Criminal Procedure Rule Committee change rules promoting open justice

In the same month that the Ministry Of Justice wants “to hear your ideas on how the government can reinforce and enhance open justice in today’s era” the procedure rule committee responsible for the criminal jurisdiction is removing rules allowing note-taking by laptops and live-tweeting by legal commentators.

The Criminal Procedure Rules govern the way criminal cases are managed, and set out the processes of the criminal courts.

Criminal Procedure Rule Committee is an advisory non-departmental public body, sponsored by the Ministry of Justice.

‘Criminal Procedure Rule Committee: What we do‘

The changes were announced in a ‘Message from Lord Burnett‘ on 19th April 2023:

“Today (19 April 2023) I am issuing the new Criminal Practice Directions 2023, which replace the current Criminal Practice Directions 2015 as amended. They will come into force on Monday 29 May 2023.

“These new practice directions will continue to promote consistency of practice and provide essential guidance in a more succent, easy to follow style.“

The ‘Summary of changes‘ introduces a new chapter devoted to open justice:

“Chapter 2: Open Justice
This chapter replaces parts CPD I General Matters: 5B, 6A, 6D and 6E of the Criminal Practice Directions 2015. It provides guidance on the application of the open justice principle in issues such as access to court hearings, taking notes in court, and access to material held by the court.“

I pause to note the paragraph which ends the leading 2019 Supreme Court judgment on open justice. Lady Hale in Cape v Dring, concluding that “About the importance and universality of the principles of open justice there can be no argument” said that the court:

“…would urge the bodies responsible for framing the court rules in each part of the United Kingdom to give consideration to the questions of principle and practice raised by this case.“

It was with high expectations that this humble court mouse read Lord Burnetts update and the promise of a dedicated chapter on open justice.

The disappointment started in the first paragraph of the new Practice Directions (my bold):

2.1.1 The general principle is that the administration of justice must be done in public, the public and the media have a right to attend all court hearings, and the media is able to report those proceedings fully and contemporaneously.

The idea that only the media have a right to report on hearings is wrong. It is an affront to the Article 10 rights of the public to impart information, and contrary to existing authorities.

By way of example, Lord Justice Burnett, who as the Lord Chief Justice introduced the new rules, himself said in 2016 (at para 14):

“…those present in court should be able to make notes regarding the proceedings, either for the purposes of reporting (which is not limited to professional reporters and those connected with the media)…”

More recently Mrs Justice Roberts, in a Court of Protection judgment from 2021, talked of “Accredited journalists and bloggers” who in publishing information “act as the conduit for public dissemination of the court’s working process and procedures and, as such, they fulfil a vital function in any democratic society“.

The update to the practice directions doesn’t prohibit reporting by members of the public, it just makes it more difficult. It’s already tricky to argue your point, as Molly Pipe, a journalism student, found out.

The omission of the public in being able to report must surely be deliberate, it could be argued in any subsequent discussion in court.

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Paragraph 2.3.1 of the new rules states:

2.3.1 The permission of the court is not required to take notes in court

To see what’s wrong with this statement one has to compare it to the previous version, contained within 6D.1:

As long as it does not interfere with the proper administration of justice, anyone who attends a court hearing may quietly take notes, on paper or by silent electronic means…

What has been removed is the right to make notes electronically. Using a laptop hasn’t been prohibited per se but it introduces an unnecessary grey area, a vagueness, that is liable to inconsistent interpretation across different courtrooms, let alone the country.

In R (Todner) v Legal Aid Board, Lord Woolf MR warned against the erosion of open justice:

“The need to be vigilant arises from the natural tendency for the general principle [of open justice] to be eroded and for exceptions to grow by accretion as the exceptions are applied by analogy to existing cases“

The public should be alert to the gradual chipping away of these rights.

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Live-tweeting

The new practice direction at 2.4.1 states:

Members of the public require the court’s permission to transmit live text-based communications from court; accredited journalists do not.

The previous version stated inter alia:

6C8: As such, a representative of the media or a legal commentator who wishes to use live textbased communications from court may do so without making an application to the court.

Firstly, we don’t have ‘accredited journalists’ in this country. We have a private limited company which accredits members of the press, which includes camera operators, drivers and sound recordists.

Previously HMCTS, in notes released under FOI from the ‘Media Engagement Group’, has itself revealed some of the problems the press card system with HMCTS “acutely conscious of the need to avoid any impression of state licensing of journalists“.

“…moving exclusively to insisting that any members of the media should be able to present a UK press card has the potential to restrict access to a wide range of people including student journalists, legal bloggers, freelancers and foreign journalists.“

These comments were dated 16 September 2019, and it’s disappointing that further work has not been done on this.

The new directions also remove reference to a ‘legal commentator’, which was contained within the previous version.

The second point on the new direction is that one has to compare the new 20-word-version in 2.4.1 with the fourteen paragraphs of guidance in the previous directions which concluded:

Subject to these considerations, the use of an unobtrusive, handheld, silent piece of modern equipment, for the purposes of simultaneous reporting of proceedings to the outside world as they unfold in court, is generally unlikely to interfere with the proper administration of justice.

The previous practice direction contained a great deal more guidance for any court asked to consider such an application. It’s disappointing that this has been removed.

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Court-watch

These changes look set to affect a recently announced project of Transform Justice, a charity whose ‘vision is a fair, open, and compassionate justice system’.

On the 2nd May they announced that:

“This year Transform Justice seeks to shed light on what happens in magistrates’ courts by piloting a mass court observation programme, where members of the community observe the daily hearings in court and report what they see.“

I hope to take part, however I will be packing a notepad just in case my laptop is ordered to be slammed shut.