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. If it has already been made public in the hearing then the press will be free to use it in their reports.
Are there any Specific Restrictions imposed by Statute on the Press?
There are automatic bans on the media reporting in relation to the following areas:
- Information in relation to children
- Hearings which are concerned with sexual offences
- Divorce cases
Information in relation to children
The Children Act 2004 amends section 97 of the Children Act 1989 and section 12 of the Administration of Justice Act 1960 to clarify that the publication of material from family proceedings which is intended, or likely, to identify a child as being involved in such proceedings (or the address or school of such a child) is only prohibited in relation to publication of information to the public or any section of the public.
This means that the press cannot report and publish information concerning children as that would make it available to the general public. The information concerning the children is available to certain bodies for example social services and welfare services. The ways in which the information can be used and to whom it can be provided is detailed in Section 62 of the Children Act 2004.
Where someone under the age of 18 has been convicted of a criminal offence the hearings concerning that case will usually be held in a youth court and will be closed but will be open to certain sections of the media. Restrictions are placed upon the media by virtue of the Children and Young Persons Act 1933 (as amended) which prohibits the publication of information which reveals the name, address or school of any young person concerned in proceedings in a youth court.
This is taken further by the Youth Justice and Criminal Evidence Act 1999 which is concerned with under 18’s who are the subject of criminal investigations by the police but who have not yet been the subject of a trial or any proceedings. This again is in relation to the name, address, school or place of work and also includes any still or moving picture of the young person.
Children tried in adult courts
These provisions apply to children who are tried or who are to be tried in youth courts but will not apply when the offence was said to be so serious that they are tried in adult courts.
Victims and Witnesses
The Youth Justice and Criminal Evidence Act 1999 also provides protection for witnesses or victims who are under the age of 18 in relation to names, addresses, school or place of work and any still or moving picture. However this is not an automatic right and can only be implemented by an order from the Secretary of State which has been approved by each House of Parliament following debate.
Under the Sexual Offences Act 2003 anyone who has been a victim of any of the offences listed under the Act 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.
In cases where the victim is over the age of 16 and they consent in writing, freely and without any undue influence to being identified then they may be identified.
Section 1(1)(b) of the Judicial Proceedings (Regulations of Reports) Act 1926 which has been subsequently amended by the Family Law Act 1996 restricts the reporting and publishing of information relating to divorce, nullity or judicial separation to the following information:
- Names, address, occupations of the parties and witnesses
- A concise statement of the charges, defences and counter-charges
- Submissions on points of law and the rulings of the court
- The judgment of the court.
- Anything else in relation to the proceedings cannot be published.