The Fleet Street hack is a long tradition, which may properly be called noble despite its share of ignoble practitioners and conventions. For any number of years journalists have been filling press benches at the courts, column inches in the dailies and glasses in the pubs, as they chronicle the drama, misery and human frailties that every piece of litigation evokes in one form or another.
Unfortunately it seems that that tradition is under threat, according to David Banks in last Tuesday’s Guardian. Mr Banks warns that with fewer local courts to sustain local journalists and, more worryingly, the preference of modern editors for “churnalism” – by which I imagine Mr Banks is referring to the bland non-news produced by the many blood relatives of Private Eye’s Phil Space – the days of reporters sitting patiently through the many boring days and boring cases to find the gems of public interest are fast diminishing.
There are many grounds for concern about this trend. One recalls Lord Hewart’s famous dictum that “it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”. This is the cornerstone of English justice. It is reflected in the rules regarding open courts, the few exceptions to which are always the subject of robust debate. It is the means by which judges – unelected law makers who wield great power – are kept in democratic check. Indeed, it has long been observed that judges are the only public servants who make every single decision in public.
Yet only the tiniest proportion of the general public has the time and the inclination to sit in court observing cases. Almost all who do are only there because they have an interest in the outcome. The rest rely, naturally enough, on the media to inform them of what happens in the courts. It follows that the role of the journalist is one of the highest public importance. Fewer journalists means fewer reports which means a weakening of that vital role.
It is true that not all of what journalists publish about court proceedings concerns important legal developments; they of course want the drama, the gossip and the sleaze. But that cannot detract from the importance of legal journalists. For a start, it is not necessarily a bad thing that anyone who attends court has to accept that they are going to be the object of public scrutiny, whether in respect of trivial matters or otherwise: the market will ultimately decide what the public wants and therefore what the journalists choose to publish. Secondly, and more importantly, the mere presence of a journalist in court ensures a form of watchdog for anything untoward that might happen during the proceedings. Judges who fall asleep, counsel who lose their temper, jurors who behave improperly or any other examples of human failings will quickly supplant the worthless gossip in the journalists’ attention, and be brought to book in the court of public opinion accordingly.
Some countries tightly control the press when it comes to court procedures (usually so they may also control the outcome of the procedures). Others may not have any legal impediments but, due to lack of resources and an equivalent press tradition, have proportionately fewer journalists than this country. None may be envied in this respect. We should be careful in Britain before knocking the fourth estate, however irresponsible it might be on occasion.
I have long been of the opinion that all proceedings in open court should be recorded on video and accessible via the internet, as a means of ensuring open justice. This would partially alleviate the problems caused by diminishing press interest, but that is an argument for another day.
There is a final point, and it is one on which I have to declare a professional interest. The role of reporting law is not that of those variously described as journalists, hacks or court reporters, but of proper law reporters, a different beast altogether. These are lawyers (in the case of the All England Reporter, all qualified barristers and solicitors) employed by legal service providers, who also attend court and report proceedings. In contrast to journalists, however, law reporters are only interested in reporting law and procedure, for online and hard copy law reports rather than newspapers, journals or magazines. They, therefore, are the source of public information about how the law develops. Their role does not overlap or detract from that of the journalists. Their readers are all lawyers or similar professionals, but that is unsurprising and unobjectionable. Law is, after all, a learned profession, as with medicine or any other, and it is only professionals who are in a position properly to understand most developments in precedent – which is not to say that no legal rulings are ever appropriately reported and discussed by the press and public, just that the majority of the output of the courts of record will inevitably only be read by lawyers.
I am pleased to be able to report that law reporters in the form of the All England Reporter are in no danger of diminishing. I am less pleased to have to reiterate that this does not detract from concerns about the declining number of court reporters.