Torture is how the Sun sums up what the family of Millie Dowler were put through during the trial of Levi Bellfield.

The story is aimed at the treatment of the family by defence lawyers but the media also adds to the pain of families of murder victims by, in the interests of balance, having to cover defence cases which try to blacken the name of those who have been murdered.

I covered murder cases when I worked for a news agency and an evening paper. I remember two cases involving the murders of a 12-year-old boy and a teenage girl who were both sexually attacked.

The defence put forward claims that the victims had agreed to sex and were murdered by other people. It was the only possible defence because there was strong forensic evidence linking the accused to the sex attacks on the murder victims.

It led to lurid headlines saying the girl or boy had “agreed to sex”. It has always troubled me that the newspaper reports based on the spurious defence claims added to the distress of the families of the murdered children.

In both cases, police said afterwards that there was not a shred of evidence to back up the claims put forward by the defence.

It’s not the media’s fault. Journalists are taught court reports are privileged only if you give a balanced report of a court case. But it doesn’t make it right.

This post originally appeared on Jon Slattery’s blog. Jon is a freelance journalist based in London and was deputy editor of Press Gazette, the journalists’ magazine, from 1993 until 2006.

Submissions will be taken from February 7 to May 4 2011.  It’s good to see them acknowledge the problem of defining the media – it’s about time this issue was properly addressed. Maybe this will put it on the agenda for future Contempt of Court discussions.

[I previously reported on Tweeting from court here]

It says:

“The central issue to be considered by this consultation, therefore, is how the courts should take account of these technological and cultural developments in reporting, in a way which protects freedom of speech, the right to a fair trial and maintains the statutory requirement that reports of legal proceedings must be fair, accurate and in good faith.”

Key questions:

1.   Is there a legitimate demand for live, text based communications to be used from
the courtroom?

2. Under what circumstances should live, text based communications be permitted from the courtroom?

3. Are there any other risks which derive from the use of live, text based
communications from court?

4. How should the courts approach with the different risks to proceedings posed by
different platforms for live, text based communications from court?

5. How should permitting the use of live, text based communications from court be
reconciled with the prohibition against the use of mobile telephones in court?

6. Should the use of live, text based communications from court be principally for the use of the media? How should the media be defined? Should persons other than the accredited media be permitted to engage in live, text based communications from court?

Consultation doc embedded below:

In November 2008, I rang the Old Bailey to try and find out what reporting restrictions were in place for the ongoing Baby P court case.

The case, in which Baby P’s mother, her boyfriend and her lodger were being tried for the 17 month old’s death, was off-patch for me as a media reporter, but I was interested in television and newspaper coverage, and the public reaction.

What’s more, comments about the case were appearing under my then-employer’s (pre-moderated) blog, which I felt sure were in breach of a court order, judging by the limited details given in other media reports. It seemed sensible to call and find out what the restrictions were, even though I wasn’t reporting from court.

In error, the Old Bailey’s switchboard operator put me through to the press room at the court (where the journalists can wait or work), which led to a bizarre conversation with an individual who, extremely rudely, told me ‘you don’t pay’ so ‘why should I send you them to you’, suggesting that I put £50 in an envelope to access the documents.

The answerer’s identity remains a mystery (he told me he had forgotten his name before hanging up). I then called the correct department who asked me to send my request by fax. After another couple of stages in which I had to confirm my status as a journalist, I finally accessed the material.

Another time, I needed the claim forms for a High Court libel case as quickly as possible, but I was unable to travel to London. These documents could not be faxed or emailed, but needed to be picked up and paid for in person. Fortunately I knew the case number and a journalist friend in the city was able to do this for me.

In Heather Brooke’s latest book, ‘Silent State’, she devotes a chapter to ‘Secret Justice’ and reports similarly odd encounters when trying to access the courts (she has also written about this issue on her blog and in the Times).

Just as I’ve experienced, she was advised she could leave her belongings in the sandwich shop across the road, in order to enter the Old Bailey – or the Central Criminal Court as it’s otherwise known. She was told not to make notes in the public gallery.

On another occasion at the High Court she had to go through several cumbersome and inefficient steps to access documents that are supposed to be accessible to the public.

Is this lengthy system justified?

“I certainly do think that such materials should be made more generally accessible, in particular court data,” says Hugh Tomlinson QC, in a conversation by email.

“I think that it should be data which has not been collected in the past, for example, case type, date of grant or discharge of any interim injunction, statements of case, skeleton arguments for hearings, any publication restrictions, date of next hearing etc.

“There is no reason why this could not be done online – like the Court of Appeal (civil) does for some information, but you need to know the case name first.”

If  the system was simplified, so that it was easier to find case name and its accompanying documentation, it could save money and be more democratic.

