Media Law - Court Reporting

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• CONTEMPT OF COURT
• - Causing prejudice in the jury
• REPORTING LIMITATIONS
• LIBEL RISKS
• - Media identification
• TYPE OF OFFENCE - SUMMARY VS INDICTABLE
• MAGISTRATES AND SERIOUS CRIMES 
• REPORTING RESTRICTIONS ON SERIOUS CRIMES
• SECTION 8 - WHAT CAN BE REPORTED 
• SUMMARY CASES IN MAGISTRATE COURTS
• CRIMINAL CASES IN CROWN COURTS
• JUVENILES - RESTRICTIONS
• - Jigsaw identification

Contempt of court is something that journalists must fear and seek to avoid when reporting on any 'active' court case. The Contempt of Court Act 1981 affects what can be published and details the penalties for breaking the rules laid out. A case is 'active' according to the Act from the moment the accused is charged, a warrant for their arrest issued or a summons/indictment given.

Any comment which may introduce external bias to a potential jury member - i.e. describing a defendant as a thief/murderer before they have been convicted as such - is contempt of court and may result in a mistrial.
This is a waste of the government's time and money, and if a publication's comments are identified as contemptuous and could possibly influence the public then that publication/journalist could be held liable. Contempt is a strict liability offence, just like drink driving or speeding - that is, the position of defence when being taken to court is severely limited, and will almost always result in the appropriate fine or prison term.


Taken from www.yourrights.org.uk:


In making an assessment of whether the publication does create a substantial risk of serious prejudice the court will consider:

• The likelihood of the publication coming to the attention of a potential juror.
• The likely impact of the publication on an ordinary reader at the time of publication.
• The residual impact of the publication on a notional juror at the time of trial.

Each and every court case is supposed to be judged simply on the evidence which is presented there and then; a defendant's prior convictions, for example, are not known to the jury, and the standard of the evidence must make an impression on every member of the jury that the defendants guilt is 'beyond reasonable doubt.' This is in contrast to civil law cases where the standard of proof is 'on the balance of probability' - the lower standard is reflective of less severe punishments.

The 'presumption of innocence' is key here - it is not the job of the accused to prove that they are innocent, its the job of the prosecution to prove they are guilty. This links again to contempt of court; if the jury walk into the courtroom with some preconceived idea which makes them unable to presume the innocence of the accused due to something someone has published, then justice cannot be done.



The role of the police and the limitations of reporting at each stage


Arrest without warrant - any person seen to be committing, or about to commit, any offence can be arrested straight away without warrant. The arrest in itself doesn't technically make a case 'active,' but a journalist would have to be careful to detail that the person has only been arrested 'on suspicion of' and at the end of the article to note whether they have been released or whether further enquiries are being made. At no point here can any information about the suspect be released or they could successfully sue for libel if the case doesn't go to court.

Police questioning of suspects - The arrested is taken to the police station, but people can also voluntarily walk in to give information about an investigation. Upon questioning, however, it can lead to suspicion about their own involvement in a crime and the police have the power to arrest and detain people who have walked in of their own volition. Again journalists have to be careful to make the distinction between who is helping with enquiries and who has actually been arrested, as identification of the arrested would leave them open to libel. Similarly, describing someone who has not been arrested as 'arrested' is libellous as it creates the inference that they are guilty of something.

Detention time limits - People must be released within 24 hours of questioning if they have not been charged, but someone suspected of a indictable offence may be detained for a total of 36 hours. If the police apply to a magistrates court for further extensions, the detention period can total 96 hours after which no further detention is allowed. If they are freed without charge they may successfully be able to sue the police for wrongful imprisonment or false arrest.
In the event of a prolonged detention a suspect's friends or solicitor can apply to the High Court for a writ of habeas corpus which means 'You should have the body.' It demands that the case be moved straight to court and that the police justify the detention of the suspect.

The Crown Prosecution Service - is independent of the police and decides whether a suspect should be prosecuted and on what charge. The charge can be written or in oral form. Police bail can be granted to suspects which have not yet been charged, while the police conduct further investigations. The case is 'active' for the duration of this bail, and the media has to be very careful about what is printed. If the suspect is not charged after this time then the case if no longer active, but if they are then like any charge it will begin to move to court proceedings.

