Written evidence from the News Media Association

             
I am writing on behalf of the News Media Association, the voice of UK national, regional and local newspapers in all their print and digital forms.  Our membership spans the industry, from the largest groups to small, independent family-owned companies.  NMA members publish more than 900 news media titles read by over 49 million adults every month in print and online. 

Q1. How has the media’s coverage of courts changed and what are the implications for open justice? 

1.1           Digital technology has enabled news media titles to rapidly grow audiences who now expect to be able to access trusted and accurate journalism in a variety of ways, across different platforms. In addition to producing written reports, journalists now report on events using still and moving imagery captured on their phones, as well as posting live updates onto social media and their own titles’ websites, directly from the location they are reporting from.

1.2           The richness and immediacy of reporting across multiple media in this way creates real benefit for the public who can consume trusted journalism in more ways than ever before. This dynamic applies to reporting on the courts as much as it does other newsworthy events. Using digital technology, journalists can provide the public with instant updates from hearings, augmenting their ability to act as the “eyes and ears of the public” and uphold the principle of open justice.  This vital function of journalism in the 21st century should be protected and strengthened by the courts.

1.3           Open justice is for all practical purposes dependent upon the press reporting the courts to the wider public.  New guidance was developed in 2018 by an HMCTS working group involving media representatives, a revised version of which is due to be published by the end of this year.  This is part of a wider effort to build stronger working relationships between courts and the press and maintain public confidence in the integrity and independence of the courts.

1.4           The demand for accurate, verified information from reliable news media sources has intensified during the pandemic. Throughout this period the NMA has been working closely with the Ministry of Justice and HMCTS to maintain media access and reporting and to address any practical issues that have arisen as a result of the Covid-19 arrangements.

1.5           While demand for trusted journalism grows, the revenues which fund it have plummeted, leading to widespread title closures and redundancies.  Diminished staff numbers and resources translate inevitably to fewer reporters in court.  And the closure of many local centres, usually magistrates’ courts, means that, for many newsrooms, getting to court involves a lengthy journey which further deters coverage.  Available resources are therefore necessarily focused on the most important case, which may be distorting the public’s impression of the range of cases dealt with by the courts.  This also results in a lack of opportunity for individual journalists to build up solid court experience, which traditionally has been a mainstay for the development of professional standards and disciplines.  It would be detrimental to open justice if the courts were to lose the expertise of dedicated newspaper court reporters who are knowledgeable, under editorial control and bound by ethical codes.

1.6           Turning to inquests, NMA members find that co-operation from coroners and court staff varies enormously, with some feeling that the privacy of those involved is considered more important than keeping the public informed. Due to lack of resources county courts are rarely covered, even by dedicated court reporters.  The same applies to the various tribunals, whether first tier or professional disciplinary, where the media are highly dependent upon judgments published online.

1.7           Reporters’ absence from court means that publishers turn increasingly to third party sources, and not just news agencies. We see more press releases issued post-sentence from prosecuting bodies (such as local authorities or the RSPCA), the police and claimants’ solicitors in civil cases, all usually aiming to present themselves in a favourable light.  Members find that these accounts can sometimes be inaccurate and biased, giving rise to complaints – but of course the media remain responsible for their publication under the Editors’ Code of Practice. 

Q2. What are the barriers to the media obtaining information from the courts?

      2.1     All journalists covering court cases are acutely aware of their legal responsibility to comply with any reporting restrictions made by judges and magistrates.  The Judicial College guidance Reporting restrictions in the criminal courts (May 2016) stipulates that an order should be committed to writing as soon as possible after the oral announcement of it in court; there should be procedures in place to notify the media that an order has been made; and copies of it must be furnished to them. It also states that an order should be “in precise terms, giving its legal basis, its precise scope, its duration and when it will cease to have effect, if appropriate”.  In practice, this often does not happen. Reporters can spend a considerable amount of time chasing an order and when it is finally communicated the wording is vague. Sometimes journalists are told it’s “automatic” or the “usual”, it has “not been written yet” or a copy is “not to hand”. This is a common problem in magistrates’ courts in particular.

2.2    When precisely written orders are not readily available the media often cannot report the case until they have been able to clarify the exact terms of the restriction and be certain that any published article complies with it, to obviate any risk of being in contempt of court.  That clearly has an impact on open justice.