Brooke reports that it took “four different people in four parts of the East Block [of the High Court] just to get one document which exists most likely in electronic form and could have been given to me at no cost whatsoever and without inconveniencing four different people”.

She also cites news agency journalist James Brewster, who suggests documents should be automatically available, including the claim form, the particulars of claim, skeleton arguments and witness statements, once admitted into evidence.

More often than not, accessing court information, Brooke says, “comes down to that great British tradition of knowing the right people and keeping them sweet”.

Compare the English archaic ’round the houses’ system, to US online court publication, where case dockets and accompanying documents are published online.

The UK is left behind, with its weird traditions that create unnecessary confusion and muddle.

“We’re in the 21st century,” says Mike Dodd, editor of the PA Media Lawyer service, “[but] courts still have the mindset of Dickens”.

Media restrictions

It can be ill-informed security staff that can lead to the inconsistent messages and regulation over reporting the courts and accessing information. But restricting the press from reporting certain details often goes further than that, on the orders of the judge.

Dodd, who is also the agency’s in-house media law specialist, tells me about a Court of Appeal case in 2008 when Trinity Mirror, and various other newspaper groups, challenged an order issued in Croydon Crown Court that restricted the media from identifying a defendant on the basis it might harm his children – who were not involved in the trial. While Trinity Mirror won the appeal, it still cost them “a fair amount of money,” he says.

The Court of Appeal ruling can be found on Bailli, a public case law database funded by numerous legal sponsors. An extract:

In our judgment it is impossible to over-emphasise the importance to be attached to the ability of the media to report criminal trials. In simple terms this represents the embodiment of the principle of open justice in a free country. An important aspect of the public interest in the administration of criminal justice is that the identity of those convicted and sentenced for criminal offices should not be concealed.

More recently, a media restriction order was overturned, when the Guardian challenged a Court of Appeal anonymity order for four individuals, which stated: “no report of these proceedings shall directly or indirectly identify them or any member of their families”.

In the end in January 2010 the UK Supreme Court ruled that after testing the balance of the subject’s article 8 rights and the article 10 rights of the press, “we have come to the conclusion that there is indeed a powerful general, public interest in identifying ‘M’ in any report of these important proceedings which justifies curtailment, to that extent, of his, and his family’s, article 8 Convention rights to respect for their private and family life.”

The anonymity order was overturned and the appellants were named.

Courts orders: but how do we know?

There have been discussions for the creation of a database containing court orders for media organisations, but that plan never came to fruition, not least because of the costs involved – for the media to pay. It looks unlikely to happen.

In 2007 Press Gazette reported renewed calls for such a database, after a newspaper was fined for breaching an order:

A Ministry of Justice spokesman said: “Her Majesty’s Court Service has had early discussions with the Society of Editors to scope for feasibility of a database of court reporting restrictions and investigating the options of setting up such a database so that the media can fund it.” In the interim it remains the responsibility of reporters and their editors to ensure no restrictions apply.

Journalist James Brewster, in Heather Brooke’s book, describes the reporter’s fear of missing a reporting restriction when it is given in court and unwittingly committing Contempt.

Often journalists know about court orders because they’ve been tipped off by another media organisation. “The practice is for such orders to be intimated to the Press Association,” explained the Supreme Court judge, in relation to the Court of Appeal anonymity order challenged by the Guardian.

So how are bloggers and social network users, who don’t subscribe to the PA or receive inside information, supposed to know about the orders and injunctions?  After all, the media can’t report the exact restriction, as I couldn’t in the Baby P case, because they would then be in breach of it.

Must bloggers obey court orders too?

That’s a question the courts seem to be struggling with. Malcolm Coles, who often writes about media and internet ethics, discussed the issue on his blog during the Alfie Patten media frenzy in March 2009. When Coles asked the Ministry of Justice how it intended to deal with the issue, a spokesperson told him there were no plans, despite admitting the difficulty of the situation.

The spokesman added: “It is the responsibility of those reporting cases … to ensure that no reporting restrictions apply. The maximum penalty for contempt of court is 2 years.” But he conceded this left bloggers in a ‘catch 22′ – bound by court orders they have no way of accessing the details of.

Defence lawyers in the Baby P case criticised bloggers’ activities, saying that they prejudiced the second trial. “These internet campaigns made it impossible to hold a fair trial,” they argued, according to a BBC report.

In the end the judge made a firm order banning the jury from internet research. But is this enough? How can Contempt of Court law keep up with the online age? Is there any point in granting so-called ‘super injunctions’ when a well-informed social media user can render them useless with a single tweet.

To date, the lawyers I’ve interviewed are not aware of any prosecutions that have resulted from social media users and bloggers breaking reporting restrictions. But for how much longer?

Back in 2008 when I asked the executive director of the Society of Editors, Bob Satchwell, about educating the general public about Contempt of Court he did not consider it a priority, suggesting that any policing of the internet was something of a lost cause.

