A view of a sign at Greenwich Magistrates Court is pictured in south-east London, on July 10, 2008. Photo: Getty Images
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Magistrates should be stripped of their powers to restrict court reporting

Coverage of our courts is being censored - because magistrates are too quick to impose unnecessary reporting restrictions. In the interests of open justice, this has to stop.

 

Twelve years ago prison governors asked for magistrates courts to be stripped of their powers of imprisonment.

The prison population had soared to 70,000 and there was no more room - it was a crisis. (The number of people in jail today is 85,902, but relax! We’ve built more prisons to house the highest per capita prison population in Europe.)

Today I would like to propose another curb on magistrates’ powers. They need to be stripped of the ability to interfere with the reporting of the courts, because, to put it bluntly, many of them have not got the first idea of what they are doing.

Courts have various ways in which they can limit the reports that come out of their court. These are separate to the anonymity for victims of sexual offences and children in youth court, which is automatically applied by law and has nothing to do with a court order.

However, all courts - Magistrates, Crown and upwards - are given statutory powers to limit reports in various circumstances.

If a child is involved in an adult case, as a witness for example, they can place a so-called Section 39 order on that child making them anonymous.

If the court feels a detail from the proceedings might prejudice a trial it can make an order postponing reporting of it - a Section 4 order under the Contempt of Court Act 1981. Or if there are fears for national security, a complete ban can be issued under Section 11 of the 1981 Act.

The problem is that when it comes to interpreting the law concerning open reporting of the courts, magistrates and (sad to say) sometimes judges seem to be acting on a whim.

Recently I have seen the following:

  • A court unlawfully place a Section 39 anonymity order on the children of a woman accused of murder, even though they were not involved in the proceedings in any way and therefore could not in law be the subject of such an order
  • A court consider refusing to allow a sexual offence victim to waive her anonymity, even though in law she could do so and the court had no power to stop her - and to do so would be a violation of her Article 10 right to freedom of speech
  • A magistrate refuse to give her name to reporters covering a case, in contradiction of a ruling made in R v Felixstowe Magistates saying that they must give their names to the media so they can properly and openly report the proceedings
  • A section 39 order placed to anonymise a child who was dead, and who would therefore, obviously, play no part in the proceedings whatsoever

It may be that the magistrates concerned have not been given training in this aspect of the law - although their powers, and the restrictions on them, are very clearly set out in the booklet Reporting Restrictions in the Magistrates Court by the Judicial Studies Board, copies of which should be available in every court, and if not are easily obtained online.

It is also possible that they have received guidance, but are persuaded too easily by lawyers representing a defendant, to make an order which curtails reporting unnecessarily.

Either way these orders can severely hamper the open reporting of the courts and as so often has been stated in the past, justice unreported is no justice at all.

So these powers should be removed from lay magistrates and placed instead in the hands of a district judge or higher, so that proper legal argument can take place.

This would still not be perfect – district judges and those in crown court are capable of making daft orders on occasion, but are generally more open to persuasion otherwise if they can be shown case law or statute contradicting them.

The courts are woefully under-reported these days and they should be making every effort to be more open and accommodating to those who would inform the public of what goes on there. Making unlawful orders that close down coverage does nothing to help.

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Theresa May's big thinker - an interview with George Freeman

The Conservative policy board chair on the meaning of Brexit, state intervention and whether "Mayism" exists.

Theresa May’s three months as Prime Minister have been marked by ruthless changes of both personnel and policy, from grammar schools to fiscal targets. The man tasked with overseeing the latter is George Freeman, a newly bearded 49-year-old who jokingly describes himself as “a designated thinker”.

“It’s a huge privilege,” Freeman told me when we met recently in Westminster. “As [May] has indicated, she’s determined to open up the policymaking process to good ideas from a much wider pool.”

After entering parliament as the MP for Mid Norfolk in 2010, Freeman distinguished himself as one of the most intellectually energetic Tory MPs. He founded the 2020 group of Conservative modernisers and became the first ever life sciences minister in 2014. Before this, he had worked for 15 years as a biotech entrepreneur.

