Media Law Update (28 Jan): Reporting crime and courts, prejudice and contempt

Personal commentary on the risks surrounding the reporting of crime and courts:

In order to be a successful journalist it is critical to understand the key facts surrounding the difference between criminal and civil law, the court structure, sources of law, free press, the people and above all restrictions. One of the most important skills to be learnt from this topic is learning how to recognise risk and then applying this knowledge to day-to-day reporting.

The main focus of this week’s blog is the reporting of crime and court stories, looking at how coverage of a crime story changes as it gets nearer to court. Identifying the risks involved in such reporting is getting increasingly harder as deadlines tighten and demand is growing in journalistic ability to produce lawfully sound pieces of journalism in a short amount of time.

The UK is a ‘free press‘ society (democratic) with freedom of expression. It has a hierarchy of courts, allowing a decision made by a lower court to be challenged by appeal to a higher court. The decisions made by higher courts are known as precedents. As part of the European Union, EU treaties and other EU law are part of UK law. The Council of Europe promotes individual freedom, political liberty and the rule of law. The council’s work has led to both The European Convention for protection of Human Rights and Fundamental Freedoms AND the European Court of Human Rights which guarantees the right to freedom of expression. The Human Rights Act 1998 came into force on the 2nd October 2000 and puts the Convention into UK law, increasing its influence on UK courts.

A key danger area for journalists is libel. When publishing an article, there could be libel risks if a suggestion is published, prior to any charge, that a suspect is guilty of a crime, if what is published identifies the suspect. A notable example of this is when the media were reporting on the Joanna Yeates murder case in 2010 and in doing so ‘vilified’ her landlord Christopher Jefferies:

“In 2o11, eight national newspapers made public apologies to Christopher Jefferies for the libellous allegations made against him following the murder of Joanna Yeates. In addition: The Sun, Daily Mirror, Sunday Mirror, Daily Record, Daily Mail, Daily Star, The Scotsman and Daily Express agreed to pay him substantial libel damages. According to a Guardian article Jefferies appeared at the Leveson inquiry into media ethics, and said he was shocked at how “casually inaccurate” some reporting was, such as a claim that floorboards were being pulled up in a flat with solid floors.”

In 2014, Peter Morgan attempted to solidify Jefferies exoneration with ‘The Lost Honour of Christopher Jefferies’, a two-and-a-half hour, two-part drama (on ITV). It is interesting to note that while including the names of the newspapers that libelled Jefferies, the television drama lets its own medium off comparatively sparingly, with only one reference to the screen coverage being “almost as bad” as the papers.

In the News:

Earlier this month, a government agent had to intervene after a reporter was barred from taking notes in a magistrates’ court. In an article published by Press Gazette, the reporter explains how journalist, Michael Cox, from the Yellow Advertiser, was not given journalistic access to the court for nearly an hour on the morning of the 9th January 2015. A HMCTS press officer contacted the court after being called by Advertiser news editor, Steve Neale. The refusal was described as a “genuine mistake”. Neale told the Press Gazette that the magistrates’ courts and the crown courts are becoming increasingly difficult to cover for a variety of reasons and that the publication has experienced incidents of reporters being refused access to the courts before because they’ve not got ID, which is irrelevant due to the fact that a court is public.

This is a great example of why it is crucial to know your rights as a journalist so that you can make sure that you can confidently argue your rights to report on crime and the courts.

To round up:

If the police or another governmental agency, in an official statement, identifies a person as a suspect, it is safe to report the statement but it is important to remember that some police informants are protected by anonymity orders. Journalists must always remember to recognise risk and if in doubt refer up to their editor for guidance.

Law Notes: Reporting Crime and Courts

Prejudice and contempt are the two big danger areas:

  1.  Prejudice is publishing facts or allegations about a defendant or case, before or during a trial, which could affect its fairness, e.g. by influencing jurors or potential jurors.
  2.  Contempt signifies a breach of the rules of crime and court reporting. The strict liability rule says it is a contempt to publish material which creates ‘a substantial risk’ of serious prejudice to active proceedings.

Writing a report

Be careful to notice things change between arrest and charge, and court appearance. Use only facts which will be uncontested in any trial, so it is safe.

When a case becomes legally active there a definite prospect of a person facing trial and therefore it is important to know what these are:

  • When police make an arrest
  • When an arrest warrant is issued
  • A summons is issued by magistrates
  • A person has been charged

Sometimes police can be uncommunicative to the press for operational reasons which is something to bear in mind in fast-moving cases. What you can broadcast at the top of one hour may change to the next.