2.3     Reporters canvassed for this Call for Evidence said that unwillingness on the part of court staff constituted a significant barrier to accessing information on a day to day basis.  And yet, for the reasons outlined above, the media need them more and more.  A partial remedy would be the further improvement of automatic access to court information. HMCTS does supply court lists and registers to many or perhaps most newsrooms, but execution is variable and still depends on the efficiency and compliance of court staff. The general level of co-operation from court officers locally when responding to press enquiries varies significantly, which suggests a gap in the training, notwithstanding that the Criminal Practice Direction sets out at least some basic obligations.  Some publishers turn to the commercial solution embodied in the new Courtsdesk information service.

2.4     Understanding of and commitment to the principle of open justice is uneven, and not just in the court office.  The pressures on judges and the Crown Prosecution Service discourages them from prioritising the press or seeing its role as an integral part of the judicial process.  Contrary to the advice given to them by succeeding DPPs, CPS prosecutors rarely stand up to speak for open justice when the media make representations, nor do NMA members find the CPS volunteering to guide the court on relevant law; as one commented, “The most we can usually hope for is a weary silence and neutrality”.  Some even find courts unaware of the straightforward guidance given by the Judicial College, despite this having been endorsed by the Lord Chief Justice and distributed to all court centres.  We consider that a familiarity among all participants in the judicial process with this guidance alone would avoid or resolve a considerable proportion of the difficulties reporters experience in relation to access and reporting restrictions, together with specific training that points to open justice as an objective, not an impediment.

2.5     What this also shows is that the nature of the problem is well known and some of the solutions are already thoroughly explored and readily available.  However, there seems to be a general lack of will among those involved to make the solutions work or to think it important to do so.  Another pertinent example of this is the operation of the ACPO Media Protocol, which enjoins CPS prosecutors to assist journalists in getting access to material given in evidence. Reporters continue to encounter ignorance or obstructiveness, and there is a suspicion on occasion that the disregard of the press is calculated on the part of counsel.  Again, better training and a genuine commitment to open justice must be at least part of the answer.

     2.6     In bigger or more complicated cases we consider that media reporting should be a primary consideration at an early stage in case management discussions.  Indeed the press should be invited to submit thoughts or concerns they may have if it is practicable to do so (and that may include email exchanges with editors). We say this not to create an additional burden, but to avoid one.   Engaging with the media rather than excluding them from the process can be constructive and it is much more likely to identify and nip potential issues in the bud before they actually become a problem. And judges should be advised to be particularly wary of counsel making applications affecting reporting in the absence of the media, especially when those restrictions might, for instance, have the effect of prohibiting the identity of a defendant client.

Q3.  What could be done to make information on court cases more transparent and accessible?

3.1   Proper public scrutiny of all proceedings is essential, including oversight of those conducted online or decided upon the papers. Even seemingly trivial penalty proceedings can be newsworthy, particularly at local or regional level.

3.2     We have already touched on the need for training and a shift in the culture which can on occasion seem to treat the media as a nuisance to be tolerated rather than another professional sharing a common purpose.  As for practical measures, the private sector solution offered by the Courtsdesk software is described by some as having ”seized the opportunity”, while HMCTS’ digital information service has been less successful.  Among Newsquest staff, for example, the general opinion is that the Common Platform court lists/registers are difficult to use.   One problem with Courtsdesk, however, is the limitations imposed on it by HMCTS – it only goes back six months, whereas Crown Court cases can last far longer.  Freeing up Courtsdesk to provide the service that is really needed would help.

3.3     One key initiative that would greatly assist court reporting would be for the MoJ to set up a centralised repository of court lists and associated court documents.   Magistrates’ courts generally issue daily court lists to assist the media, but not all crown courts do so.  Editors must have advance, straightforward access to comprehensive court and tribunal lists, containing sufficient information about cases at each stage, so that they can discern those relevant to their audience and deploy reporters to cover them.  That requirement is important whether a matter is to be heard in open court or remotely.  Making lists universally available would not only help journalists, it would also result in court staff having to deal with fewer media inquiries about charges and related details.  Not only the courts but also the police and other prosecution authorities should be encouraged to provide advance notice and information.

3.4    Upon request, prosecutors often provide reporters with copies of their opening speeches (checked against delivery) and perhaps these could also be accessed via the digital case management system, along with other documentation such as skeleton arguments and copies of the indictment.  Indictments are a particular problem, given that they can be long and complicated and are subject to change.  We appreciate the need for safeguards to avoid the publication of information not given out in open court.