Prosecution will only go ahead if the CPS's lawyers, upon examination of the evidence collected deem that there is 'a realistic prospect of conviction.' It will then have to be decided whether or not it is in the public interest to prosecute, which with almost all serious cases (e.g. indictable offences like rape or murder) it is.

The decision must be made quickly - soon after an arrest, or in the time period required to gather evidence. The prosecution can then begin after the formal charge of the suspect, or the 'laying of information' before a magistrate. This is an allegation of crime submitted either orally or in writing, at which point the magistrate will issue a summons.
A summons is a formal document which details the allegations the alleged has committed in a similar way to a charge. It can be handed to the suspect or posted to them, and at this point the prosecution can start. The suspect, upon arrival at court, is now termed the 'defendant.'

Arrest warrants - Magistrates can only issue a warrant for arrest if sworn, written information is provided that a person has committed an indictable offence, or a summary offence that is punishable by imprisonment. It gives police officers the power to arrest the suspect wherever they are in the UK and bring them straight before the magistrates court. It is another way of beginning a prosecution. A warrant like this is usually served to somebody who has not responded to a summons or requisition. It also automatically makes the case 'active.'



Libel risks in more detail

A person under investigation can sue for libel if the media reports their name or other piece of identifying information, if the investigation does not lead to a prosecution. The media can only safely publish the name of someone under investigation if a spokesperson for a government agency specifically releases it. Any libel case launched by the accused could be then defended with qualified privilege.
Publications will often balance out this risk of libel versus the amount of copy they will sell; high profile cases such as those involving politicians and celebrities will not only increase sales but they have the added benefit of  those people being unlikely to sue, as they don't want to alienate the media.

The media will also risk if it they are sure that a charge will be sure to follow the investigation - any defamation caused as a consequence of identification at the investigation stage will be overshadowed by the truth in the subsequent charge and court proceedings. Therefore it would be hard to prove in court that the damage to their reputation is due to what a newspaper has published about them before the charge. The media can then safely publish the following court proceedings under the protection of qualified privilege.

ACPO guidelines on naming of suspects - The Association of Chief Police Officers state that people under investigation should not be named but that some vague details can be released (i.e. 27 year old Brighton man.) Once a charge has been dealt, the police can release the name, age, occupation, details of the charge and date of the court appearance of the accused to the media. In exceptional circumstances led by the public interest, the name of a suspect can be released prior to the charge.

Media identification of witnesses - Courts may make orders forbidding the identification of witnesses in any media report of the case. In youth court cases, anonymity is automatically given to juvenile witnesses.
Anonymity is also given in some circumstances to any victim, witness or informant before a court case even begins and is only at the stage of investigation.
It is a breach of the Serious Organised Crime and Police Act 2005 to disclose the new identities of anyone given 'new lives' as a part of police witness protection. Disclosure can leave these people open to violence or intimidation and the offending party can face a jail term of up to two years.
Five years is the sentence carried for disclosing any information about a young person who informs the police/aids investigation about a killing in street gangs, as this again leaves them open to intimidation, harassment and violence and discourages anyone else from coming forward with information which could be crucial for prosecution.




Types of offences and misrepresentation


Indictable-only, either-way, and summary crimes - journalists must know the difference to avoid cases being misrepresented, and therefore open to libel writs.

Indictable-only offences are the most serious crimes and carry the most severe punishments. Though processed early on by the Magistrates court they can only be dealt with at a Crown court if the charge is denied, as the Crown court has greater sentencing powers than the Magistrates. The Crown court also has a jury where the Magistrates do not.

Either-way offences are those which can be dealt with either at the Crown or Magistrates court. A magistrate may decide whether the offence is too serious and send the defendant to Crown court, or decide to deal with it there and then. However, the defendant can exercise their right to a trial by jury and request that it be moved to the Crown court instead.

Summary offences are minor offences compared to the above and can be dealt with at the Magistrates court. People charged with these offences (e.g. speeding, being loud, stupid and abrasive when they're drunk) have no right to jury trial but will benefit from being dealt with more quickly than those in either-way offences who may opt to go to Crown court. Prosecution for a summary offence must begin within six months of the date when the offence was committed, or it cannot be prosecuted. There is no time limit on the other two.

Criminality 

Two elements in most crimes to consider:

• An act which is potentially criminal - the actus reus
• A guilty mind - the mens rea. It means that the act was carried out with guilty intent and that the perpetrator knew that their actions were morally wrong; this is why people can be given softer sentencing if they can prove at the time or currently they are not of sound mind, and why children are supposed to have very limited liability in this regard.

