- Created by: Alex Hastie
- Created on: 09-05-14 14:49
Bail: The system by which a person awaiting trial, or appeal, may be freed by a member of court pending the next hearing.
Common Law: Law based on the custom of the realm and the decisions of judges through the centuries rather than on an Act of Parliament.
Privilege: A defence, absolute or qualified, against an action for libel which attaches to reports produced from certain events, documents or statements.
Indictable Offence: A charge which may be tried by a jury at Crown Court, which will therefore be either an indictable-only offence or an either-way offence.
Defendant: An individual, company, or institution that is being sued/accused in a court of law.
Counsel: A barrister, not a solicitor.
Acquittal: A judgement that a person is not guilty of the crime with which the person has been charged i.e. "the trial resulted in an acquittal".
Committal Hearing: A hearing in a magistrates court at which magistrates sitting as examining justices decide if there is sufficient evidence to commit a defendant facing an indictable or either way charge to Crown Court for trial. Usually there are now no more than formalities.
Legal Terms: Part 2
Injunction: A court order requiring someone, or an organization, to do something specified by the court, or forbidding a specific activity or act.
Summary Trial: A trial at a magistrates court.
Contemporaneous: Existing or occuring in the same period of time.
In Chambers: Used to describe the hearing of an application, which takes place in the judge's room. If there is no legal reason for such a hearing to be held in private, journalists who want to report it should e admitted in 'practicable'.
Precedent: An earlier event or action regarded as an example or guide to be considered in subsequent similar consequences.
Claimant: Previously known as a plaintiff. The person who takes an action to enforce a claim in the civil court.
Two Types of Law
Criminal Law: Deals with offences that are deemed to harm the community and therefore the soverign i.e. The Queen against Smith (is how it would be written).
Civil Law: Deals with private claims and the redress of private wrongs i.e. Brown vs. Smith; or Morrisey vs. IPC Media (is how it would be written).
- 12 people on a Jury
- Anyone can be a Jury member who is on the electoral roll chosen at random
- People are exempt from being a Jury member if they have a mental disbailty or a criminal record within the last 10 years
- The ages between 18-70 can be a Jury member
- When all Jury members agree on a verdict, it is known as unanimous
Section 8 of the Contempt of Court Act:
It is contempt to obtain, seek or disclose:
- Statements made
- Opinions expressed
- Arguements advanced
- Votes cast
By a Jury member during the trial and deliberations.
This applies even if the juror is not identified.
After a trial, the media could only report jurors' general impressions of jury service. No names or addresses.
Lord Chancellor - Chris Grayling MP
Attornery General (AG) - Dominc Grieve MP
Solicitor General - Oliver Heald MP
Director of Public Prosecutions - Alison Saunders
Crown Court Terms
2 Divisions of Law: Criminal and Civil
The Branches of the Legal Profession: Solicitors and Barristers
Head of the Judiciary: The Lord Chief Justice
What is ‘taking silk’: A senior barrister (i.e. with 10-15 years) experience can apply to become a Queen’s Counsellor (QC) (they were a silk gown in Court).
Arraignment: A defendant whose case is sent or committed for trial or transferred to a Crown Court is asked to plead guilty or not guilty to each charge on the indictment for formal please to be recorded. This process is known as arraignment. At Crown Courts, charges are referred to as 'counts'.
The Crown Courts
The Crown Courts:
- Handle serious criminal cases
- Trials, sentences or appeals from magistrates' court
- Six crown court areas (circuits)
- The Old Bailey is a Crown Court
- Judges now appointed by independent commission
Types of Crown Court Judges
Three types of Judges sit in Crown Court:
- High Court Judges - those who can sit in the High Court and Crown Courts. They are referred to as i.e. Mr Justice Smith. They wear red robes for criminal cases. Only they can try the most serious offences, such as murder, as they are the most experienced.
- Circuit Judges - they are referred to as Judge John Smith. They are barristers of at least 10 years standing, or solicitors who have been Recorders.
- Recorders - part-time Judges. They are barristers or solicitors who have held 'right of audience' (the right to represent clients) at Crown Court. Recorders are usually referred to as the Recorder, Mr John Smith or Mrs.
Routes to Crown Court
A case yet to be tried reaches a Crown Court because it has been:
- Sent for trial - from a magistrates court because it is an indictable-only charge
- Committed for trial - from a magistrates court if it is an either-way charge
- Commited for trial - from a youth court
- Transferred by a magistrates court - if it is an either-way fraud case deemed serious or complex, or an either-way case involving an alleged sexual or violent offence and a child witness
Indictment: A written statement of the charges which is put to the defendant at the arraignment at Crown Court.
Either-way Offence: One triable either summarily at magistrates court or before a jury at Crown Court. In an either-way case a defendant who has indictated a plea of not guilty has the right ot opt for jury trail at Crown Court. But if he/she choose to be tried by the magistrates court, it may overrule him/her by deciding the Crown Court should deal with his/her case.
Indictable-only Offence: One hat can only be tried by a jury at Crown Court.
The Guilty Plea
The Clerk of Court will ask the defendant to plead guilty or not guilty to each charge (count) on indictment. A plea will then be taken.
A Guilty Plea:
- No jury will be present
- The prosecution gives evidence, records or social inquiry reports
- Defendant or his/her lawyer will offer mitigation
- The Judge passes a sentence
- The case then becomes 'active'
Mitigation: A plea for leniency in the sentence due to imposed, citing extenuating circumstances, which is made in court or on behlaf of a convicted defendant.
