporting restriction orders at a time when the focus of the criminal Courts is not on the social media websites who are actually responsible for the publication and deletion of prejudicial comments on those websites.  In the same way as newspapers and broadcasters regulate comment pages on their websites, social media websites are likely to have the ability to find solutions to these problems (such as, for example, the use of filters on their sites to identify commentary on ongoing court cases, geoblocking or temporarily blocking certain postings, and providing information about postings on their platforms which might have breached Court rules). 


G.              The effect of court reform and remote hearings on open justice.



a.         Firstly, as set out above, better, centralized court lists should be provided to enable journalists to know what hearings will be heard, when.


b.         Secondly, clear information should be provided to enable journalists to understand how to obtain access to virtual hearings.  Currently, access depends on journalists being given links by court clerks, whose contact details are in some instances not readily available. There have been occasions where journalists have emailed for access in advance but not had a reply. Delay or limited access to remote proceedings has led to significant difficulties in accessing public interest proceedings.


c.         Thirdly, there should be a presumption that journalists are allowed access to virtual Court hearings where the parties are, themselves, attending by way of virtual link.  In many Courts, there is a rule that journalists must attend even virtual hearings in-person, even where the parties are attending by way of electronic link.  What is the justification for requiring a journalist to travel (sometimes significant distances) to attend a virtual hearing in a Court room?  This has led to previous Court challenges which should not have been necessary.[26]


d.         Fourthly, the system must work so that the parties are audible and journalists are not straining to hear what is being said during the course of the proceedings.


e.         Fifthly, steps should be taken to ensure that alternative means of access are available if hearing links break.  Current practice suggests that, if a hearing link stops working, a court clerk may not re-admit a journalist to a hearing for some time.


H.               Next steps




October 2021







[1] See, amongst many other examples, the anonymity appeal in C v Secretary of State for Justice [2016] 1 WLR 444, the key case on access to Court material, Cape Intermediate Holdings Ltd v Dring [2020] AC 629, and the upcoming appeal on reporting criminal allegations, Bloomberg LP v ZXC (UKSC 2020/0122).


[2] https://www.cps.gov.uk/publication/publicity-and-criminal-justice-system

[3] https://www.judiciary.uk/wp-content/uploads/JCO/Documents/Guidance/ltbc-guidance-dec-2011.pdf

[4] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/996681/HMCTS314_HMCTS_media_guidance_June_2021.pdf

[5] https://www.judiciary.uk/wp-content/uploads/2016/10/guidance-no-25-coroners-and-the-media-1.pdf

[6]              Reuters Institute Digital News Report 2017”, at pp.61-2.  Available online at: https://reutersinstitute.politics.ox.ac.uk/sites/default/files/2021-06/Digital_News_Report_2021_FINAL.pdf

[7] Reuters Institute Digital News Report 2017”, at p.55.


[8] Re BBC [2015] AC 588, per Lord Reed, at 600C-G.


[9]  Khuja v Times Newspapers Ltd [2017] 3 WLR 35, per Lord Sumption, at §13.


[10] R v Sarker [2018] 1 WLR 6023, per Lord Burnet CJ, at §29(iv).

[11] See, for example, the live tweets of the journalist, Nick Wallis from the Post Office litigation (https://www.postofficetrial.com/2018/11/day-1-morning-session-tweets.html) and of the libel claim in Depp v News Group Newspapers: (https://twitter.com/nickwallis/status/1280787530275786752).


[12] https://www.gov.uk/government/collections/royal-courts-of-justice-and-rolls-building-daily-court-lists


[13] https://www.eastlondoninquests.org.uk/hearings/


[14] Practice Guidance (HC: Interim Non-Disclosure Orders) [2012] 1 WLR 1003.


[15] A Healthcare NHS Trust v P [2015] EWCOP 15 (Fam), in which Newton J summarized the “Copy Direct” service, at §§25, 34, and 61-2.


[16] https://www.judiciary.uk/wp-content/uploads/2016/10/guidance-no-25-coroners-and-the-media-1.pdf

[17] R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2013] QB 618, Toulson LJ, as he then was, §85; endorsed by the Supreme Court in Cape Intermediate Holdings Ltd v Dring [2020] AC 629, §§38 and 44.

[18] https://www.gov.uk/government/news/attorney-general-launches-new-campaign-to-combat-contempt-of-court-online


[19] See, for example, Re B [2007] EMLR 5, §31.


[20] Attorney General v ITN and Others [1995] 1 Cr App R 204; R v Dobson [2011] EWCA Crim 1255; Ex p The Telegraph Plc [1993] 1 WLR 980; Montgomery v HM Advocate [2003] 1 AC 641, at 674.


[21]  R v Thompson [2010 EWCA Crim 1623.


[22] See, amongst many other examples, The Guardian: “Phone-hacking jury warned of prejudice risk in trial of Brooks and Coulson”, 29th October 2013.


[23] See, amongst many other examples, R v Coutts [2006] 1 WLR 2154, at §§26 and 97, R v Abu Hamza [2007] QB 659, at §90, R v C [2017] EWCA Crim 557, at §24; In re Guardian News and Media Ltd [2016] EWCA Crim 58, at §§47-59.


[24] Fraser v HM Advocate [2013] HCJAC 117, §29.


[25] Smith v ADVN Plc [2008] EWHC 1797 (QB), per Eady J, at §17; Clift v Clarke [2011] EWHC 1164 (QB), per Sharp J, as she then was, at §36.  If further authority is needed, see the Supreme Court’s recent assessment of Facebook publications in Stocker v Stocker [2020] AC 593, at §§41-46: “this is a casual medium; it is in the nature of conversation rather than carefully chosen expression … People scroll through it quickly.  They do not pause and reflect.”

[26] See, for example, the pre-action protocol letter sent by Dr George Julian: https://www.georgejulian.co.uk/wp-content/uploads/2021/05/2021.05.10-Pre-action-letter-redacted.pdf