Amid concerns over proposed changes to the Contempt of Act 1981, through the Criminal Justice and Courts Bill, which would introduce new statutory powers for the removal of online material*, it seems worth highlighting some separate recommendations on contempt and court reporting, published in late March.
In February 2014 I was pleased to be invited by the Law Commission, along with my City University London colleague Claire de Than, to discuss the draft version of a new report on court reporting, part of a wider consultation on contempt of court.
I won’t go into detail here (the report has a concise summary of its recommendations, quoted below), but I wanted to flag up its main points and make a few additional observations for the successful implementation of its – in my view – useful and practical recommendations.
It focuses on S4(2) postponement orders; these are specific type of restriction that orders the postponement of publication of a report of live, pending or imminent proceedings, or any part of proceedings “for such period as the court thinks necessary for that purpose“.
The report discusses the extent of these orders in some detail, raising questions over their application and ambiguity but the final recommendations focus on the recording and publication of S4(2) orders in the Crown Court; it believes that providing a list of restrictions for potential publishers will help address some of the current uncertainties and the lack of clarity with the current system.
Following a pilot, it recommends a number of practical measures, which I have annotated with my own observations:
6.1 We recommend the adoption of a publicly available online list of existing section 4(2) orders in force in England and Wales similar to that currently in place in Scotland.
This seems a straightforward and simple solution that seems to be working very effectively in Scotland. The LC’s pilot seems effective and an easy add-on to the crown courts’ existing activity.
6.2 We recommend an addition to the standard form to make clear that where a section 4(2) order includes a prohibition on reporting the existence of the order or its terms, this does not apply to the order’s publication on the official online database
A necessary accompaniment to the proposed system. The terms of the order would not be breached if included in an online list by name (anonymised if necessary, with case number) or in a restricted access database. This is a natural extension of what happens already. Like the report says “under the current practice, it [the prohibition] would not apply to the act of posting a copy of the order in the court building)” (p 27).
6.3 We recommend limiting the information displayed on the publicly available online list to the name of the case in which the order has been made, and the date on which the order expires (or if the order expires on the conclusion of another case, rather than on a fixed date, then a record of this fact, and the name of the linked case).
6.4 We recommend that the publicly accessible list of orders be supplemented by an additional restricted database which would contain the terms of section 4(2) orders themselves.
There may be practical objections, and previous efforts to create such a database didn’t go ahead following reportedly ‘eye-watering’ estimated costs for a service operated by a commercial company (background here [£] and cited here). The database is a sensible idea, but should (a) be secure and not cost the earth (b) be developed and overseen by the MoJ digital services team (not hosted externally) and (c) the developers should further consult the media, other types of digital publishers and data / contempt specialists about the necessary steps for registration (the report sets out initial suggestions for its operation). An organisation like mySociety might be well-placed to develop such a system but the list and database should be hosted by a gov.uk site.
6.5 We recommend that where there are reporting restrictions in place relating to the names of parties to the proceedings, the online list will identify cases by number, with a suitably anonymised case name.
6.6 We recommend that for those orders whose expiry is contingent upon another event, reasonably frequent checks are undertaken by the administrator of the list to ensure that expired orders are removed from the list.
This is where I foresee practical objections being made by HMCTS / MoJ – the checking of expiry dates and the progress of linked cases is an additional task, for the courts or the list administrator. However, I think it is entirely reasonable. If journalists and other members of the public are expected under law to adhere to the terms of the order, we should be given clear and up to date information about the orders and their duration.
My main concern is that despite the seemingly smooth running of the pilot this sensible proposal will be blocked by administrative obstacles.
A key question for me, footnoted in the report, is who will run this list. The LC suggests (p. 32, footnote 8):
Any one of a number of public bodies or private contractors could be tasked with administering this database. This is an operational matter and outside the scope of this report’s recommendations.
However, the operational running costs appear to have been the main block the last time a reporting restrictions database was proposed. As the Scottish list shows (set up within a matter of hours and it takes a couple of hours each week to maintain), a list can be implemented cheaply, easily and without fuss (and the pilot suggests that there would be no more than 120 orders per month across the whole of England and Wales, p 25). A database is slightly more complicated, but shouldn’t cost ‘eye watering’ sums. It would make sense to task its development to government digital services (see the MoJ digital services team blog for other activity around opening up data) and keep it as cost and time effective as possible.
According to the report, “publication of court reporting restrictions is an issue which is currently under consideration as part of wider plans to replace Court Service IT systems” (p 35). However, this could take a long time and is a much broader endeavour than that discussed in this report. I agree with the authors of the report, that the LC’s proposed “system of uploading material for publicising section 4(2) orders remains a valuable interim measure in the short term“.
And, eventually, it could be rolled out more widely.
In the longer term, the system proposed here could represent an important stepping stone towards a more comprehensive system for the publication of all court reporting restrictions, which would clearly be a desirable final outcome. (P35)
One of the main problems with the current communication of courts activity is that there are inadequate data monitoring procedures and inefficient systems for court record keeping and public accessibility, which vary between different types of court. This can be partly explained by the part-privatisation of public legal information, which relies on external providers to disseminate public courts information. In an age of cheap and fast digital publishing, it is essential that this changes over time, towards a more open and fair system, which provides information at source and recognises a public right to receive information about daily courts activity. This report makes valuable recommendations which are a step in the right direction.
I’ll be writing about this, and the recording of restrictions in more depth, in due course (and conducting some research in Australia on ‘suppression orders’). Please free to leave comments below, or share thoughts by email.
*The proposals in the bill do relate to different recommendations made by the Law Commission in a previous report; for the full context see Criminal Justice and Courts Bill – Commons Library Research Paper pp. 42-44 and 47, 20 February 2014.