Strict Liability 

These are crimes for which it is not necessary for prosecutors to prove that accused had guilty intent. These crimes are also referred to as 'absolute offences.' Speeding and not paying your TV license are offences which are somewhat removed from morality, and it would therefore be very hard for a prosecutor to prove whether or not the person had meant to do these things with guilty intent - it is simply breaking the law and for the good of the public it must carry a set punishment which is usually in the form of a fixed fine or a summary before magistrates. 

Magistrates and the most serious criminal cases

Magistrates are referred to as the primary dispensers of justice. No matter how serious or minor the crime, once prosecution has begun the case will always go before magistrates, except those who submit to a fixed penalty where no case is necessary. For indictable offences, it will simply be a preliminary hearing en route to the Crown court. There are automatic reporting restrictions on what can be published from the preliminary hearings. The magistrates will also need to decide whether to grant a defendant bail or remand them to prison custody until the Crown court can take their case.

Indictable-only charges - 'Sending for trial' - preliminary hearings at Magistrates court. The role of the magistrate in this is only to decide whether or not to grant the defendant bail. No formal plea (of guilty or not guilty) is taken at this point as it is done later at a Crown court arraignment.

Either-way charges - mode of trial procedure - preliminary hearings also apply. The magistrates again decide if bail shall be granted and whether or not the trial should stay at the Magistrates court or be moved along to the Crown.
The defendant is asked how they intend to plead, and this is known as a plea-before-venue procedure.

An indication to plead guilty will automatically be treated as a formal guilty plea and the defendant will subsequently be convicted and sentenced (either there and then in a summary trial or at a later date, and also depending on whether the magistrates have the power to dole out a suitable punishment)

If an indication to plead not guilty is made then a mode of trial hearing will follow, where the magistrates will decide (after the prosecution and defence is presented) if the case can be dealt with in a summary trial or, if the crime is deemed too serious, the case will be adjourned for a committal hearing. The case may then go to Crown court.

Reporting restrictions on preliminary hearings in indictable-only and either-way cases


The restrictions outlined in section 8 of the Magistrates' Courts Act 1980 (and others) are designed to prevent publication of:

• any reference of evidence in the case, apart from what is encapsulated in the wording of charge(s), and
• any previous convictions the defendant has
• any other material with potential to create such prejudice.

This governs coverage of any preliminary trial at a Magistrates court which could later on go to a jury trial at the Crown court.

Evidence - some evidence which is present in a preliminary hearing may later be ruled out by the time it is taken to the Crown court; the example in McNae's is the testimony of an unreliable witness or evidence that the defendant confessed to the alleged crime if there is a chance it could have been under pressure or fabricated by the prosecution. If the media were to report pieces of evidence such as these during the preliminary stage then someone in their reader/viewership could potentially be on the jury for the same case later on - if they recall discredited evidence that they are not supposed to know then this could unfairly influence their consideration of the case and could result in an unfair conviction.

Previous convictions - in keeping with the 'presumption of innocence' a jury will not be told of any prior convictions that a defendant may have. The jury must decide if the defendant is not guilty purely on the evidence provided and the quality of the defence/prosecution - any knowledge of prior convictions (which will have been provided in the preliminary hearing when the magistrates decided whether or not to grant bail, and must not be reported) would again unfairly influence the jury and destroy the presumption of innocence. That a defendant 'probably did something because they have done similar things before' is not enough to convict somebody - it is a miscarriage of justice if they are then sentenced.

Other material with potential to create such prejudice - e.g. an alleged rapist being remanded (not released on bail) because the prosecution said that the police are also investigating them under suspicion of committing other rapes around the area - however, these investigations are then dropped through lack of evidence. If a potential juror were to read this in the paper then it would influence them into thinking that the defendant is a serial offender and this is again extremely prejudicial and could affect the outcome of the subsequent Crown court trial.



Section 8 restrictions - what can be reported

• Name of the court, names of the magistrates
• names, ages, addresses and occupations of defendants, witnesses
• the charge(s)
• names of any solicitors or barristers
• adjournment date and place
• arrangements as to bail - whether it was granted or refused; bail conditions and surety arrangement; NOT why it was refused
• whether legal aid was granted
• whether or not reporting restrictions are in force as this in itself cannot be prejudicial 
• the decision to commit any defendant to a Crown court for trial
• basic protestations of innocence
• that a defendant in an either-way case has opted for trial by jury.

