McNae’s essential law for journalists – Chapters 2-7

Chapter 2: The Editor’s Code of Practice

The Press Complaints Commission (PCC) – adjudicates complaints against editors and journalists and requires editors to publish adverse adjudications.

The PCC was created by the industry to self-regulate and raise journalistic standards by enforcing the Editor’s Code of Practice.  However after having been criticised for failing to recognise or properly investigate the extent of hacking, it is likely to be reformed or replaced as a result of the official inquiry into press ethics.

The Editors’ Code of Practice sets standards for journalists working for newspapers, magazines and free-standing editorial websites. It has clauses to uphold accuracy and to protect people’s privacy. The code permits undercover reporting, but only if justified by special, ‘public interest’ factors.

Chapter 3: Broadcast regulation

The BBC is the biggest broadcasting organisation in the world, with eight national TV channels, ten national radio stations, 40 local radio stations, regional programming and its website. The legal bases which support its existence are its Royal Charter and the Agreement with Parliament, which are renewed every ten years.

There must be ‘due accuracy’ and ‘due impartiality’ in all broadcast news. Broadcast journalism is generally regulated by the Office of Communications (Ofcom), except for the BBC whose output can only be considered by the BBC itself. However most broadcast organisations must comply with the Ofcom Broadcasting Code, which requires them to avoid harm and offence, to be fair and to protect people’s privacy. Ofcom considers complaints against broadcasters, and has a statutory power to compel them to air its adjudications. It can also fine them for the worst transgressions of the code, and can close a commercial broadcaster which persistently or recklessly disregards the code.

Chapter 4: Crime: media coverage prior to any court case

When covering crime stories, there are contempt of court dangers for the media, as an arrest, an oral charge, service of a written charge or the issue of a summons or an arrest warrant makes a case ‘active’ under the Contempt of Court Act 1981. A journalist can run the risk of libel if a suggestion is published, prior to any charge, that a suspect is guilty of a crime. However if the police or another governmental agency, in an official statement, identifies a person as a suspect, it is safe to report the statement.

Chapter 5: Crimes: categories and definitions

Categories of criminal offence: criminal charges are grouped into three categories: indictable-only, either-way and summary.

(1)  Indictable-only offences: include the most serious crimes (murder, rape, and robbery). Such cases are initially processed by a magistrates court. However, the maximum jail sentence, which magistrates can impose, is 6 months therefore they progress quickly to a Crown court. The term ‘indictable-only’ derives from ‘the indictment’, the document used at a Crown court to record the charge(s).

(2)  Either-way offences: include theft, sexual assault and assault causing grievous bodily harm. Such cases can either be dealt with at a Crown court or by magistrates, thus the term ‘either-way’.

(Confusingly, indictable-only and either-way charges are sometimes referred to collectively as ‘indictable’ charges, because both categories share the possibility of jury trial at a Crown court).

(3)  Summary offences: comparatively minor offences, including common assault, drunkenness and speeding offences.  Such cases are dealt with in magistrates courts, except in some cases in which a defendant faces both summary and either-way or indictable charges arising from the same event, in which instance a Crown court may deal with all of them. Those charged with a summary offence have no right for it to be tried by jury. Therefore, ‘summary proceedings’ means ‘proceedings in a magistrates court’, with the term ‘summary’ indicating the relative speed of this process.

Defining criminality

There are two elements in most crimes:

  • an act which is potentially criminal- which lawyers refer to as the actus reus; and
  • a guilty mind– referred to as the mens rea, which means that such an act was carried out, or planned or attempted, with guilty intent –  that the perpetrator knew he/she was acting, or intending to act, in a way which is morally wrong.

A prosecutor has to prove both elements. In the crime of murder, the actus reus is that of unlawfully killing someone, and the mens rea is that the act was done with ‘malice aforethought’. If there is no such malice, a killing may be a lesser crime (such as manslaughter).

Strict liability

In Law, strict liability removes or strictly limits any legal defences to the charge. Strict liability can be seen as a practical, societal solution to deter dangerous or anti-social conduct for which, in many cases, it would be impossible to prove that a guilty mind existed.