Limits on detention without charge

  • Police normally have max 24 hours to question. Depending on circumstances this period can run from the time of the arrest or from when the suspect was brought into the police station
  • Can be extended by 12 hours by senior officer if it is an indictable offence
  • Magistrates can then extend for further 36 hours
  • Detention cannot exceed 96 hours except if people are suspected of terrorism can be detained 14 days without charge
  • Terror suspects can be held for 28 days

Police bail is where police want more time to complete inquiries a suspect may be given police bail to return to a police station later.

Arrests

Under the Police and Criminal Evidence Act 1984 a police officer can arrest a person who has committedis committing or is about to commit an offence (however minor), or anyone about whom there are reasonable grounds for suspicion.

The officer must have reasonable grounds for believing the arrest is necessary to achieve one of the purposes specified in the Act. For example:

  • The arrest is necessary to allow ‘prompt and effective investigation’ of a crime
  • The arrest is necessary to stop a person from obstructing the highway

Police can use ‘reasonable force‘ to make an arrest. An arrest automatically makes the case ‘active‘ under the Contempt of Court Act 1981, affecting what can be published about it.

The Contempt of Court Act 1981 safeguards the fairness of trials. A breach is a contempt offence, for which a media organisation can be heavily fined or an individual jailed for a maximum of two years.

Police investigations are driven by the standard of proof needed to convict someone of a crime. Reporters need to understand police powers to arrest and detain. Although there is a strong public interest in media reporting of crime and police interests there are many things the media need to be wary of including:

  1. Contempt of court, law made ‘active’ when a crime suspect is arrested.
  2. Libel, if media reports identify a suspect before he/she is charged.

Standard of proof in criminal law

The presumption of innocence’ is a legal principle which means that those charged with criminal offences are not required to prove themselves innocent. The responsibility is on the prosecution to prove guilt ‘beyond reasonable doubt‘ which is the standard of proof necessary in criminal law for a conviction. Those who investigate crime (e.g. the police) need clear evidence to meet this standard. In civil law it is necessary to prove on the ‘balance of probabilities’.

Prosecuting agencies

  • Local authorities, e.g. tenancy disputes, trading standards
  • Serious Fraud Office
  • Revenue and Customs (tax)
  • RSPCA and also (rarely) other private prosecutions

Criminal law and civil law

There are two main divisions of the law:

  1. Criminal law handles offences against the whole community and thus against the sovereign. In criminal courts a defendant is prosecuted, pleads guilty or not guilty, and will be acquitted or convicted (either to be fined or jailed).
  2. Civil law deals with disputes between individuals and organisations, and includes the redress of torts – wrongs suffered – including medical negligence, defamation and breach of copyright. It is also in place to resolve disputes between couples such as divorce actions. In civil courts a claimant sues a defendant or respondent, who admits or denies liability, and is found either liable (to pay damages) or not liable.

Categories of criminal offence

  • Indictable-only: the most serious offences (murder, rape, robbery) which must be tried or sentenced in a Crown Court and carry possible sentence of 5 years or more.
  • Either-way offences: as the name suggests can be heard either by magistrates or a Crown Court. Depends on gravity of allegation. Theft, burglary, assault, sexual assault.
  • Summary offences: most motoring offences (speeding, drink-driving; assault, shop lifting.

High offices in law

To help ensure that the judiciary is independent of political influence, and that the government is subject to the rule of law, the government remains separate. The head of the judiciary is the Lord Chief Justice, Lord Thomas. The UK Government is advised on law by the Attorney General, Jeremy Wright, who also has a role in prosecutions including proceedings against media organisations for contempt of court.

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Magistrates’ courts

All criminal cases start in a magistrates’ court. Cases are heard by either two or three magistrates or a district judge. There isn’t a jury in a magistrates’ court. There are more than 300 courthouses in England & Wales but soon to be less. The court clerk advises on legal matters. Different types of hearing include: guilty pleas and sentencing; summary trials; bail applications; Civil functions such as family & divorce hearings, access to children (subject to reporting restrictions).

There are three main functions of Magistrates’ Court: Adult criminal court, Youth court and Family proceedings court. There are also three main outcomes from Magistrates Court: indictable crime (minimum 5 years) which must be referred to Crown Court; minor crime (fine) – either way offence; and non custodial (a sentence not resulting in prison).