The last two are not strictly covered by section 8, but they cannot reasonably be deemed as prejudicial to a trial so most media outlets will report them.

The media must not report that a defendant will enter a mixture of pleas. An admission to any charge could prove prejudicial to the trial when concerning the other charges, and so it needs to be kept quiet.

Defamatory details in denials of guilt are also to be avoided - e.g. 'I've been framed by the police' from the defendant will leave a publication open to libel suits from the police if they choose to print this.

Example of breach of section 8: In 1996, Graham Glen, the former editor of The Citizen in Gloucester was fined £4,500 for a report of the preliminary court appearance of Fred West. It breached section 8 with this inclusion that West had confessed to police about killing one of his daughters which is a reference to evidence.

Magistrates and summary cases

Many summary proceedings only concern minor crimes, but some are serious enough for a convicted defendant to go to jail.

Pleas - In a summary charge the defendant is usually asked on the first court appearance how they wish to plead. If they plead guilty they will be convicted there and then and sentenced at a later date.

If they plead not guilty then the magistrates will usually have to adjourned until they can try it. They will then decide, unless it is a very minor charge, whether bail is to be granted.

Sentencing when guilt is admitted - the prosecution will still outline the crime. Facts can be disputed, and the defence version of events must be accepted unless the prosecution is willing to prove them in a Newton hearing. At this point the defence can then make a speech of mitigating. It is a request for leniency from the court, citing reasons which may have been out of the control of the defendant.

A defendant can also, at the time of court proceedings, admit to other past crimes and have those 'taken into consideration.' They will have extra punishment tacked onto their sentence but, in return for saving police time and manpower which may have gone into investigating these crimes and lead to further prosecutions, the sentencing is generally much softer.

Magistrates can send the convicted to prison for up to 6 months for a single offence, up to 12 months for more than one offence or fine them.

Committal for sentence - Section 8 of the Magistrates' Courts Act 1980 ceases to apply if a case is committed for sentence. This means that the defendant has already pleaded guilty and submitted to a magistrates trial; no possibility of a jury trial now usually exists and therefore any subsequent reporting cannot affect the outcome of the trial.

Section 8C reporting restrictions - Section 8C, inserted into the 1980 Act in 2003 heavily restricts what can be reported about a pre-trial hearing. It is largely to defend cases which may at some stage look very unlikely to go to a jury but then do - further examination of all the evidence may force magistrates to conclude that a case is too serious for them to deal with after all during pre-trial hearing.

A pre-trial hearing may contain prior convictions and judgements about admissibility of evidence - all things a potential jury is not to know.

Section 8C effectively prevents the media from reporting any case in a magistrates court where the defendant has pleaded not guilty.

What should not be reported:

• Any rulings made in a pre-trial hearing on evidence
• points of law
• any order made to discharge or vary a ruling
• applications for such rulings
• any legal discussion that arises over the rulings

What can be reported:

• name of the court and magistrates names
• the names, ages, addresses and occupations of the defendants/witnesses
• the charge(s)
• names of solicitors/barristers involved
• if the case is adjourned and where and when it will resume
• bail arrangements
• whether legal aid was granted.

The maximum fine for breach of section 8C restrictions is £5,000. If the trial stays at the magistrates court, it can often be reported fully and no restrictions apply under the 1980 Act.

'Binding over' is a way of dealing with people accused of minor assault or crimes of a similar magnitude; it specifies that a person must pay a certain sum of money if they should 'breach the peace' again. They can agree to this in lieu of the case having to go to court. It can also be imposed without permission after a conviction if it is deemed necessary. The media must be careful not to suggest that this binding over is a conviction - it is a preventative measure and not a sentence.



Criminal cases in Crown courts

Automatic reporting restrictions apply at pre-trial and preparatory hearings at Crown courts.

The jury - 12 randomly selected members of the public, picked from the electoral register which are between the ages of 18 and 70. Some people are automatically disqualified from jury service, such as those due to turn up in court themselves, the mentally disordered or those who have been jailed in the last 10 years. The identities of jurors must never be publicised and the media organisation responsible would be committing contempt of court.

Types of crown court judges -

High Court judges - sit in High Court and Crown court. Referred to as Mr/Mrs Justice Doe. Wear red robes and wigs and only they have the power to try offences such as murder.

