Order in court: Top tips for court challenges
As Senior Managing Editor with Reach Regionals, Chris Walker has saved many journalists’ blushes in his time. Here he shares some brilliant, practical advice on the most effective ways to challenge court orders
Whisper it in court, but judges make mistakes. They are as fallible as the rest of us.
In fact, when it comes to media law, many judges presiding over criminal cases do not know as much as your average reporter. Magistrates and the clerks who legally advise them generally know even less. So do most prosecution and defence lawyers.
That’s why it is vital that we always challenge court decisions which are dubious at best and downright wrong at worst. I know it can be daunting for a reporter to stand up and and argue why a particular order should be made and it’s even harder to tell a judge he or she is acting beyond their legal authority.
So, on the basis that forewarned is forearmed, here is a brief guide to the steps you can take to make the ordeal slightly easier.
The first commandment for all reporters covering court is to ensure they have the latest version of the Judicial Studies document, Reporting Restrictions in the Criminal Courts, on the homescreen of their phone.
It is a handy compendium of key aspects of the law affecting court reporting and has at its heart the key message, endorsed by the then Lord Chief Justice, that open justice is a hallmark of the rule of law and that in recognition of this principle, the general rule is that justice should be administered in public.
All criminal courts and those who practise in them have been encouraged to respect and pay heed to it.
One of its main messages is that the media should have the opportunity to make representations before a court seeks to exclude journalists or restrict reporting in any way. Sadly, it is an exhortation which is not always followed and I am afraid it falls to the reporter in court to try to get his or her voice heard.
I realise that that is easier said than done. If a judge or magistrate, aided in the latter case by a possibly dominant and out-of-touch clerk/legal adviser, refuses the journalist the audience he or she is entitled to, then in the real word there is sweet Fanny Adams you can do about it.
All reporters can do in such circumstances is politely register their disgruntlement and give a full account when they return to the office, so that someone like me can write a civil but robust letter of protest.
As far as challenging a decision itself is concerned, there is no one-size-fits-all approach. Sometimes we know of a crunch point enough in advance to write to the judge beforehand. (Some esteemed members of the bench prefer such representation by correspondence. Indeed, we once had a judge in Liverpool who began his judicial career by suggesting we should always instruct counsel to argue the toss in court, but he quickly realised this was neither practical nor affordable.)
However, in the sometimes chaotic world of criminal justice, issues tend to crop up unheralded and it is up to the reporter to act on the spur of the moment. There may be a short adjournment to give the reporter time to consult the reporting restrictions guide and any other media law aid presciently downloaded to their phone. They may even have a minute to speak to the clerk, prosecution and defence or phone the office, but it’s at least just as likely that the judge or magistrate will summon them to speak without warning.
An article like this is nowhere near long enough to pre-empt all the possible scenarios of challenge, but here are three examples of potential courtroom conflict.
Section 45 orders: courts often need reminding that these are discretionary and there has to be good reason, apart from merely age, to impose one to protect the identity of a defendant, victim or witness under 18 appearing in an adult court. Regrettably, words along the lines of “he’s under 18 so, of course, there needs to be a s45 order” are uttered too often.
Sexual offences: victims of most such offences have automatic anonymity. Courts often make a s45 order to protect the identity of an alleged sex abuse victim under 18. At best, that is totally unnecessary; at worst, it can cause confusion and complications.
Section 11 orders: these cannot be validly made to stop the publication of information, such as a name or address, that has been disclosed in open court, including on the court listings.
Finally, remember that even if a court order has been imposed outside a court’s legal powers, it still has to be obeyed unless and until it is overturned. And as I said at the outset, judges do make mistakes — and sometimes big ones.
A few years ago, a Merseyside council sought and got a court order to close down a business because of concerns the two men running it were sexually assaulting teenage girls. The district judge banned all reporting of the case, which had been held in public, because the police told him they were in the early stages of a major investigation.
As soon as we became aware of this absurd order, I politely but firmly wrote to the judge telling him there was no legal basis for what he had done. Days later, he rang me up.
“I have no doubt you are right,” he said. “Points of law are not my strength.”