Law 2: Privilege and Court Reporting

My notes from first year on court reporting.

Flick's Absolute Privilege Check-list

This is a quick and handy way of finding out if you have absolute privilege. (Spoiler: you don't.)

If the answer to all of the above is no, then you do not have absolute privilege. And that's an awful shame, because people who do have absolute privilege can say whatever they like with impunity - they cannot be sued for defamation. Stuff said under absolute privilege can even have malice - a prosecution lawyer can call someone a murderer even if they don't believe it to be true because it's their job to do so, so they have to be protected.

If a judge insinuates that you're a loose woman while you wait at a bus stop then that's a different matter and pretty rude too, but if he/she's sitting in on a court case that you're implicated in, then he/she can slag you off until he/she's blue in the face.

But you're probably not a judge, so you can't do that. Instead, journalists have qualified privilege - it's a way of distilling whatever is said under absolute privilege in to some news as long as the report of what was said is fast, accurate and fair. That is to say that it's good accurate journalism and that it's also being published in the very next available edition.

Court reports enjoy a slightly elevated bit of legal protection, so long as they are a 'a fair and accurate report of judicial proceedings held in public within the United Kingdom, published contemporaneously.'

This is vital because much of what is said in court is, understandably, fairly slanderous. If newspapers couldn't report on it without fear of being sued then justice wouldn't be seen to be done and that's part of the duties of both the press and the criminal justice system.

To recap:

You do not have absolute privilege.
You have qualified privilege when you're contemporaneously reporting the words of someone who does have absolute privilege - a judge, a barrister, an MP.

Your qualified privilege extends to certain other things too - council meetings, for example. If one councillor accuses another of fraud, then you can report that, but it's subject to refutation - you have to seek comment from the damaged party.

'Subject to refutation' is a practice that we employ at WINOL all the time. A more simple way of explaining it is simply balance. If your report is headed with something sensational but then you also publish the fact that the councillor denies the allegations, then you're probably safe.

Contempt of court

Contempt of court is a strict liability offence. It carries a fine of up to £75,000. It serves to limit a juries' exposure to prejudicial material in the hope of securing a fair trial. Publishing anything about the jurors in addition to prejudicial material is also contempt of court.

Crime and court reporting

Crime and court reporting sound similar but in terms of the law they are distinct.

There are different stages between a crime being committed and someone being sent to jail for it. The scope for interesting and colourful reporting tends to book-ended - it dries up in the middle as the trial is happening because of the very real dangers of publishing prejudicial information which will lead to a contempt of court charge.

Stage 1 - The crime is reported, police are appealing for information. Everything is fair game.
Stage 2 - Police make an arrest or say a person is 'helping with enquiries'. The case becomes active at this point, which means you need to be careful. Take advice before publishing anything, especially anything pertaining to the description of suspects. A victim interview recorded at Stage 1 where she describes the suspect as a 'monster' and describes his height, appearance etc cannot be used again until the case is closed.
Stage 3 - Police lay charges. Only incontestable facts can be reported. Community 'colour' angles can be reported - i.e. that a neighbour is shocked, footage of people laying flowers by the scene of the crime, but that's about it.
Stage 4 - The initial magistrates court hearing. You're restricted to reporting on seven points only, namely:

Defendants name, age, address, occupation
Charge(s)
Bail arrangements
Whether legal aid was offered
Date and place where court will be adjourned to
Name of court
Name of lawyers



Very recently, The Daily Mail and The Mirror were fined £10,000 for contempt of court over their Levi Bellfield coverage. The way and timing with which they reporting certain details were ruled as being potentially prejudicial for a jury and so those two newspapers were fined.

The concept of prejudice is absolutely key here. If you put prejudicial information in the public domain, it could lead to unfairness at a later stage. If a jury member reads an emotive interview with a witness in which she gives a description similar to the defendant they've seen at court every day for the past week, then there is the danger that they will be swayed.

Fairly, in my humble opinion, the law is designed to come down heavily on the publisher in this instance. It is part of our duty as journalists to recognise this risk - we are supposed to work in the public interest, not be complicit to a potential miscarriage of justice.

It's nice to think that the Court want to punish you for prejudicing the jury just in the interest of pure justice, but it's not only a moral decision - it costs a hell of a lot of money to re-try a case and the fine will be in an attempt to recoup some of those losses. In addition to the fine they will also make you pay costs, as the Sunday Mirror found out.

It's our job as journalists when writing our court reports to sort out contested facts vs uncontested facts - it's the contested ones are possibly prejudicial. The contested facts are exactly that - they will be contested in court, and so they cannot be published. The mere virtue of the fact that they have been published could lead someone to think that it's a solid fact, and again, could be incredibly prejudicial in a trial. The exact details are fought about over weeks, sometimes years, and they cannot be reported on while the case is active.

That little detail that you reported could later be entirely disproven in court.

Never forget the presumption of innocence. The accused are innocent until the prosecution manages to prove them, in the minds of the jury, guilty beyond all reasonable doubt.

Restrictions regarding young people in court

According to Section 49 of the Children and Young Persons Act 1933, reports of youth court proceedings must not reveal:

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

Section 39 of the same Act says that under 18s involved in adult court proceedings must not be identified either.