Solicitors need to take more seriously their duty to uphold open justice

The magistrates courts are often described as the ‘Wild West’ of the justice system. With their vast caseloads, volunteer justices and eccentric personalities, they can often feel utterly chaotic. But ultimately these are still courts of law and the public have a right to expect that the decisions made there will hinge somewhat on existing statutes and legal precedents. 

Worryingly, magistrates at Swindon recently failed to meet that very basic standard, when they imposed an order which prevented the media from naming or publishing the address of Kieren Brian Holford, who had kicked his emotional support puppy to death. 

Such an order would not necessarily represent a truly egregious error. A power does exist - under section 11 of the Contempt of Court Act, 1981 - to prohibit publication of a name and address, though one only need recall the high-profile case of police firearms officer Martyn Blake (formerly NX121) to appreciate how restricted that power is. 

The true failure here was not consulting the law at all before imposing the order, which stated: ‘a common law discretionary reporting restriction is made pursuant to Part 6 Criminal Procedure Rules 2020’. Upon consulting Part 6 CPR 2020, one merely finds a list of statutes which the rules say criminal courts have the power to impose. Which one was this order made under? I was left to guess when it was shown to me.

As a journalist who reports on courts regularly - and to whom this development was very disturbing - I felt moved to send the magistrates a pre-action letter, proposing to take them to the High Court for a judicial review unless they could provide a full explanation of the legal basis of that restriction.

Just two days later, I received a message from the legal adviser in the case, which said that ‘on a further reading of the common law principles relating to press restrictions’ it appeared to them ‘that an error in law was made in making the order to restrict reporting in this case’. They proposed to re-open the case to remove the press restriction.

This grated somewhat because it gave me the distinct impression that it was only after receiving my legal letter that anyone at the court had bothered to check whether the power they purported to have used actually existed.  

But I was reluctantly satisfied with this outcome, until the defence solicitor in this case - the one who initially persuaded the magistrates to impose this order - argued the reporting restriction should remain in force.

In written submissions, the solicitor argued that, due to the defendant’s disability, ‘under UK law this allows him to be protected beyond that of a person without a recognised disability and the court must take into account that disability. 

‘I believe the Court can rely upon the Human Rights Act namely article 3 and article 8 to uphold the press restriction’, he added. ‘All courts must uphold human rights in all cases they hear and interpret existing legislation compatibly with human rights where possible [his emphasis]. It it submitted that the court can refuse to re-open this case on the basis that it was protecting his human right under article 3.’ 

The solicitor signed off by stating that, if the court did re-open the case, he was unable to represent the defendant as his representation order would not cover those proceedings.

To me this seemed to add insult on to injury. Not only were the magistrates persuaded to use a power which they did not possess, but the solicitor who asked them to do so - when confronted with that fact - doubled down and argued they should stick by the decision. I am all for the art of the game in court, but this ran a bit close to the line for me.

On Friday the case was re-opened and the restriction was duly discharged, but I am left troubled that a bench of magistrates, with the assistance of a legal adviser and solicitors representing the parties, was able to wander so terribly astray. The best explanation I can offer is that - in our adversarial system - we increasingly have nobody advocating on behalf of the media in court, amid a nationwide decline in court reporting. 

Either solicitors need to take more seriously their duties to uphold open justice - whatever party they represent - or some kind of open justice advocate is going to need to be set up to stem the rising tide of secrecy orders.

Charlie Moloney is a media law consultant, trainer and journalist. He sits on the National Council for the Training of Journalists (NCTJ) media law examinations board and is a member of the courts and tribunals media working group at the Ministry of Justice