He said:

The way of dealing with it is not stopping the publication, but strengthening the reminders to jurors that they must look at the evidence which is brought before them in court. Who’s to stop people in another jurisdiction putting it online? The internet is global. You cannot, by legislation, control the internet.

Opening up the courts

The next question of course, is how much the Ministry of Justice, is spending on outsourcing data and building applications, while important courts documents remain inaccessible. And why doesn’t it put more usable data online?

Commenters on the Guardian site were dismayed to learn that a Freedom of Information (FoI) query earlier this year revealed that the UK Supreme Court (UKSC) and Judicial Committee of the Privy Council (JCPC) websites cost £360,000.

I wonder then, how much is spent on ‘You Be the Judge’, a swish but slow loading (on my wifi, at least) online site that presents scenarios based on real court cases for which online users can make judgments.

Is this a useful deployment of resources, when the same public can’t easily access basic real public information, either directly or via the media? Time for an FoI into expenditure and plans for developing online resources, I think. Follow my progress here.

Keeping track

I’ve been asking various media law sites how they keep track of courts information.

• The Inforrm Blog’s collection of its courts data for regularly updated spreadsheets is manual.
• Another legal blogger told me he uses Bailli and 5RB to track media law cases, rarely using a paid-for service.
• Mike Dodd’s method? “Running about like a lunatic,” he says, adding that he has a few people who keep him informed of what’s going on.
• Paid for legal information services include LexisLibrary, Westlaw UK and, as mentioned above, PA Media Lawyer.

How to monitor courts data

For this site, meejalaw.com, I’ve identified a few ways to keep track of media law data. Here’s a quick how-to guide for keeping on top of the latest media law developments.

• This customised RSS feed, also publishing to Twitter (@medialawuk) pulls in media law news from various reliable sources, including media trade publications and legal blogs.
• The latest case rulings are published on Bailli (Queen’s Bench, here, for example). Case listings can be found on the HMCS site.
• You can follow the progress of individual Parliamentary bills, such as Lord Lester’s defamation bill, via this RSS feed or email alert.
• You can track the progress of Freedom of Information requests made to the Ministry of Justice via WhatDoTheyKnow.com via this RSS feed.

Case study: Judge Duino and the Gavel

At the Hacks and Hackers Hack Day event in Liverpool in July, one team decided to build a tool for tracking courts data.

Adrian McEwen, Donovan Hide, John O’Shea and Andy Freeney designed ‘The Gavel’ featuring Judge Duino (Do-eee-no – a wordplay on the programming software used) with the aim of making legal process data tangible.

Using HM Courts Service data they created automatic alerts – for when a case closed, for example. The aim, O’Shea, says, was to make clean, clear information available in real time.

The fun part of this was the physical aspect: an electronically controlled ‘gavel’ which could be triggered in response to different aspects of the data, but I wonder if email alerts or an RSS feed might be a more practical solution.

“I think that this project might be thought of as a very early prototype for a truly public and transparent interface with ‘law’,” says O’Shea. The developers are considering fine tuning it further, and their work can be viewed at: http://causelist.org/. John O’Shea has more detail here.

Video of the judge in action at this link or at 1m43 in the video below [Photos: John O’Shea on Flickr]

Update, 8 October 2010: Replies to my Freedom of Information requests reported at this link, including information about the cost of Criminal Justice System ‘You Be the Judge’ feature and the outcome of plans for a media database of reporting restrictions.

I’ll come back to transparency issues in another post, but before that I want to share one of Brooke’s observations that made me laugh. When I first encountered the rigmarole a member of public has to go through to access the Old Bailey (Central Criminal  Court), I couldn’t believe it. The staff member actually suggested that we pay to leave our mobile phones in the shop across the road (for a very small fee). Our grand and severe legal system can have such bizarre quirks. At the time – a few years back – I wondered if there was a colour feature to be written about it.

Well, Brooke has beaten me to it in her book. From p 154, ‘The Silent State':

“I head up a narrow staircase surrounded by chartreuse walls to a guard waiting beside a metal detector. He says no phones or large bags allowed. What about writing? Can I take in my notepad? He says I can but there is no storage for the forbidden items such as my phone. He says there is a sandwich shop across the road or a bar further along the street when I can leave the items for a charge.”

Brooke then  investigates: it turns out that Murat Mert, the owner of the sandwich shop, inherited this system from his predecessor, but business isn’t what it was: fewer people are coming to court.

Maybe they’re all at home playing ‘You Be the Judge’, an online interactive game launched by the Ministry of Justice earlier this year, in which users assess cases for themselves – and see if they agree with the judge’s ruling.  This week the MoJ added some new scenarios based on real cases, but I was disappointed they don’t include libel or privacy cases. That would have been interesting.