Crown court breached open justice with note-taking ban

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A judge who prevented a man taking notes on behalf of a 'difficult' litigant in person in an attempt to assert the Crown court’s authority breached the principle of open justice, the Court of Appeal has ruled.

The case was heard after the Crown court sitting in Cardiff and Newport directed that no member of the public could make notes about the proceedings and twice ruled that Terence Ewing could not take notes.

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Ewing was taking notes on behalf of Maurice Kirk, who was appealing a magistrates' court conviction of common assault and could not make his own notes as he could not find his glasses. Ewing was prevented from taking notes after Kirk’s glasses were found.

In a judicial review, the appeal court heard that although a judge may restrict note-taking in public hearings if there is a danger of interference in the proper administration of justice, there is no law or practice of preventing all those in court from making notes without permission.

The director of public prosecutions said the restrictions were justified to enable the court to ‘maintain its authority in what it anticipated, entirely correctly, would be a testing appeal’.

The primary reasons the court gave for not allowing notes was that after Kirk’s glasses were found, Ewing had no good reason why he needed to make notes, and that there was a fear that ‘prejudicial material’ might leave court with an ‘inexperienced reporter’. 

In his judgment in the Court of Appeal, Lord Justice Burnett said that contrary to the position the court took in this case, the default position should allow those attending public hearings to take notes as a feature of ‘open court justice’.

He also rejected the notion that note-taking would interfere with or pose any threat to the administration of justice, as he noted that there was no concern during the proceedings about reporting by the media or about Kirk taking his own notes. 

Burnett also rejected the DPP’s argument that the court had a good reason to restrict note-taking. However he observed that: 'The transcripts provide strong support for the proposition that [Kirk] was manipulating the process and being deliberately difficult and contrary.'

According to the judgment, pursuing and defending court cases was a ‘dominant feature’ in Kirk’s life, and his habit was to take as long as possible, raise endless technical objections and seek to use one set of proceedings to assist him in another. Kirk disputes this analysis.

But Burnett said: ‘It comes to little more than a suggestion that an inroad into the principle of open justice was necessary to show who was boss. It is hardly surprising that such a reason is absent from the transcript and the letters written on behalf of court. It would be a bad one.’

He added: ‘In difficult circumstances, and misapprehending the correct starting point when a member of the public wishes to make notes, the court denied the claimant the right to make notes from proceedings in open court in breach of the common law principle of open justice.’

Readers' comments (10)

  • The judgment won't open on my iPad.

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  • It does open though, so perhaps try again?

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  • The judge has banned it's opening, Richard!

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  • Hotel, thank you it opened this morning.

    While having every sympathy for the trial judge, the answer was I fear obvious. Though there was an appeal against conviction by an LIP (over 500 grounds) heard on the last namely that the trial judge had refused him permission to address the jury at the end of evidence. The prosecution suggested that he explain his case first, and 7 plus days later . . . . . . .

    On the other hand the case makes you proud that we still have a rule of law that allowed the application.

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  • A good result. However annoying these two people might be this was an important principle.

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  • Hotep, sorry for typo. Early am predictive text!

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  • This Ewing guy is a complete prat, and must have cost the court service a fortune, not to mention the poor victims of his absurd litigation - just Google his name for a few minutes' free entertainment.

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  • Ah, the perverse decisions of judges

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  • Good for Mr Ewing!
    At least someone is getting their money's worth of court time.
    Its not me - I am just about to pay a third £10,000 court fee in the last 6 months
    If this guy is such a prolific litigant why give him more ammunition by making stupid and petty decisions against him. It must have made his day

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  • What is the position when there is not a transcript ? Whose note will be preferred assuming that permission may be required and
    then denied ?

    Reminds me of the dismissal of a complaint where the Regional President relied upon a finding of non-existent hearing to fill in the gaps noted of the previous hearing. Quite a trick to have a record and finding, from a hearing that has nether been listed, called or attended ) especially without producing the record relied upon to JACO.

    Best to make sure that all hearings are recorded ( even then I am sure certain recordings will mysteriously disappear ) and dispense with the stress and subjectivity of note taking.

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