The Law Commission has recently recommended the introduction of an online database of “postponement” orders. What are its chances of success?
The legal framework around contempt of court puts the onus on court reporters to ascertain the terms of relevant reporting restriction orders in given criminal cases. They are expected to be familiar with the automatic restrictions, and to find out details of the discretionary postponement orders in place – orders which prevent publication of material until a set date, or the end of specified proceedings, under s 4(2) of the Contempt of Court Act 1981. However, the latter can present difficulties.
Media representatives responding to the Law Commission’s consultation on contempt said that they struggled to obtain information about whether an order has been made and its terms “because there is no formal system for notifying the media of their existence”. As a BBC response suggested, the current system for communicating orders is “ad hoc, inconsistent from court to court, and often lacks clarity”.
An online list of orders
Inspired by the Scottish Courts’ simple online list which records cases with active contempt orders, the Law Commission ran a successful pilot in seven crown courts – including England’s busiest, the Central Criminal Court. This data collection exercise produced a list of cases with active postponement orders.
The administrative burden was far from onerous despite the concerns of some of the consultation respondents. In fact, the Law Commission, recommending the introduction of such a list for England and Wales, considered that once it was set up, administration would only take three to four hours per month for the designated person or body. Systems are already in place for internally recording these types of orders so sending them for publication is a straightforward task for individual courts.
The terms of orders
This list would be a useful tool for researchers and journalists but does not resolve the problem of discovering the terms of orders. To this end, the Law Commission also recommended the creation of a closed database: users would pay a small fee to access the details of restrictions.
Clearly if this database was completely open it would undermine the purpose of the orders it was designed to protect. The Law Commission proposal does not, however, consider other key operational questions such as how much; and who would be allowed access: people who present themselves as professional media, or any interested member of the public?
The cost could be the first stumbling point and, indeed, the headline observation in the limited industry coverage of the Commission’s report. A similar scheme had fallen by the wayside by 2010, after a commercial contractor reportedly suggested an “eye-watering” cost to media organisations. To avoid this happening again, it would be advisable for the Ministry of Justice digital services team to develop the list and database in-house, cheaply and efficiently.
The question of membership is a curious one, and one that is dealt with inadequately in recent procedural developments around courts access.
The media vs the public
Procedural guidelines for tweeting from court give “a representative of the media or a legal commentator” the right to tweet without making an application, whereas a member of the public must seek special permission. Similarly, the Judicial College’s 2014 guidance on reporting restrictions in the criminal courts suggests that “court staff should respond positively to media organisations’ requests for assistance in relation to the existence or terms of reporting restriction orders” (my emphasis).
However, Criminal Practice Direction 16.B.6 and 16.B.7 directs that a copy of the order “should be provided to any person known to have an interest in reporting the proceedings”. This ambiguity around the treatment of media and ordinary members of the public should be addressed, with view to introducing a consistent approach.
The Law Commission’s report also raises another interesting legal uncertainty which deserves further attention: it is unclear, it suggests, whether a publisher’s knowledge of a reporting restriction is required to establish contempt. What is the “mental element” required for liability?
The preferred approach seems to be that “in addition to knowledge of the order, it is necessary to intend to prejudice the administration of justice” but the position lacks clarity. While this uncertainty is “unfortunate”, the Law Commission suggests that its list would make the system fairer, and also provide a means of establishing recklessness (it would be possible to see whether an order appeared on the list or not at the time of the breach).
If so, it would be essential that the courts kept such a list up to date and accurate.
Although the Law Commission only recommends a list for s 4(2) orders, it suggests that if such a list is set up, it could be used as a pilot for a “more ambitious system for publicising all reporting restrictions”.
What are the chances of the scheme’s implementation? The report mentions that HMCTS is currently looking at the issue as part of its wider redevelopment of IT systems. However, that bigger project is likely to move slowly: it would be sensible to move the Law Commission’s plan along speedily and use it as a testing ground for a wider reporting restrictions list and database.
Administrative concerns about the reliability of the list and database, as mentioned in the Law Commission’s report, should be overcome as well: if journalists and members of the public are obliged by law to adhere to stringent orders, the judiciary and courts service should also have a responsibility to provide the necessary information.
There is also the possibility that a lack of momentum and interest may thwart or delay the scheme – a pity if so. There was a fairly muted response to the report, which was published in March 2014, with limited mainstream media pick up. That is not due to a lack of interest in contempt: conversely, the proposed role for the Attorney General in directing the removal of news archive material during courts proceedings, as set out in the Criminal Justice and Courts Bill 2013–14, is generating critical coverage.
Similar schemes have been discussed elsewhere: a national public register has been proposed in Australia, although Australia’s Right To Know coalition would prefer a “publicly accessible register containing information that does not breach the order with additional information that is only accessible by authorised media representatives” – not dissimilar from the Law Commission’s two-tier model. The concern is that a bare bones public register would have very little practical purpose, and that it is the details of the full order that are crucial.
Some information is justifiably restricted in the courts process but as the former Master of the Rolls, Lord Neuberger, has argued, open justice must “yield no more than strictly necessary to secure the achievement of the proper administration of justice ”¦ Where it goes beyond what is strictly necessary then we run the risk that the courts are no longer open to proper scrutiny, that their role in supporting democracy and the rule of law is undermined”.
The restriction of information must also be subject to this “proper scrutiny”; legal researchers and journalists must be able to monitor whether restrictions are “strictly necessary” and in accordance with legal procedural guidelines and statutory provisions. Without the development of efficient systems to record restrictions, it is difficult to see how they can perform this role.
The Law Commission’s scheme would perform a dual purpose in upholding the principle of open justice: first, it would enable journalists and other types of court reporters proper and fair access to the provisions to which they are expected to abide; and second, it would allow researchers, journalists and other relevant parties to monitor the process and product of restriction.
Contempt of Court (2): Court Reporting (Law Com No 344).
Judith Townend is a lecturer in journalism at City University London and research associate at University of Westminster. She was invited to discuss the Law Commission’s proposals ahead of the publication of its report and would welcome comments and suggestions to inform her future research in this area.