This concept is important for journalists, not least because some criminal offences arising from publishing material are of strict liability, for example, if matter is published which breaches the Contempt of Court At 1981. If an offence is of ‘strict liability’, the defendant can be convicted even if he/she had no clear ‘intent’ to do wrong.

Crimes against people:

(1)  Murder

(2)  Manslaughter

(3)  Corporate manslaughter

(4)  Causing or allowing the death of a child or vulnerable adult

(5)  Infanticide

(6)  Assault, common assault, battery, assault by beating

(7)  Assault occasioning actual bodily harm (ABH)

(8)  Wounding or inflicting grievous bodily harm (GBH)

(9)  Wounding ‘with intent’/inflicting grievous bodily harm ‘with intent’

(10) Rape

Crimes against property or involving gain:

(1)  Theft

(2)  Robbery

(3)  Handling

(4)  Burglary

(5)  Aggravated burglary

(6)  Fraud

(7)  Blackmail

(8)  Taking a vehicle without authority

(9)  Aggravated vehicle taking

Motoring crimes:

(1)  Driving under the influence of drink or drugs

(2)  Driving with excess alcohol

(3)  Causing death by careless driving when under the influence of drink or drugs

Other:

(1)  Perjury: after taking an oath as a witness to tell the truth in court – knowingly giving false evidence, or in an affidavit, or to a tribunal. Indictable-only.

(2)  Perverting the course of justice: concealing evidence, or giving false information to the police. Indictable – only.

(3)  Wasting police time: knowingly making a false report that a crime has occurred or falsely claiming to have information material to an investigation.

(4)  Kerb-crawling (‘soliciting’): seeking the services of a prostitute.

Chapter 6: Magistrates courts: summary cases

Magistrates courts deal with nearly 95 percent of all criminal cases, and send or commit the rest (the most serious) to Crown courts.

Magistrates still use the title of ‘justice of the peace’ and almost all are volunteers and part time (lay magistrates). Recruitment tries to ensure that they are chosen from a range of social backgrounds. There are around 30,000 lay magistrates who are trained and paid expenses. A trial in a magistrates court is known as a summary trial. The term ‘summary’ reflects the quick and relatively informal justice carried out by the magistrates, whereas in the higher courts where they have slower processes due to the more serious and complex cases. Magistrates are advised on law by a justices’ clerk or by one of his/her staff of qualified lawyers, who sits infront of them in court.

District judges, previously officially known as a stipendiary magistrate, try cases on his/her own. They are appointed after at least seven years’ experience as a lawyer.

The taking of pleas: Defendants facing summary charges:

  • If they plead guilty, they are convicted.
  • If they plead not guilty the case will more likely than not be adjourned for summary trial. When adjourned the magistrates must decide (unless the offence is a minor one) whether to grant bail.

Defendants who deny either-way charges can ask magistrates to try them.

Bail is the system by which a court grants a defendant his/her liberty until the case’s next hearing, however, on occasion, the court may impose subsequent conditions.

The Bail Act 1976 has a general rule that a defendant must be granted unless:

  • The court is satisfied there are substantial grounds for believing that if bail is granted

–       he/she will abscond, or

–       commit another offence, or

–       obstruct the course of justice (e.g. interfering with witnesses);

  • The court decides the defendant should be kept in prison for his/her own protection;
  • The defendant is alleged to have committed an offence when he/she was on bail granted in an earlier case;
  • The defendant is already serving a jail sentence; or
  • There is insufficient information to decide on bail.

A court must always give reasons for refusing bail. A defendant charged with murder can only be given bail by a Crown court judge.

Evidence and previous convictions aired:

When deciding on bail, the court is told of any relevant previous conviction(s) the defendant has, and some details of prosecution evidence about the charge(s) faced. A defence lawyer arguing for bail may outline defence evidence.

Surety:

In some cases, a court will insist that the defendant has a surety before bail is granted. It is usually granted to someone like a relative or friend of the defendant, who guarantees the defendant will ‘surrender’ to bail. The surety agrees to forfeit a sum of money, fixed by the court, if the defendant absconds. If the defendant absconds, a surety can be jailed if he/she does not pay that sum.

Failure to surrender:

If a defendant fails to surrender to bail, it is a criminal offence, and will more than likely result in the court issuing an arrest warrant for him/her, authorising police to arrest and bring him/her to court.

