Pigeon-steps towards open justice

Slowly - sometimes painfully slowly - the internet is laying bare the quiet little establishment/media stitch-ups which, in the early years of my career, blocked the scrutiny of public life.

For example 'D Notices', once issued in person to trusted editors (I remember the thrill when I saw my first one), are now published to all and sundry as DA notices on the web, and very dull they are too.

Likewise the online posting of briefings by the prime minister's official spokesman has shown the parliamentary lobby - which once claimed privileged access to political developments - as a risible anachronism.

If all goes well, another establishment/media deal could be about to be unstitched. In its second report on the laws of contempt of court, the Law Commission last month recommended that a small privilege extended to mainstream editors be extended to anyone minded to blog, tweet, or otherwise publish information about current or pending court proceedings. 

Section 4(2) of the 1981 Contempt of Court Act grants courts in England and Wales, in exceptional circumstances, to order that reporting of proceedings be postponed.

The power is supposed to be used only when reporting would create a substantial risk of prejudice to the proceedings in question, or to other imminent or pending legal proceedings. 

While I am a near-absolutist believer in open justice, this power clearly makes sense in some jury trials. However, as the commission points out, its current application is flawed. The current system is still based on the idea that courts are reported by full-time trained specialist journalists, reporting to full-time, trained mainstream editors. 

As neither is the case today, there is no reliable way of ensuring that orders are communicated to anyone likely to be reporting a trial.

As the commission soberly notes, the prospect of a publisher facing contempt proceedings in circumstances where the existence of the section 4(2) order was not easily discoverable 'is clearly unattractive'. Conversely, uncertainty about the existence of an order increases the possibility of a publisher unnecessarily suppressing a legitimate accurate report of proceedings.

(This has happened to me, reporting a complex fraud trial involving a mixture of pleas: I could not confirm to my editor that a section 4(2) order had been lifted, so we ended up not covering the outcome of an important case.)

The commission's solution is obvious: to set up a publicly available online list of section 4(2) orders, as already exists in Scotland. This would constitute a fair warning to publishers that an order exists; anyone who failed to obey it could have the book legitimately thrown at them. 

To concerns that an online notification might compromise the very confidentiality that section 4(2) orders are designed to protect, the commission says that this has caused no problems in Scotland. In any case, it recommends limiting the publicly available information to the name of the case and when the order is due to expire. 

In the great scheme of things, the commission's proposal sounds like a tiny pigeon-step towards more open justice. However it is welcome for two reasons.

First, publication of section 4(2) orders could help in the long-running campaign to get court listings released more widely than to the circle of mainstream editors currently trusted with the information. The Crime and Justice Sector Transparency Panel, on which I sit, has been banging its head against the Ministry of Justice on this for a couple of years.

The latest hurdle thrown up is that it would be illegal to release listings without information about reporting restrictions. The commission's plan, if properly executed, suggests a way forward.

The other reason is that transparency over reporting restrictions is another step towards dismantling another of those media/establishment stitch-ups which, even in the web age, still plague British public life. 

Michael Cross is Gazette news editor