A circuit judge has approved a transcript request made by the mouseinthecourt after we persisted through several layers of resistance.
We don’t claim that this is a particularly thrilling read suffice to say it’s a textbook example of the day-to-day difficulties that even simple requests for information cause.
Whilst we make no suggestion that the court or the judge was acting in any kind of a sinister way the approach taken has the effect of diminishing the public’s trust in the administration of justice. The question must be asked – what are they trying to hide?
“The attempt to hide information instead makes it more interesting to seek out and propagate“ Streisand effect
Occasionally it’s cheaper to request a transcript than attend a short hearing in some far flung place – that’s exactly what we did in a case, which for legal reasons, we’re unable to identify at this stage. Suffice to say the hearing was before a full time Crown Court judge sitting in open court with no reporting restrictions in place (beyond being pre-trial).
We asked initially for a copy of the indictment:
Dear court staff,
I wish to request a copy of the indictment in the following case:
[Case name]
I rely upon Criminal Procedure Rule 5.8(6)b in making this request.
I am unable to assist at present as no indictment has been preferred in this case and no please(sic) have been entered.
Ok, I’ll just ask for a transcript of the hearing:
Ok thanks for getting back to me.
Are you able to accept the attached EX107 on this e-mail address?
The EX107 is the form to ask for a transcript. One of the key questions, and my answer is shown here, an answer I always put.
Access denied.
Good Morning,
The Judge has declined your request for a transcript of the hearing on the [date]. He has stated that “Documents can only be provided to ” interested parties ” but the information sought will become Public knowledge at the next hearing”.
We’re not sure where this restriction comes from – and we said as much in our reply:
Dear [Court delivery manager],
Thank you for your e-mail.
Can you confirm the name of the judge who made this decision please?
Can I refer the judge to the following section of CrimPD 2.6
“2.6.19 – The default position is that the transcript is provided unredacted…Exceptionally, the judge may order that the transcript must be redacted before it is supplied to a Recipient…
2.6.20 – …Given that the proceedings will have taken place in public, and despite any such suspicions [of criminal behaviour on my part], cogent and compelling reasons will be required to deny a request for transcript of such proceedings. The onus rests always on the court to justify such a denial, not on the applicant to justify the request. Even where there are reasons to suspect a criminal intent, the appropriate course may be to direct that the police be informed of those reasons rather than to direct that the transcript be withheld.”
I understand the hearing was listed in public and was held in open court.
The information I seek is wider than just the indictment, which given the comments made by [Court delivery manager] on [date] is no longer pursued. Notwithstanding the public interest in criminal proceedings generally, there is a strong public interest in [the circumstances of this case].
I do not consider that solely the matter of the indictment possibly becoming public knowledge at the next hearing is a “cogent and compelling reason” to deny my request for a transcript which will contain much more information, including but not limited to the administration of justice.
For the avoidance of doubt, I am aware of the automatic reporting restrictions that apply while criminal proceedings are considered active.
I would respectfully ask the court to reconsider my request for a transcript and if my request is “exceptionally” denied then I would ask the court to provide “cogent and compelling reasons” for the curtailment of my article 10 rights.
Many thanks,
Daniel Cloake
We’re now told the court will consider our request for a transcript provided we provide so-called press accreditation.
Good Afternoon
Judge [X} thanks you for your prompt reply. Your request was for a Copy of the Indictment. We indicated immediately that the only reason we could not assist was that there is currently no Indictment. Judge [X] would of course have confirmed that had there been one, the Court would have assisted you by sending a copy.
Your application now is for a Court Transcript. His Honour confirms that upon receipt of the Press Accreditation in the usual form he authorises that an Application in the usual form to the Transcription Service Provider at your own expense ( as you application confirms ) may be granted. We trust this assists and look forward to receiving the accreditation. In the hope it assists further, we confirm that an adjourned hearing is listed for [Date].
Getting a bit bored with the to-ing and fro-ing I sent a firm request for where this apparent requirement came from:
Good afternoon, I thank you and the judge too for a prompt reply.
I had sent you an EX107 in the attached e-mail which is an application for a transcript. I did not seek to challenge the decision not to send me the (draft) indictment.
I’m confused by the requirement for press accreditation. I earn more than half my income from non-news gathering activities and so don’t qualify for a press card.
In any event Crim PD 2.6.7 states: “Under CrimPR Part 5, the same procedure applies to applications for access to information by reporters as to other members of the public.”
Reporters are considered members of the public as far as the procedure rules are concerned, there’s a special protocol between the press and the CPS but I don’t seek to engage that here.
Perhaps I could be shown where the requirement for a press card is, otherwise, I trust my EX107 will be processed.
Many thanks, Daniel Cloake
The response reads like an offended head teacher scolding a pupil. Somehow my punishment for purportedly not providing “accurate and truthful information” is to have the article 10 rights of myself and my readers curtailed.
His Honour has further considered this matter in light of your reply but doing so having placed that and the Court’s earlier request in the light of your EX107 Application. That Application makes it clear that it was made as a Press Application, hence the standard request made of you that followed. The Court is concerned to find now that, having made the standard request, you state that it is not in fact a Press request but one made by a member of the Public. You will appreciate the importance of the Court making every decision based on accurate and truthful information. In all of the circumstances the Application cannot be granted on the basis of its contents but again in the hope it assists, having established an important principle, we advise you again that in fact no decisions were mad (sic) at the last hearing save for one to adjourn proceedings pending further enquiries which will be confirmed at the next hearing which of course you are welcome to attend as a member of the Public.
