"intelligent and useful posts on many of the key legal issues"

- Adam Wagner, UK Human Rights Blog

Monday, 23 May 2011

The need for journalists to attend court

Shortened version published in Halsbury's Law Exchange here.

Adam Wagner of the UK Human Rights Blog has written about the controversy surrounding Christopher Booker’s reporting of a family law case. Booker’s original article gave rise to much comment for and against, including a response by the court itself. Booker himself then dispatched some thunderbolts back, and Wagner has responded in turn albeit in a somewhat more measured tone.

I do not wish to pass any comment on the actual case which Booker’s original article concerned, since I have not read about it in any detail. He may be wholly right, wholly wrong or something in between. Instead, I wish to comment on the general point of interest in Wagner’s original article, namely whether it is necessary in order to report proceedings for a reporter actually to be present in court during the hearing before commenting on a particular case.

The answer, inevitably, is that “it depends”. If a journalist is simply reporting the ruling in the case, then a properly written judgment should be able to be understood (by an appropriately qualified person) without reference to any other documents, let alone the hearing itself.

If on the other hand a reporter wishes to comment on any findings of fact, then they would be in a much stronger position if they attended the hearing and observed the witnesses – for precisely the same reasons that the Court of Appeal is unwilling to overturn first instance findings of fact.

If a reporter is unable to attend, or only becomes aware of the story after the event, then, as Wagner points out, it is usually possible to obtain transcripts and other records. Though an imperfect record (a witness”s demeanour can say as much as their words) such documents would certainly put the reporter in a stronger position than merely conducting a rehearing of their own with the disappointed party, which is the nub of much of the criticism that has been levelled at Booker.

It cannot therefore be seriously disputed that reporters will gain a much better picture of findings of fact by attending hearings. Again, as Wagner states, there are nothing like the impediments to doing so that Booker seems to imagine – the rule of open justice is one of the most fundamental in the common law. In 1913 the House of Lords stated that: “In public trial is to be found on the whole the best security for the pure, impartial, and efficient administration of justice, and the best means of winning for it public confidence and respect” (Scott v Scott [1911-13] All ER Rep 1). Nowadays that rule is bolstered by the fair trial requirements of art 6 of the European Convention on Human Rights, though given how well entrenched it already was in the common law, I doubt there has been any practical difference.

Of course, Booker would respond that the family courts are not sufficiently open to the public. But they are much more open than before, and the press can usually challenge a ruling about a case or particular evidence being heard in private.

Wagner observes that journalists attending court will have to sit through multiple delays and many days of boring, irrelevant material. This is true, although at least nowadays with modern communication devices they have less of an excuse not to be doing something worthwhile while they sit there. Nevertheless, Wagner cautions that they may be tempted to sex up stories to justify the time committed.

Here I am reminded of Robert Winder's superb travelogue of a cricket correspondent, Hell For Leather: a modern cricket journey, where he describes his experiences on the subcontinent covering the 1996 World Cup. The goal of all the hacks was to secure a headline. The goal of the players and management was to prevent them from doing so. Therefore at every press conference they would stoically meet every question with an answer as bland as an in-flight menu. This presented no problem to the hacks, however, who were well practiced in the art of turning a side remark about a player recovering from a minor injury into a screaming headline about a player getting slammed by the coach for being ill-prepared.

The problem facing the hacks, however, was that if they missed a “story” being run by one of their rivals, they would receive an angry call from their editor demanding some equivalent copy, and given the time difference in the subcontinent the call would usually come in the middle of the night. The more experienced hacks wistfully recalled tours to the West Indies, where the time difference and the now ancient state of the technology meant that nothing could be altered beyond 6pm local time, leaving the hacks to while away the hours by the hotel pool free from any inconvenient work-related interruptions.

Ever ingenious, the solution of the hacks on Winder's tour was to band together and agree amongst themselves what the story of the day was to be, and then simply compose their own variations on the theme. It meant fewer scoops but much better sleep.

Perhaps court reporters might be tempted into the same thing, though in my experience court reporters are a diligent group who of course make mistakes on occasion (like everyone else) but by and large aim for accuracy even if they choose to emphasise an aspect of the case that lawyers would consider trivial or irrelevant. But the short answer to improper journalism is better editorial standards, not less journalism, and one should not discourage journalists from covering hearings – or anything else – because of a risk that they might get bored and invent something to justify their time.

It is, therefore, a cause for regret that fewer journalists may be found in court nowadays, all the more so if it is simply because they don’t feel it worth the effort. The rule of open justice exists for a reason – justice has to be seen to be done. The presence in court of journalists is a tangible contribution in this respect. Further, as I have written before: “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 … be brought to book in the court of public opinion accordingly.”