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.

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.’