Circuit judges - referred to as Judge John/Jane Doe. Must have at least 10 years of experience as a barrister.

Recorders - part-time judges. Barristers who have held 'right of audience' i.e. right to represent their clients.
Referred to as the Recorder, Mr John/Jane Doe.


Arraignment - the defendant is asked to plead whether they are guilty or not guilty to every charge on the indictment. The media can only safely report the result of this if the defendant enters into a homogeneous plea for every charge - guilty or not guilty for each one. A mixture of pleas must not be reported and a judge may make an order banning reports on this to avoid the risk of prejudice.

Procedure in Crown court trials - the media are free to publish immediately everything what occurs in the court room provided the jury are present. The trial is underway as soon as the 12 jury members are 'sworn' in the jury box. Unanimous verdicts are usually required but if the jury retires from the courtroom for too long - 2  hours and 10 minutes - a majority verdict is accepted per charge. If the defendant is then convicted after this majority vote, it is fair to publish as it suggests that one or two people thought they were innocent - it's not defamatory; however, if they are acquitted by a 10-2 vote then it isn't a good idea to publish this as it implies the suspicion of guilt on behalf of the two jurors, which marks the reputation of the acquitted and they may have grounds to sue for libel.

Protocol for media to have prosecution material -

What should normally be released:

• maps and photographs, custody photos of the defendants, diagrams produced in court
• videos showing scenes of a crime
• videos of property seized e.e. weapons, drugs, stolen goods
• transcripts of interviews that have been read out in court
• videos/photos depicting reconstructions of the crime
• CCTV footage of the defendant

Might be released:

• CCTV footage of the defendant and the victim
• video/audio tapes of police interviews with defendants/victims/witnesses
• victim/witness statements.

Courts martial - All UK servicemen are subject to UK law no matter where they are in the world. Justice is done through the courts martial system. A civilian judge advocate will join three to seven service personnel to try the defendant. Courts martial are generally open to the public and media and therefore safe to report.

Juveniles

Most young people will be prosecuted for offences in a youth court. Automatic reporting restrictions work to restrict what can be reported about these cases, and the defendant and witnesses will almost never be identified to protect them.  ASBO orders and breaches of them can usually be reported fully along with identifying information about the offender where the court sees fit.

Very serious crimes will still be dealt with by the Crown court, where the court can rule that the juvenile's identity must be protected. The youth court will be the venue for the preliminary hearing and decisions about bail, and just like adult cases Section 8 reporting restrictions apply.

Age of criminal responsibility - a child under the age of ten is deemed to not know right from wrong and so it is ruled as unfair to make them liable for any offence they may commit. From the ages of 10 - 18 a young person may be tried in the youth court.

Power of the youth court to sentence - categorisation of charges, i.e. indictable-only etc only appears in adult cases. A youth court has limited sentencing power, so in a case of murder it would have to move to the Crown. The powers it does have are those of community punishment, fines and orders for the offender to pay compensation to their victims.

A 'referral order', which will usually be given on a first offence, involves unpaid community work, promises to not re-offend and frequent contact with trained youth workers.

The court can also make parenting orders, where the parents must attend counselling sessions to order to help their child avoid further involvement in the things or patterns of behaviour that saw them charged in the first place.

Automatic restrictions on identifying juveniles in youth court cases - specified under section 49 of the Children and Young Persons Act 1933 (amended by Criminal Justice and Public Order Act 1994) reports of youth court proceedings must not reveal:

• the name
• address
• school
• any particulars that could lead to their identification
• picture

of any juvenile concerned in the proceedings.

Jigsaw identification - Jigsaw identification is the term used for 'accidental' identification of any person who had been granted anonymity under law, not just juveniles. It occurs when the combined information published in two or more publications could lead to a member of the public figuring out who the person is. In order to avoid jigsaw identification, newsrooms need to have the same approach when reporting a case.

ASBO's - can be made against an adult, or a juvenile provided they have reached the age of criminal responsibility. It seeks to work as a preventative measure. Along with the introduction of the ASBO, amendments were made to the 1998 Act to encourage media identification of the offender, once the ABSO has been given. Usual restrictions apply to the actual hearings and court case, which is conducted in the magistrates court. The juvenile will not be able to sue for libel whether or not an ASBO is actually given.

Breach of an ABSO is a criminal offence and the usual anonymity granted under the 1933 Act does not apply here, therefore the media can usually identify them.