Despite being reassured that “no decisions were mad at the last hearing” this courtroom mouse persisted, unleashing the threat of a judicial review as we did, and still do, consider the denials unlawful.
Dear [Court delivery manager], Thank you for forwarding on the comments from the judge. My response is set out below:
It is denied that I have, at any point, purported to be in possession of a press card or a member of the press.
It is denied that I made what is described as a “Press Application”. The box ticked on the EX107 under “Your involvement in the case” is “No involvement”. My “organisation/company name” is blank.
It is not known what a “press application” is. The term does not appear in the EX107 or in the EX107 guidance notes and is therefore undefined. The court is put to proof that it is even possible to make a “press application” and/or that there is any advantage in doing so.
It is averred that box 9 “What is your reason for requesting this transcript?” has been answered “For the purposes of journalism”. That is entirely correct. I do not, and have not claimed to be accredited by the NUJ or other media organisations. The court is put to proof that someone acting for the “purposes of journalism” can only ever do so when in possession of a press card. Had the court asked for clarification I would comment that I run an online blog and twitter account. In the last year I have had my work published in The Sun, The Times, Daily Mail, The Telegraph and The Express. But as previously said “I earn more than half my income from non-news gathering activities and so don’t qualify for a press card”. That is the only requirement for a press card. It would have been remiss for me to not to have put “For the purposes of journalism” in box 9.
It is denied that there is any requirement to be in possession of a press card for making a transcript request and therefore any such request for production of a press card is ultra vires.
In any event Crim PD 2.6.7 states: “Under CrimPR Part 5, the same procedure applies to applications for access to information by reporters as to other members of the public.”
It is denied that I gave any inaccurate or untruthful information to the court and I require this inaccurate statement to be particularised or withdrawn.
Notwithstanding the denial in paragraph 1, the ability of the court to refuse a transcript request on the basis of an apparently incorrect assertion of possession of a press card is unfounded and unsupported by authority. The court is again reminded of Crim PD 2.6.20: “2.6.20 – …Given that the proceedings will have taken place in public, and despite any such suspicions [of criminal behaviour on my part], cogent and compelling reasons will be required to deny a request for transcript of such proceedings. The onus rests always on the court to justify such a denial, not on the applicant to justify the request. Even where there are reasons to suspect a criminal intent, the appropriate course may be to direct that the police be informed of those reasons rather than to direct that the transcript be withheld.”
The refusal to allow an application for a transcript is a derogation from the principle of open justice. The court will be assisted from para 28 of the judgment of Haddon-Cave LJ in Moss v Information Commissioner [2020] EWCA Civ 580 (15 May 2020) in which the court of appeal cites a case warning “against the erosion of open justice” explaining: “This is the reason it is so important not to forget why proceedings are required to be subjected to the full glare of a public hearing. It is necessary because the public nature of proceedings deters inappropriate behaviour on the part of the court. It also maintains the public’s confidence in the administration of justice. It enables the public to know that justice is being administered impartially…Any interference with the public nature of court proceedings is therefore to be avoided unless justice requires it.”
Given what I have written above I consider that the decision of the court to refuse my request for a transcript is irrational. And is in fact so unreasonable that no reasonable public authority could have made it.
I also consider the refusal of the request breaches the Human Rights Act, namely my article 10 to receive and impart information.
For the reasons set out in paragraph 10 and 11 I put the court on notice that if my request continues to be denied without lawful justification then a pre-action letter for judicial review will be issued. I would be grateful if you could advise of the appropriate person and an address of someone who is able to receive service.
I wholly reserve my position on costs in this regard.
Yours sincerely, Daniel Cloake
Lo and behold, after a significant amount of work done by this unfunded blog, the court backed down.
His Honour thanks you again for your latest message. The Court is pleased to note that, although it was never suggested that it had been stated by you that you were the holder of a Press Card , it is now understood why the standard request for one to be produced was made in the context of the Application having been made not by, ” a Member of the Public ” but by a “Journalist”. ( it was , hopefully reasonably, assumed that this was the case where an application was being justified on the basis that it was “for the purpose of Journalism “)
We are sure that you will understand why Applications such as these should always be carefully scrutinised, whether merely for a transcript of an adjourned hearing or not. It is after all not the case that such Applications are simply automatically granted otherwise Judicial Approval would not be required.
The Court is pleased to confirm now that , having taken the care required, it is satisfied that your request can be granted and no doubt you will receive a quote of cost for your consideration.
Indeed I did receive a quote and subsequently the transcript.
But all in all a painful process. Most members of the public would have given up after the first e-mail (which in retrospect may have been a sensible proposition).
A very recent request for a transcript from Southwark Crown Court, involving the FCA as the prosecuting authority, resulted in the court’s ‘Executive officer” asking:
Good afternoon,
We apologise for the delay. We are still processing this item. Is there a particular reason why this request is being asked for?
Best,
My response of “Yes, I’m interested in what happened at the hearing” was considered sufficient for the application to be approved. It’s not known why the question was being asked in the first place.
Mouse in the Court 