3.5    Journalists often encounter problems in obtaining information as to what can and cannot be reported about particular court proceedings. For court orders to be made available to journalists via a secure, searchable database would be a major step forward, but this would be reliant upon the courts committing reporting restrictions to writing in precise terms without delay [see para 2.1 above].

3.6   The press must have access to the full outcome of the case.  In respect of magistrates’ and crown court criminal cases that means that they should be supplied with the full register of court results.

3.7    Editors comment that it is clear from the complaints they receive about legally compliant, fair and accurate reports of court cases that many people caught up in the judicial process, particularly victims and witnesses, are unaware of the media’s right to report proceedings, including names and all other information given in open court, unless there is a reporting restriction. We would welcome measures to improve transparency and ensure all those involved in a court case are aware of the open justice principle and, consequently, the possible publication of media reports which might include their name and other details. This is even more important in this digital age when reports of any news event have a permanence which did not apply when they appeared only in print.

Q4. The impact of social media on court reporting and open justice 

4.1    Social media is undoubtedly valuable in extending the reach of reports of court cases; it can play an important role in ensuring the dissemination of reliable and effective information in circumstances where that information is published with due deference to editorial opinion regarding its newsworthiness and the accuracy of content.  If journalists tweet, file or blog from the courtroom, they can inform the public of what occurs at court more quickly than traditional media forums.  Journalists can potentially engage more public interest in court proceedings if they are given updates as events occur. This could increase the openness of and access to the courts.

4.2     However, many newspapers encounter difficulties with the desire of certain web users to have their say on social media. The comments pages on our members’ own websites are governed by their user terms and (frequently) a tool to report objections, and they can quickly intervene as necessary.  As a general rule NMA publishers do not post reports of live court proceedings on any social media where comments cannot be disabled and do not allow comments on website reports of ongoing cases.  User generated commentary on Facebook, Twitter or elsewhere is much more difficult as publishers have only limited control over the pages they use; they are subject like any other user to the site operator’s policies and decisions.  An obvious risk is the identification by members of the public of victims or witnesses whose identities have been protected by order of court. Such incidents can deter future witnesses and complainants coming forward or giving evidence. Social media sometimes feature discussions about current cases that give rise to a substantial risk of serious prejudice.

4.3   Journalists regulated by IPSO and those working for media outlets that operate their own codes of conduct maintain discriminating professional standards that are not shared by the wider public.  Reporters may sometimes voluntarily choose not to include details in their coverage of a case on the grounds that they are sensitive and unnecessary (such as intimate sexual details, addresses of burgled elderly widows, unsupported detrimental and irrelevant allegations about witnesses not in court etc.), but they cannot prevent social media posts including such details and linking to publishers’ websites.  However, it is crucial that judges do not make reporting restriction orders against media companies in an attempt to regulate social media comment by members of the public.  Such orders are unworkable, disproportionate and in clear breach of the open justice principle.  Parliament is in the process of passing legislation in the form of the Online Safety Bill to address some of these issues.

4.4   Sadly, a significant number of social media users resort to abusive, hateful and sometimes racist or homophobic language.  The NMA’s Journalism Matters Editors Survey found that 92% of editors said that they or their journalists had received abuse or threats on social media.  Anti-press trolling, especially that directed at women, is a form of hate speech that is intended to intimidate and silence.  The intent can be to belittle, pressurise and discredit reporters - and ultimately to undercut public trust in critical journalism and facts.   Social media companies should be encouraged to step up and regulate posts of this nature.  In the NMA’s published submission to the Online Safety Bill Joint Committee we suggest detailed solutions to get the balance right.

Q5. The effect of court reform and remote hearings on open justice 

Court reform

5.1    The NMA has been concerned to ensure the maintenance of open justice during the MoJ’s ambitious Court Reform Programme, which aims to bring new technology and modern ways of working to the way justice is administered.  In recent years we have met with Ministry of Justice officials and participated in the MoJ stakeholder group and the HMCTS Media Group.  We have also made submissions to relevant consultations and Parliamentary committees on the reform programme. We hope that the Ministry of Justice will encourage further the regular and comprehensive training of all court and tribunal judiciary, officials, administrative staff and professional users on all aspects of open justice. 