Politics is in his blood. The Liberal prime minister William Gladstone was his great-great-great-uncle and Mabel Philipson, the first female Conservative MP, his great-aunt. Yet Freeman attributes his reformist zeal to the belief that “with privilege comes responsibility”. He boarded at Radley College after his parents, both alcoholics, divorced and has spoken of his “emotionally damaged” childhood.

It is unsurprising that May, confronted by the greatest policy challenge since 1945 – EU withdrawal – has called on his services. The chair of the Prime Minister’s policy board, to give Freeman his official title, was a passionate Remainer but told me “we are now all Brexiteers”. The “Brexit roar”, he explained, was “a mixture of very deeply felt concerns and complaints about globalisation, powerlessness and the growing gap between London and [other] places . . .

“There’s an understanding that if we simply delivered Brexit, and didn’t tackle the rest, we would only have dealt with some of the problem.”

His ambition was “to do for our generation what Disraeli did in the 19th century, in understanding that the extraordinarily challenging pace of franchise extension was also a huge opportunity to harness and fashion a New Model Conservative Party”.

Besides abandoning the surplus target (“to boost growth and investment in infrastructure”), Freeman cited welfare policy as a point of departure. The government would “better differentiate” between changes in the welfare budget and systemic reform – a division that May believes was eroded by George Osborne.

The Prime Minister underlined her commitment to industrial strategy by naming a new department after it. But what does it mean? “I think there is a recognition that we are embracing something unrecognisable from the failed ‘beer and sandwiches’ interventionism of the Sixties and Seventies,” Freeman said. “Twenty-first-century Conservative industrial strategy is about backing our science, innovation and knowledge economy, and other sectors where we have serious global leadership.” He spoke of “stepping in where only the state can”, citing the publicly funded Diamond Light Source synchrotron facility, which he recently visited with the astronaut Tim Peake. The government must be not merely “pro-enterprise”, but “more enterprising”.

May has endured her heaviest dissent over education, and Freeman was notably lukewarm about the idea of new grammar schools. “As well as her position” on the latter, he emphasised, “the Prime Minister set out a much broader vision”. Asked whether he understood MPs’ objections to academic selection, he said “there will be all the usual consultation and discussions through parliament about specific measures”.

The Prime Minister has entered office with greater ideological definition to her thinking than David Cameron, who struggled to reconcile his early vision with austerity. Can we speak of “Mayism”? “I’m not sure the ‘ism’ is helpful or appropriate at this stage. The Prime Minister is very strongly driven by her conservative values, and converting those values into effective policies to tackle the challenges we face. I think we have to wait for the judgement of history to define the ism.”

Freeman is close to “DC” (as he calls Cameron) and praised his premiership. “I was very sorry to see him go. But in the end, given the way the referendum turned out, it was inevitable. I thought he handled that whole last week in the most exemplary way: typical of the man. In time, I think he will come to be recognised as a transformational leader who brought the Conservative Party to terms with modern Britain.”

He rejected the former education secretary Nicky Morgan’s suggestion that May would struggle to “reach into” the marginal seats that the Tories won under Cameron. “Theresa May is appealing widely across whole swaths of the country as a One-Nation leader,” he declared.

With the re-election of Jeremy Corbyn, Freeman said, “the centre ground of British politics, once dominated by Blair and New Labour, has been vacated . . . That is a huge opportunity for a One-Nation Conservative Party to demonstrate our relevance beyond our core vote to those around the country who have clearly felt so marginalised.”

Corbyn’s triumph “illustrates the extraordinary challenge for mainstream political parties in this age of asymmetric, post-Brexit politics . . . We now have to use the opportunity of incumbency in government to tackle the root causes of the insurgency that has taken out the Labour Party.”

Freeman acknowledged the risk that Labour’s divisions would produce an internal Tory opposition.

“It also creates a question for the Conservative Party. Will we turn in on ourselves and generate our own arguments, or unite and reach out into the space that Corbyn has vacated?” 

George Eaton is political editor of the New Statesman.

This article first appeared in the 29 September 2016 issue of the New Statesman, May’s new Tories