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.