New trial rules stress importance of open justice

New court rules which came into force today appear to strengthen the hand of the press when it comes to challenging reporting restrictions imposed at criminal trials.

The requirements is contained in Part 16 of the new Criminal Procedure Rules 2011, which come into effect today.

Part 16.2 imposes a duty on courts dealing with applications for reporting restrictions to ensure that all the parties involved and “any other person directly affected” – which would include the press and media – is either present or has had an opportunity to attend or make representations – before exercising any powers to impose restrictions.

Judge Patrick Moloney QC told the IBC-Reed Smith Protecting the Media conference in London last week that the Rule was “new and useful”, adding: “Not perhaps new in its essence, but new in the way that it is clearly laid out.

“It is a useful source of material for any journalist or media lawyer called on, perhaps at very short notice, to challenge or set aside a discretionary reporting restriction imposed by a criminal court, particularly a Crown Court.”

Part 16, he said, applied when a court was imposing a restriction on reporting or on access, when it was varying or removing a restriction, or when it was ordering a trial in private.

“Also they cover the circumstances in which the court would allow an application to tape record a court hearing or to Twitter, in other words use electronic hand-held media to communicate during a court proceeding,” he said.

Part 16.2 required a court exercising the restriction powers to “have regard to the importance of dealing with criminal cases in public; and allowing a public hearing to be reported to the public”, Judge Moloney said, adding: “So It does not quite make it paramount but it gives it formal weight.”

It then had the mandatory requirement for any person directly affected to be present when an order was made, or to have had an opportunity to attend or to make representations.

“So there is an express provision that whenever a judge is invited to make a discretionary order in respect of reporting restrictions, he should give the press and opportunity to attend and make representations,” he said.

“The press means all the press – the fact that a chap from one paper is there does not mean that all the other papers affected are represented,” he added.

“If these procedures are honoured then there will be considerably more advance consideration given to the making of reporting restrictions or their variation and considerably more express notice to the press.”

But he warned that it was likely that it might take some time before all the courts honoured the new rule.

“The likelihood is that orders will continue to be made, until the words get round, without notice. But then you can turn up and in the politest possible way remind the court of these new rules and hopefully the word will get round and the press will be kept in the loop.

“I should emphasise that all of this applies to discretionary orders.”

Part 16 also places obligations on those who wish to make applications to vary or remove reporting restrictions to give the court and parties to the case advance notice, and contains provisions for the media to be notified of orders for reporting restrictions or for trial to be held completely or party in private.

Part 16 is on page 59 to 67 of the Criminal procedure Rules 2011, link below.

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