6th Week Newsletter: The Case for Court Reporting

There are few principles more fundamental to our legal system than that of open justice. The idea is that journalists should be able to report on legal proceedings, ensuring that justice doesn’t operate behind closed doors. By and large, the government and judicial authorities agree that such openness is in the public interest, reflected in commitments to ensure the media’s access to courts. There are a number of compelling arguments in favour of this approach.

On a more abstract level, court reporting and open justice help the law achieve some of its aims. For example, if the law is to act as a guide to its subjects (a key aspect of the ideal of the Rule of Law), then it is essential that its content is open and accessible to the public. And though judgments are published by courts themselves, their accessibility is often limited by their length and complex language. Journalists, by contrast, can provide succinct and digestible summaries of newly established rules for circulation in widely read publications — this is a far more effective means of communicating the law’s content to the public, enabling people to adjust their conduct in conformity with it.

Turning from theoretical aims towards more practical concerns, media coverage also contributes to the integrity and effectiveness of the legal system. For example, the presence of journalists in court proceedings can improve the administration of justice: the prospect of media scrutiny might pressure witnesses to tell the truth, and the publicity afforded to cases by media coverage might influence new witnesses to step forward. And such publicity not only contributes to better decision making; it also contributes to the perception of the courts as better decision makers. By ensuring that decisions aren’t made in secret, court reporting helps to maintain public trust and confidence in the justice system, protecting the integrity of the law more generally.

Naturally, it is in the public interest that courts should operate effectively and make good decisions. But even when we shift the focus away from the technicalities of the law, it is clear we have an interest in knowing about court proceedings irrespective of the benefits this might bring for the legal system. Courts often adjudicate upon matters like autonomy, freedom, fairness, and morality, all of which feel instinctively important to us. A magistrate in the criminal justice system must decide whether or not to label the person before him a criminal, condemning him to potentially lifelong social censure. A district judge in the family court must decide whether the state should separate a child from its mother and place it in care. Intuitively, these decisions, which touch upon such fundamental aspects of the human experience, ought to belong in the public domain. And of course, the gravity of these decisions reaffirms the importance of reaching them correctly, once again pointing in favour of allowing reporters and the wider public to scrutinise proceedings.

It was in this context that the President of the judiciary’s Family Division launched a pilot scheme in January which allowed journalists into the family court for the first time. Previously, the family division had been closed off to the media, owing to the sensitive nature of decisions and the involvement of vulnerable children in proceedings. But the President decided that the time had come to acknowledge the public’s ‘strong and legitimate interest in understanding the work of the court and knowing if it is being done well.’ Under the scheme, certain journalists are entitled to report on what they see and hear in select family courtrooms in Leeds, Carlisle and Cardiff, in the hopes that this will improve the public’s confidence in the family justice system.

And yet, implicit in the scheme is a recognition that open justice has its limits: the court is entitled to deny access to journalists where this is necessary to protect the identity of vulnerable children or to serve other legitimate aims. Such limits reflect a wider approach under which access to the courts can be curtailed when this is deemed beneficial to the public. Proceedings involving terrorist suspects, for example, are often held (partly or wholly) in secret to preserve the anonymity of informants and protect national security efforts. On the one hand, we might question whether this paternalistic and restrictive approach is justified. Clearly, concern must be had for the interests of children and national security; but is this not all the more reason to let journalists witness and scrutinise the decisions made in this area?

On the other hand, however, restrictions on court reporting might not go far enough. Though objective reporting is quite obviously beneficial to the administration of justice, partisan reporting is less clearly so, and sometimes journalists exert pressure on judges to reach certain decisions (see, for example, the High Court judges branded ‘enemies of the people’ following their 2016 decision that the government didn’t have the legal power to begin the UK’s withdrawal process from the EU). If successful, such pressure might compromise the objectivity of the judiciary and threaten the supposedly impartial nature of justice.

This is the dilemma which supporters of court reporting must grapple with. In some instances, court reporting is clearly in the interests of the public; in others, it is not. And where the line should be drawn is not a matter which is likely to be resolved with much confidence.

Tom McBride,
Events Team

Poll Results:

Our poll this week was on the question of: “Should journalists have unrestricted access to court proceedings?”
The results are:

YES – 42%
NO – 58%

Poll Results:

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