Law Review: Responsible reporting – Open justice and the need for restraint – MPs want to ban naming of suspects

The UKSC blog addresses the issue of responsible reporting which I commented on the other day.  It is a cause for concern.

The UKSC Blog: Coverage of Yemshaw judgment raises questions of responsible legal reporting

MPs want to ban the naming of suspects to avoid media feeding frenzies

The Guardian: Bad press behaviour leads inevitably to politicians pushing for laws to curb press freedom. The flouting of the law of contempt (in the Joanna Yeates murder case, for example) has had an inevitable result.

As the attorney-general stood back from the last feeding frenzy of the tabloid and other sharks in the Yeates case – but now supports this action by MPs,  I suppose the best that can be said is,  better late than never.  Freedom of speech comes at a price where issues of a fair trial are concerned.  I would rather have the fair trial.  Comment (and newspaper and media profits will just have to wait until the jury or magistrates apply due process.

An interesting clarification of open justice and the need for restraint from the Court of Appeal in JIH – and – NEWS GROUP NEWSPAPERS LIMITED [2011] EWCA Civ 42

The Master of The Rolls

Open justice and the need for restraint

19. The cardinal importance of open justice is demonstrated by what is stated in Article 6 of the Convention. But it has long been a feature of the common law. It was famously articulated in the speeches in Scott v Scott [1913] AC 417 – see particularly at [1913] AC 417, 438, 463 and 477, per Lord Haldane LC, Lord Atkinson, and Lord Shaw of Dunfermline respectively. The point was perhaps most pithily made by Lord Atkinson when he said “in public trial is to be found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect.” For a more recent affirmation of the principle, see R(Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 65, paras 38-42, per Lord Judge CJ.

20. However, as with almost all fundamental principles, the open justice rule is not absolute: as is clear from Article 6, there will be individual cases, even types of cases, where it has to be qualified. In a case involving the grant of an injunction to restrain the publication of allegedly private information, it is, as I have indicated, rightly common ground that, where the court concludes that it is right to grant an injunction (whether on an interim or final basis) restraining the publication of private information, the court may then have to consider how far it is necessary to impose restrictions on the reporting of the proceedings in order not to deprive the injunction of its effect.

21. In a case such as this, where the protection sought by the claimant is an anonymity order or other restraint on publication of details of a case which are normally in the public domain, certain principles were identified by the Judge, and which, together with principles contained in valuable written observations to which I have referred, I would summarise as follows:

(1) The general rule is that the names of the parties to an action are included in orders and judgments of the court.

(2) There is no general exception for cases where private matters are in issue.

(3) An order for anonymity or any other order restraining the publication of the normally reportable details of a case is a derogation from the principle of open justice and an interference with the Article 10 rights of the public at large.

(4) Accordingly, where the court is asked to make any such order, it should only do so after closely scrutinising the application, and considering whether a degree of restraint on publication is necessary, and, if it is, whether there is any less restrictive or more acceptable alternative than that which is sought.

(5) Where the court is asked to restrain the publication of the names of the parties and/or the subject matter of the claim, on the ground that such restraint is necessary under Article 8, the question is whether there is sufficient general, public interest in publishing a report of the proceedings which identifies a party and/or the normally reportable details to justify any resulting curtailment of his right and his family’s right to respect for their private and family life.

(6) On any such application, no special treatment should be accorded to public figures or celebrities: in principle, they are entitled to the same protection as others, no more and no less.

(7) An order for anonymity or for reporting restrictions should not be made simply because the parties consent: parties cannot waive the rights of the public.

(8) An anonymity order or any other order restraining publication made by a Judge at an interlocutory stage of an injunction application does not last for the duration of the proceedings but must be reviewed at the return date.

(9) Whether or not an anonymity order or an order restraining publication of normally reportable details is made, then, at least where a judgment is or would normally be given, a publicly available judgment should normally be given, and a copy of the consequential court order should also be publicly available, although some editing of the judgment or order may be necessary.

(10) Notice of any hearing should be given to the defendant unless there is a good reason not to do so, in which case the court should be told of the absence of notice and the reason for it, and should be satisfied that the reason is a good one.

One thought on “Law Review: Responsible reporting – Open justice and the need for restraint – MPs want to ban naming of suspects

  1. Pingback: 3 Old Men and a few other matters….. « Charon QC

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>