Powers:

  • Up to 6 months jail for single offence, fines up to £5000.
  • Suspended sentences (e.g. for 2 years) unless there is a repeat offence.
  • Community order (e.g. unpaid work, curfew or tag, drug treatment).
  • Absolute Discharge meaning there no punishment needed beyond fact of conviction (‘Suffered enough already’).
  • Conditional discharge meaning no immediate penalty but a conditional on good behaviour (e.g. no more offending).
  • Binding over to keep the peace (ancient origins) meaning if the defendant agrees, prosecution may decide to drop charges. If there are ‘breaches of the peace’ within a specified time, a surety will be forfeited.
  • A restraining order can be given to someone acquitted at trial and is given typically to prevent harassment of others.

Key reporting restrictions in Magistrates Courts:

Reporting restrictions are necessary to ensure a fair trial later on and information published before a trial will prejudice the result.

Below are the seven points you can report at pre-trial hearings:

  • Names of defendants, ages, addresses, occupations
  • Charges faced or a close summary
  • Name of court and magistrates names
  • Names of solicitors or barristers present
  • Date and place to where case is adjourned
  • Any arrangements as to bail
  • Whether legal aid was granted

Nothing else can generally be reported, unless restrictions are lifted by a Judge sitting in a Crown Court or the defence makes an application to do so.

Children and young people

Particular rules apply, from the age of criminal responsibility (10) until attainment of adulthood (18).

Youth Court:

  • Less formal with specially trained magistrates.
  • Strict anonymity is the rule, for defendants and witnesses (Section 49 orders).
  • Journalists can attend youth courts but not the public.
  • Restrictions apply to all aspects that might identify.
  • Section 39 orders apply to juveniles in adult proceedings.
  • Beware ‘Jigsaw identification’ (the ability to identify someone by using two or more different pieces of information especially when the person’s identity is meant to be secret for legal reasons).

Youth court powers:

  • Community punishment, fines, conditional discharge.
  • Youth rehabilitation orders including various curfews/requirements.
  • Detention orders up to 2 years.
  • Parenting orders.
  • Very serious cases (murder/manslaughter) go to Crown Court.

Anti-social Behaviour Orders (ASBOs)

An order which can be made against a young person (or adult) to prevent repetition of behaviour which causes harassment, alarm or distress.  It is a civil law order but breach is a criminal offence. ASBO orders can be made in Magistrates’ Courts sitting in civil capacity or can be imposed by youth courts or after a defendant has been convicted of an offence – known as ‘Bolt-on’ hearing.

Crown Courts

Crown courts deal with the most serious criminal cases. Crown court judges rule on law and decide on punishment, and in trials juries decide whether each charge is proved. Automatic reporting restrictions limit what the media can report from most Crown court hearings held prior to trial. A defendant convicted in a Crown court can seek to appeal to the Court of Appeal, and thereafter to the Supreme Court. Crown courts hear appeals from magistrates’ courts against conviction or sentence. The High Court is also an appeal court for certain matters.

Big differences:

  • Jury trials
  • Judges of varying seniority
  • Barristers and solicitors
  • Cases may last several days, weeks or months

If the jury is not present proceedings should not be reported. Reporters in covering court proceeding enjoy ‘absolute privilege’ which is a complete defence against any action for defamation. But it depends on the report being ‘fair, accurate and contemporaneous’. Defamatory shouts from the public gallery are not privileged. As a rule of thumb anything said in absence of jury is not reportable.

Court orders are typically made to protect identification of children who may feature in a case. It is up to the media to make sure all references heard in court to names and places are removed.

Key stages of a trial :

  • Prosecution opening
  • Key prosecution witnesses
  • Defence opening (could be weeks later)
  • Key defence witnesses
  • Judge’s summing up
  • Jury sent out, deliberation, clarification, verdict.
  • Sentencing

To maintain the protection of absolute privilege, a report must be:

  • Fair – balance between both sides – over length of trial
  • Accurate – need for shorthand!
  • Published contemporaneously – i.e next deadline
  • No electrical recording devices or photos in court.

Lawyers may be either solicitors or barristers:

  • Solicitors deal directly with the client and represent them in court (solicitor-advocates may appear in the higher courts). Solicitors are there to advise, prepare the client’s case, and take advice from a barrister when deemed necessary.
  • Barristers are known as ‘counsel’. In the higher courts, the Crown courts and county courts (with the exception of magistrates court), they are permitted to wear a wig and gown. Those who have been practicing for the minimum of ten years may apply to the Lord Chancellor for appointment as a Queen’s Counsel (allowing them to use the letter QC after their names).
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About brackenstockley

Contributor to the JusticeGap and WINOL. Currently studying journalism at the University of Winchester (Year Three).
This entry was posted in Media Law Update (2015). Bookmark the permalink.

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