The open court rule
Under English Law, it is a general principal that court proceedings should be held openly and in public so the general public can be informed 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. Examples of when this may be appropriate are set out in Pt 39.2(3) of the Civil Procedure Rules include:
- 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 in the interests of justice.
It is up to the judge to decide whether the trial or parts of the trial should be held in 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 Pt 39 of the CPR). An example of this is cases where children are involved.
Human Rights Act 1998
The right to freedom of expression – which includes the rights of the media to provide fair, contemporaneous reports of legal proceedings – and the right to a public hearing are both guaranteed by the Human Rights Act 1998 (HRA 1998). While both provisions are qualified rights and permit exceptions, any restriction on the public’s right to attend court proceedings and the media’s ability to report them must fulfil a legitimate aim under these provisions and be necessary, proportionate and convincingly established.
According to Practice Guidance (Interim Non‐disclosure Orders) , it is for the party seeking to derogate from the principle of open justice to produce clear and cogent evidence in support of the derogation.
Open courts and reporting
Restrictions placed on the media
Where the courts are open to the public, there may still be restrictions placed on what the media can report on. The court has the power to:
- postpone the reporting of proceedings;
- prevent the publication of the names of the parties.
Power to postpone the reporting of proceedings
Section 4(2) of the Contempt of Court Act 1981 (CCA 1981) enables the court to postpone the publication of any report relating to court proceedings. The length of the postponement will be for any period of time which the court thinks necessary to avoid a substantial risk of prejudice to the administration of justice.
Power to prevent the publication of the names
Section 11 of CCA 1981 provides the court with the powers to restrict the publication of certain material. These include:
- when the court allows a name to be withheld from the public during the court proceedings, the court can also give directions preventing the publication of that name;
- the order preventing the publication of the name can only be made when it has not been made public during the hearing; if it has, the press is free to include it in their reports.
Restrictions imposed by statute
There are automatic bans on the media reporting on:
- information in relation to children;
- hearings concerned with sexual offences;
- divorce cases.
Information in relation to children
- Family proceedings
Under s 97 of the Children Act 1989 (as amended) the publication of material from family proceedings which is intended, or likely, to identify a child involved (or the address or school of such a child) is prohibited.
- Criminal hearings
The Children and Young Persons Act 1933 (as amended) prohibits the publication of information which reveals the name, address or school of any young person concerned in proceedings in a Youth Court.
- Criminal investigations
Under the Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999), the identity of those aged under 18 who are being criminally investigated by the police (but who have not yet been the subject of a trial or any proceedings) must not be published.
- Victims and witnesses
The identity of a victim, witness or defendant under the age of 18 who is concerned in proceedings in a magistrates’ court or the Crown Court may be published unless the court makes an order banning publication under s 45 of YJCEA 1999.
A victim of any of the offences listed under the Sexual Offences Act 2003 has a right to anonymity from the time the complaint was first made to the police. The complaint does not have to have been made by the victim for the anonymity to commence.
Victims over the age of 16 may be identified if they consent in writing, freely and without any undue influence to being so.
Section 1(1)(b) of the Judicial Proceedings (Regulations of Reports) Act 1926 (as amended by the Family Law Act 1996) restricts the reporting and publishing of information relating to divorce, nullity or judicial separation to:
- names, address, occupations of the parties and witnesses;
- a concise statement of the charges, defences and counter-charges;
- submissions on any point of law arising in the course of the proceedings, and the decision of the court thereon;
- the summing-up of the judge and the finding of the jury (if any) and the judgment of the court and observations made by the judge in giving judgment.