The Open Court Rule
Under English Law it is a general principal that court proceedings should be held openly and in public in order for members of the general public can be informed fully about the justice which is said to have been administered in their name.
Can hearings be held in Private?
There are certain scenarios when a hearing or part of a hearing can be held in private. Part 39.2(3) of the Civil Procedure Rules sets out the following examples of when this will be deemed suitable:
- When publicity would defeat the object of the hearing
- If the hearing involves information relating to national security
- If the hearing involves confidential information and which the publication of would damage the confidential nature of the information
- Where it is deemed necessary to protect the interests of a child or a patient
- If it is a hearing which is made without notice and it would be unfair or unjust on any of the respondents for the hearing to be made public
- If the hearing involves uncontentious matters rising out of the administration of a trust or an estate
- If the court considers it necessary for the administration of justice
The judge will make the decision of whether the trial or parts of the trial will be private. There are 11 categories of cases that should in the first instance be listed by the court as hearings in private which are detailed in Practice Direction 39 which supplements Part 39 of the Civil Procedure Rules. An example of this is cases where children are involved.
Does the Human Rights Act have a part to play?
In certain cases where publishing information of criminals such as confidential information which may lead to their eventual identification. For example the publication of confidential information as to the new whereabouts and identities of convicted child murderers may be thought lead to the possibility of revenge attacks from the general public. If this is to be the case the Human Rights Act 1998 will prevent the publication of that information.
Open Courts and Reporting
Restrictions placed on the media
In the cases where the courts are open to the public there may still be certain restrictions placed on the media in relation to what they can report on etc. The court can place orders on the media restricting or preventing them from reporting on various things. The following are the examples of the powers that the court has to restrict the reporting of the media:
- The power to postpone the reporting of proceedings
- The power to prevent the publication of the names of the parties
The Power to postpone the reporting of Proceedings
Section 4(2) of the Contempt of Court Act 1981 enables the court to postpone the publication of any report which is relation to the proceedings of the court. The length of the postponement will be for any period of time which the court thinks it necessary in order to avoid a substantial risk of prejudice to the administration of justice.
The key things to look at here are necessity and substantial risk. In relation to necessity the court must show that the postponement was really needed otherwise it would fall foul of the Human Rights Act. In relation to substantial risk, this must be more than a minimal risk but it does not have to be proven to be a substantial risk. Both the necessity and substantial risk will be examined in order to decide on the suitability of the length of the postponement.
The power to prevent the publication of the Names
Section 11 of the Contempt of Court Act 1981 provides the court with the power to restrict the publication of certain material in the following manner:
- When the court allows a name of another form of information to be withheld from the public during the court proceedings the court can also give directions preventing the publication of that name or other information. In relation to this aspect the order preventing the publication of the name can only be made when that name has not been spoken or made public during the hearing.
For more information on:
- Are there any Specific Restrictions imposed by Statute on the Press?
- Information in relation to children
- Family Proceedings
- Criminal Hearings
- Criminal Investigations
- Children tried in adult courts
- Victims and Witnesses
- Sexual Offences