Appeals:

If magistrates refuse bail, the defendant can apply to a judge at Crown court for bail. The prosecution, if the alleged offence is one punishable by jail, can, by appealing to a Crown court judge, challenge a magistrates court’s decision to grant bail.

Reporting restrictions for pre-trial hearings:

When a denied charge is heading for a summary trial, magistrates may hold at least one pre-trial hearing to rule on any dispute between prosecution and defence on admissibility of evidence or points of law, and to decide on bail.

Section 8C of the Magistrates’ Courts Act 1980 has automatic restrictions which limit contemporaneous reporting of these pre-trial hearings. It automatically relates to cases at magistrates courts in which a defendant pleads not guilty.

They ban the publication of:

  • Any rulings by magistrates in pre-trial hearings on admissibility of evidence and points of law, and any order made in them to discharge or vary such a ruling;
  • The proceedings, in those hearings, concerning applications for such rulings and for such orders, including legal argument and discussion about whether such a ruling or order should be made.

While the restrictions are in force, the media can only report seven categories of information from the pre-trial proceedings. These are (in simplified form):

  • the name of the court and the magistrates’ names;
  • the names, ages, home addresses and occupations of the defendant(s) and witnesses;
  • the charge(s) in full or summarised;
  • the names of solicitors and barristers in the proceedings;
  • if the case is adjourned, the date and place to which it is adjourned;
  • arrangements as to bail;
  • whether legal aid was granted.

In relation to ‘arrangements as to bail’, it will be safe to report, unless the court orders otherwise, whether bail was granted or refused, and, if it was granted, any bail conditions and surety arrangement. However the media should not report in most instances why the prosecution opposed bail or reasons the magistrates gave for refusing it as such information could be prejudicial.

A media report of a pre-trial hearing can safely include neutral, non-prejudicial, descriptions of the court scene and neutral background information.

At the end of a trial, a media organisation could publish a report of evidence ruled inadmissible some weeks or months previously in a pre-trial hearing, or of any ruling made in it.

Liability for breach of the section 8C restrictions

A proprietor, editor or publisher can be prosecuted for breach of these restrictions. The maximum fine is currently £5,000.

Procedure in summary trials:

A trial at a magistrates court can usually be reported fully as it occurs. The usual procedure at summary trials is:

  • The prosecutor makes an opening speech, describing the alleged crime.
  • Witnesses testify, after swearing an oath or affirming that their evidence is true.
  • Prosecution witnesses are called first. Each is asked questions by the prosecutor to elicit their evidence-in-chief. The defence can cross-examine them. The prosecution may then re-examine them.
  • When prosecution evidence ends, the defence may submit, for any or all charges faced, that there is no case to answer – that is, that the prosecution cannot meet the standard of proof required.
  • If the magistrates agree with this submission, they will dismiss the charge. Otherwise, or if there is no such submission, the trial continues.
  • Defence witnesses are then called. These may include the defendant, though he/she cannot be compelled to testify.
  • Defence witnesses are questioned to elicit their evidence-in-chief. They can be cross-examined by the prosecutor, and then re-examined by the defence.
  • When the court has heard all witnesses, the defence may address the court in a closing speech, arguing how facts and law should be interpreted. Either side can address the court twice in total, in opening or closing speeches. The defence has the right to make the last speech.
  • If the magistrates feel a charge is not proved, they will acquit the defendant.
  • If they find him/her guilty on any charge, he/she is convicted of it.

The magistrates will then sentence the defendant, or adjourn to sentence at a later date.

Hostile witnesses and leading questions

Usually, to ensure witnesses tell of events in their own words, leading questions are not allowed to be put to them when they give evidence-in-chief, however:

  • A witness who refuses to testify or retracts a statement made to investigators can be rules by the court to be ‘a hostile witness’ – that is, someone who can be asked leading questions by the side which calls him/her.
  • A leading question is one which suggests what answer is expected.

A defendant’s ‘bad character’:

Prosecutors in trials cannot refer to a defendant’s previous conviction(s) because – to comply with the principle of the presumption of innocence – the focus is on evidence for the charge(s) being tried, not any past crime. However evidence of previous misconduct can be introduced to correct a false impression given by the defendant, or as evidence that he/she follows a distinctive method when committing offences of the kind with which he/she is charged, or if the defendant’s evidence has attacked another person’s character. 