5.2    This is another area where greater trust between the media and courts would bring benefits all round. The media must be consulted at a local as well as national level when court reform is considered; sometimes national policies cannot be translated easily in local conditions.   Following up on this point, we understand there are court users group in most court centres where judges, probation officers, and prosecution and defence lawyers discuss matters such as how the court is run and how cases should be handled. Local newspapers are court users and the eyes and ears of the public.  They are essential to ensure that justice is seen to be done.  We propose that local editors or senior reporters should be part of these groups so that they can raise practical issues as necessary from time to time and give a view as to how proposed changes would affect reporting.

Remote hearings

5.3    Video hearings were always part of the HMCTS Reform Programme plans, although their introduction was accelerated due to the pandemic.  We welcomed the assurance that we received from the Courts Minister Chris Philp in October last year that the Government was “committed to upholding the principle of open justice, whatever the format or mode that a hearing takes place”.

5.4  An Ops Note issued by HMCTS on 16 April 2020 provided the media with information about how to submit requests to observe and report on a court or tribunal hearing remotely. To support these arrangements a new, dedicated national contact number was set up to provide technical support where needed.  Journalists’ remote access to court hearings has presented no risk to the administration of justice or inconvenience either to the court or those involved in the proceedings.

5.5   The feedback from dedicated court reporters about remote hearings has been generally positive.  However, the Journalism Matters Editors Survey established that 42% of editors felt that obtaining access to court hearings or documents had become more difficult over the past year.

5.6    Remote hearings have enabled reporters to work more effectively because they mean they can cover cases away from local bases, not just in the Crown Court, but also at the Court of Appeal.  Nevertheless, this is as always dependent on the co-operation of court staff.  One Newsquest reporter said: “There was one occasion in the early days of remote hearings where I asked in advance for access, gained access on the day and was then immediately thrown out.  Again, if court staff know you, it helps considerably”.

5.7    The Cloud Video Platform [CVP] system was found by reporters to be quick to set up and relatively easy to navigate. However, sometimes links broke and this inevitably caused frustrations.  Set times for hearings made coverage easier, but reporters were not always notified of delays to a case and this could cause problems. There were also occasions, when restrictions were beginning to ease and not all counsel still attended remotely, that it was difficult to hear those barristers who appeared in person. In such circumstances, reporters often opted to go into court themselves to ensure they heard everything said in the proceedings.

5.8     Not physically being in court meant that it was difficult for the media to obtain or check information such as defendants’ ages and addresses. Ciaran O’Brien, Director of Communications at Reach plc, comments: “Where our journalists already had a relationship with court staff, they were able to email the clerks, who were usually very helpful, but clerks are busy people and could not always get back quickly”.   He suggests that consideration could be given to such information being available digitally through limited and secure access to the digital case management system.

5.9   Scrupulous observance of the normal statutory, procedural and administrative arrangements intended to facilitate media access and reporting are of particular importance for the re-start of jury trials in the Covid-19 environment. The most important statutory and administrative measures  are now summarised in the HMCTS General Guidance to staff on supporting media access to courts and tribunals (March 2020): see HMCTS media guidance) .

5.10  As we come out of the pandemic there are fewer hearings at which CVP is an option, and judges often prefer parties and reporters to attend in person. That is also the media’s general preference, where feasible, as it allows reporters to observe reactions to help them describe the atmosphere and get responses to verdicts from victims and others involved.  However, there is no doubt that CVP provides the opportunity to cover more cases, something which is particularly important to smaller publishing sites which do not have dedicated court specialists and do not have the resources to send a general reporter to court ‘on spec’ or to cover just one case.  Having the continuing option for journalists to participate in a hearing remotely would undoubtedly enable more cases to be covered, including in magistrates’ courts, so serving the interests of open justice. However, it is very important that this is not at the expense of any public/press right to attend proceedings or any additional media rights to attend in the absence of the public, where relevant.

5.11  We appreciate that this would raise issues of policy and may require further changes to legislation, in addition to the practical, administrative and technological arrangements already in place.  In a joint letter to the Justice Secretary in October 2020 organisations representing the publishers, editors, reports and legal advisors of the UK’s national, regional and local news media companies and major broadcasting organisations expressed their willingness to explore with the MoJ, HMCTS and the judiciary how this might be taken forward.

If it would be of assistance to the Justice Committee the NMA would be happy to help facilitate meetings with publishers, in-house legal advisors, editors and their relevant reporting staff (whether general news reporters or specialist court, investigative and data journalists). 

October 2021