The Open Justice UK group has been refused permission to live tweet a case in Scotland, as Cristiana Theodoli (@_cric) explains here. While journalists have applied to tweet and tweeting was allowed during sentencing in the Tommy Sheridan trial last year, not one journalist has gained authorisation to live tweet a full trial, according to Theodoli (specific permission is required for journalists, unlike England & Wales).

Open Justice UK liaised with the Scottish court ahead of the selected trial but:

“Today, just a day or two before the trial is due to start, we received a short email stating that the Judge has a number of concerns that he feels should be taken up at a senior level and the timescale would not allow for it.”

Meanwhile, at a High Court (Chancery division) hearing in London last Thursday (23 February) the Guardian secured access to court documents relating to News International and Glenn Mulcaire.

In an approved judgment released on Monday (27 February), Mr Justice Vos set out the reasons he has allowed the Guardian (“and any other media organisations that request them”) to access redacted documents, including the “generic Particulars of Claim”, “the Notice to Admit” and the “Response”, mentioned at the phone hacking pre-trial review on 19 January 2012. No parties objected to the Guardian’s request to access a fourth document, the “generic list of issues”.

I’ve flagged up a few key parts below.

Mr Mulcaire’s counsel were concerned

“…that reporting of some parts of the 3 documents will create a substantial risk that the course of justice in the further criminal proceedings that Mr Mulcaire may face will be seriously impeded or prejudiced.” [3]

Vos J found:

“There is a distinct and crucial public interest in scrutinising the decision-making process in this case, and in knowing the facts on which the decisions are being made.” [80]

He said:

“it seems to me to be entirely legitimate for GNM and other media organisations to wish to see unredacted copies of the core documents on the basis of which these proceedings have been and are being conducted.” [81]

…

“First, so far as can be judged today, reporting of the parts of the 3 documents that Mr Mulcaire wishes to see redacted would not, with the one exception already mentioned, give rise to a ‘not insubstantial’ risk of prejudice to the administration of justice in Mr Mulcaire’s future trial (if there is one)”… [82]

He concluded that GNM should be provided with unredacted copies of the three documents, save for several stipulated redactions detailed in par 87 (reasons discussed in the judgment).

The judgment discusses the application of the CPR Part 5.4C(2) and the “Open justice availability of documents to non-parties” (CPR Part 5.4C.10).

You can read the judgment in full, below:

HT: @adamwagner1 for alerting me to the published judgment.

There is an increasing range of legislation that can criminalise journalists.

The alleged law-breaking by journalists at the News of the World is indefensible. But Parliament has made it almost impossible for journalists to operate effectively without falling foul of legislation.

So when the prime minister David Cameron refers to a “free and vibrant media, completely unafraid to challenge authority”, but one that “operates within the law”, he must realise that the second part of that statement makes the first part impossible.

Here’s some other recent legislation that is already being used to harass and potentially criminalise photographers:

1. The Serious Organised Crime and Police Act contains a new offence of “harassment intended to deter lawful activities” – ie, harassment that is intended to persuade someone to do something he is not obliged to do, or to stop him from doing something he is legally entitled to do.

This measure can be used to prevent photographers “camping” outside people’s homes and prevent a photographer from door-stepping someone – either they, or even one of their neighbours, can claim that the presence of the press was causing them alarm or distress.

The same act also gives police the power to order someone to leave the area around someone’s house, and not to return for up to three months.

2. The Protection from Harassment Act 1997 says that a person must not pursue a course of conduct that amounts to harassment (alarming the person or causing them distress) of someone else and which he knows or ought to know amounts to harassment.

Photographers are vulnerable here – but the action must have occurred at least twice. The prosecution does not have to prove intent, as with many other offences – only that the conduct occurred in circumstances where a reasonable person would have realised that harassment would result.

3. A photographer could be arrested without a warrant and could have his property searched. He could be fined or jailed and vulnerable to a civil action for damages.

4. Photographers are also vulnerable under the Public Order Act 1986, if they use threatening, abusive or insulting words of behaviour, or disorderly behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress.

5. The Criminal Justice and Public Order Act 1994 also established a new offence of intentional harassment – using threatening, abusive or insulting behaviour, intending to cause a person harassment, alarm or distress.

6. Police sometimes use the Highways Act 1980 to prevent “willful obstruction of the free passage along the highway” to arrest photographers who are getting in the way at a demonstration or major incident.

7. If a photographer on public land persists in taking photos after a policeman tells him to stop, or argues with the policeman, he can be arrested under the Police Act 1964 for obstructing an officer in the execution of his duty.

8. Photographers / photojournalists can be stopped and searched by police using anti-terrorism legislation, under the Terrorism Act 2000, if an officer suspects the photos are part of hostile terrorism reconnaissance. The problem for the media is that officers do not have to suspect the photographer is a terrorist. This allows police to claim a search is necessary to find out if the images are part of hostile terrorism reconnaissance.

9. Under the same act, a journalist can be prosecuted for eliciting, or publishing information about someone who is, or has been, a member of the Armed Forces, UK Intelligence Services, or a police officer – if the information could be useful to someone preparing or committing an act of terrorism.

10. Section 76 of the Counter-Terrorism Act 2008 can make it a criminal offence to take photographs of police officers. Under S76, eliciting, publishing or communicating information on members of the Armed Forces, Intelligence Services and police officers which is “likely to be useful to a person committing or preparing an act of terrorism” will be an offence carrying a maximum jail term of 10 years.

11. The police have no powers to stop a photographer taking shots in a public place. But this hasn’t stopped them – and others – using the Prevention of Terrorism Act 2000 harass and intimidate photographers and journalists – see, for example this article and the links below:

• http://www.wired.com/gadgetlab/2008/04/videoclueless/
• http://www.guardian.co.uk/uk/2010/feb/21/photographer-films-anti-terror-arrest
• http://www.bjp-online.com/british-journal-of-photography/news/1644048/jail-photographing-police

… and too many others to list [other examples can be found here].

There’s plenty more legislation like this. The media has never faced such an onslaught of restrictive legislation in its history, or a police force who enthusiastically use, and misuse, the powers that Parliament has given them.

I don’t defend what the NOTW reporters did.

But I hope Lord Justice Leveson also uses his judicial inquiry to investigate why there is such a frighteing range of legislation that inhibits good journalism. And why the police, sometimes illegally, enforce it.

Cleland Thom runs the CTJT e-college and is @ClelandthomCTJT on Twitter.