Sentencing by magistrates

In sentencing hearings for an admitted charge, the prosecution gives magistrates details of the crime. If there is dispute about the facts of an admitted offence the magistrates must accept the defence version unless the prosecution proves its version in a Newton hearing. Otherwise, defendants who admit an offence and those convicted at trial are sentenced in the same way.

If the crime inflicted suffering on a victim, the court will consider any written statement the victim provides. Before sentence is passed, the defendant’s lawyer can make a speech of mitigation, citing any extenuating circumstances while asking for leniency.

A defendant may also ask for other offences to be ‘taken into consideration’. These offences should not be confused with previous convictions (crimes which the defendant admits although he/she has not been charged with them).

The defendant brings these crimes to the court’s attention to be sentenced for them as well as for the charged offence(s). By admitting uncharged crimes (such as burglaries) the defendant removes the possibility of being prosecuted for them in the future, giving them the opportunity of a fresh start. Magistrates may also consider a ‘pre-sentence report’ about the defendant’s background, prepared by a probation officer.

Jail sentences

Magistrates can jail a defendant for up to six months for a single offence, and for up to 12 months for more than one offence if they decide that jail terms should run consecutively, depending on penalties specified for an offence.

  • Consecutive sentences are two or more jail terms ordered by the court to run one after the other, imposed when the defendant is convicted of more than one crime. If a sentence of six months is made consecutive to one of three months, the defendant is sentenced overall to nine months.
  • Concurrent sentences are those where the defendant is sentenced overall only for the length of the longest sentence imposed. In the above example this would be six months.

Courts can give a suspended sentence to a defendant deserving leniency.

  • If a defendant is given a suspended sentence, he/she does not have to go to jail unless he/she commits a further offence, for which a jail sentence could be imposed, during the period for which the sentence is suspended. 

Committal for sentence

Magistrates who convict a defendant of an either-way charge can commit him/her for sentence to the Crown court if they believe, because of what they are told of the case, and/or about any previous conviction(s), that their punishment powers are insufficient. A Crown court judge then has the power to impose longer jail terms.

Other types of sentences:

  • A community order – whereby the court orders a defendant to obey one or more requirements, which could include:

–       unpaid work in the community under a probation officer’s direction;

–       a curfew, with a requirement that the defendant wears an electronic ‘tag’ to monitor whether he/she obeys it;

–       receiving treatment for drug or alcohol dependency;

–       going to an attendance centre for a specified number of hours for group sessions to reflect on his/her misbehavior.

  • A conditional discharge – whereby the court has not immediately imposed or specified punishment, but states that if the defendant commits any other offence within a period laid down by the court, for example, a year – he/she is liable to be punished for the first offence as well as for the subsequent conviction.
  • An absolute discharge – whereby the court feels that no punishment, other than the fact of the conviction, is necessary.

Binding over and restraining orders

When binding over, the court specifies a sum of money which the person must pay if he/she breaches the peace. The order is a preventative, civil law measure, not a punishment, and is not a conviction, and it is therefore important that it should not be reported as such. A court may also impose a restraining order on a defendant, even one acquitted at trial, to protect another person from harassment.

Appeal routes from magistrates courts

The defence and prosecution may contest a ruling by magistrates by appealing to the High Court on a point of law, by means of the ‘case stated’ procedure. The defence can also ask the High Court for a judicial review. A defendant appealing against a conviction by magistrates or the severity of the sentence imposed appeals to a Crown court.

Chapter 7: Magistrates courts: the most serious criminal cases

Recap of major points:

  • An indictable-only case will be ‘sent for trial’ to the Crown court.
  • A denied either-way case can be tried by magistrates or by a jury. The defendant can choose trial by jury.
  • Reporting restrictions under section 8 of the Magistrates’ Courts Act 1980 automatically apply to media reports of all preliminary hearings in the magistrates court if the case retains potential for jury trial.
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About brackenstockley

Contributor to the JusticeGap and WINOL. Currently studying journalism at the University of Winchester (Year Three).
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