Protection for police on trial

It appears that policemen sometimes receive inappropriate protection
from courts when they are involved in criminal proceedings, as the
following story illustrates.

A detective constable recently stood trial in his local magistrates’ court accused of racially aggravated harassment. While off duty, he was alleged to have racially abused a nightclub doorman.

During
the lunch adjournment on the first day, a regional newspaper
photographer took a picture of the defendant as he returned to court.
When the trial resumed in the afternoon, his solicitor asked for the
courtroom to be cleared – a request which the magistrates granted.

The newspaper’s court reporter was among those asked to leave.

She
was later informed, outside the courtroom, that an application was to
be made seeking a ban on the publication of photographs and that she
would have an opportunity to state her objections.

The
defendant’s solicitor then sought an order under Section 11 of the
Contempt of Court Act 1981. Publication of a photograph, it was
claimed, would be detrimental to the defendant’s work as a police
officer. His solicitor argued that his safety would be compromised and
a photograph would be of no relevance to the case.

The
magistrates heard objections from the newspaper’s reporter, which were
read out, but granted a Section 11 order as “necessary for the
administration of justice”. No photograph of the policeman was to be
published “in relation to these proceedings”.

A report of the
first day of the trial was published the next day under the headline
“Police officer denies racist abuse charge”. The policeman was
identified by name and his occupation given, but no photograph was
published.

On the third and, as it turned out, final day of the
trial, I sent a letter containing submissions to the clerk of the
justices on behalf of the newspaper requesting that the magistrates
reconsider their order.

This appeared the most practical way of
having the decision reviewed in a timely way, and indeed the
introduction to the Judicial Studies Board booklet, Reporting
Restrictions in the Magistrates Court, states: “Courts are… encouraged
to exercise their discretion to hear media representations on the
lifting of… restrictions to permit contemporaneous reporting of…
proceedings.

“Such discretion should be exercised in addition to
any formal rights which the media might have for appeal or review of
such orders or to apply for lifting of automatic reporting
restrictions… “The law… has recognised the ‘perishable’ nature of news
and courts have acknowledged the importance of hearing and resolving
issues relating to reporting as soon as possible.”

I was then
telephoned by the clerk, who said that the magistrates had no right to
reconsider their order and who declined to refer the matter back to the
magistrates for any further consideration.

Later that same day,
the policeman was found guilty. He was fined £500 and ordered to pay
costs of £700. The outcome was reported the following day, but again
with no photograph.

The magistrates’ decision could still have been challenged, of course, but only by an application for judicial review.

The general rule is that justice must be administered in public.

Section
11 was not enacted to provide for the comfort and feelings of
defendants. That section provides the court with a power to prohibit
publication of a name or other matter only where the court has a
pre-existing power to allow such matter to be withheld from the public
in proceedings, before it and has, in fact, exercised that power. In
this case, not only was there no obvious power, but the policeman’s
name, address and occupation had already been given in open court. It
would appear therefore that the magistrates had no jurisdiction to make
the order.

Conceivably, arguments might have been raised at a
judicial review concerning the Human Rights Act 1998 and the
policeman’s Article 8 Convention right to a private life – but he was a
defendant in criminal proceedings and, to the extent that his Article 8
right was engaged, any interference with it would surely be considered
necessary and proportionate when the Article 10 (freedom of expression)
rights of the newspaper and its readers were taken into account. An
application for judicial review would therefore appear to have had good
prospects of success. To challenge such aberrant orders after the event
is, however, a luxury. Appeals can drag a matter out further and add to
the, perhaps irrecoverable, costs.

No further challenge is now proposed.

Nick Alway is a partner in the media team at Farrer & Co

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