Guilty Plea to All Charges:
- Automatic restrictions no longer apply
- Beware of 'mixed pleas' from defendant(s)
- If due to be more than one trial Judge may make s4(2) order under Contempt of Court Act (temporary ban)
Not Guilty Plea
- May be pre-trial or preparatory hearings – No jury but automatic reporting restrictions apply
- Hearings include legal rulings
- i.e. On admissisbiltiy of evidence to be heard; or bail
- Avoid SRSIP (Substantial Risk of Serious Impediment of Prejudice)
Bail: The system by which a person awaiting trail, or appeal, may be freed by a court pending the next hearing.
Substantial Risk of Serious Impediment of Prejudice (Prejudical Matter - SRSIP):
- Any reference to evidence in the case, apart from in charges
- Any previous convictions
- Applications for, and rulings on, admissibility of evidence
- Applications for those rulings to be varied or discharged
- Any other material with potential to create prejudice
Not Guilty Plea: Part 2
How the Guilty Plea Works:
- Jury sworn in ‘empanelled’ and told indictment
- Prosecution opens case and calls its witnesses
- Defence case
- Final speeches
- Judge sums up case for jury focusing on law not fact
- Jury decides on verdict – normally discharged before the person is sentenced
- Judge passes a sentence (after a victims family statement in some cases)
- The defence can appeal against conviction or sentence:
- The Judge (CoA) must grant ‘leave’
- Appeal is heard by Court of Appeal then Supreme Court
Restrictions on Reporting Pre-Trial Hearings
The automatic restrictions which limit media reports of some types of pre-trial hearings at Crown Courts are in various statutes, but of the same format. They restrict these reports to seven categories of information:
- Name of Crown Court and Judges name
- Names, ages, addresses, occupations of defendants and witnesses
- The charges, or a summary of them
- Names of solicitors and barristers in case
- Date and place to which proceedings are adjourned, if applicable
- Arrangements as to bail i.e. granted or refused (but not reasons for refusal), any conditions or surety
- Whether legal aid was granted
Surety: A person, usually a friend or relative of the defendant, to whom a court entrusts the responsibility to ensure that the defendant, having been given bail, returns to court on the due date. The surety may pledge a sum of money as guarantee that the defendant will answer bail, and risks losing it if the defendant fails to do so.
Legal Aid: Public money provided to pay for legal advice and legal representation in court for a party in a civil case or a defendant in a criminal case, if their income is low enough to qualify.
Types of Hearings
The types of hearings for which the above format of restrcitions apply are:
- Unsuccessful applications for a case to be dismissed prior to arraignment (Crime and Disorder Act, Criminal Justice Act). A defendant whose case is 'sent for trial' or 'transferred' to a Crown Court may apply to a Judge, before arraignment, for it to be dismissed because of insufficient evidence.
- Preparatory Hearings: These happen in serious cases where will be a complex, lengthy trial. This hearing marks the start of a trial, just prior to jury involvement. (Criminal Justice Act, Criminal Procedure and Investigations Act)
Relevant Business Information
Section 11 of the Criminal Justice Act 1987 allows journalists to report on 'relevant business info' at the hearing, even when the automatic restrictions are in place. This means the media can report:
- Any address used by the defendant for carrying on business of his/her own account
- The name of the business at 'any relevant time' i.e. when events which gave rise to the charges occurred
- The name and address of any firm in which he/she was a partner, or by which he/she was engaged in the business
- The name of any company of which was a director, or by which he/she was otherwise engaged, at any such time, and the address of its registered or principla office
- Any working address of the defendant in his/her capacity as a person engaged by any such company
Engaged: Means under a contract of service or a contract for services.
A Crown Court Judge can lift the restrictions, or lift them in part, to allow the media to publish contemporaneously fuller reports of such hearings.
- Judges have power to lift restrictions in full or in part
- Restrictions cease to apply following convictions or acquittal; or case dismissed
Case Study: Page 79 R v Chaytor and other 
Penalty for Breach: Max £5000 fine, plus costs of collapsed trial (s93 Courts Act 2003)
Reporting Appeals Against Judge's Rulings:
- Prosecution has right to appeal against any ruling by judge, which would terminate all or part of a case
- S71 Criminal Justice Act: Automatic ban on reporting any crown Court discussion about such an appeal (TIP: Jury will be absent)
A judge initially asks a jury to reach a unanimous verdict on each charge - that is, a unanimous vote to acquit or convict:
- However, if a jury has retired to discuss the case for at least 2 hours and 10 minutes and has failed to reach a veridct, the judge can recall it to the courtroom to tell if that a majority verdict is acceptable (for each charge)
- For a full jury of 12, majority verdicts of the ratios 11-1 or 10-2 are acceptable
- If a jury is reduced in number for any reason, for example because 1 or 2 jurors have fallen ill during the trial, a majority of 10-1 or 9-1 is allowed
- If a defendant is convicted by a majority, rather than by a unanimous vote, the media should ideally report the fact that it was by a majority decision, as this indicates that one or two people disgareed with the 'guilty' veridct
- However, if they were convicted not guilty, you cannot report that they were ‘acquitted by a majority’
Contempt of Court Act, 1981:
- Section 8 makes it an offence to seek or disclose information about statements made, opinions expressed, arguments made, or votes cast by jury in course of its deliberations.
Introduction to PCC and ECP
There are no state controls in the UK on who can run or own newspapers, magazines, their online versions or any kind of website.
Newspapers, magazines, websites etc. are free to be partisan about social issues, and can support a political party. Journalists also have the right to publish (subject to restraints) their own fierce criticisms of those in the news (or anyone else).
But newspapers et al. owners must recognise that irresponsible journalism could lead Parliament to introduce some statutory systems of regulation.
The newspaper and mag industry created the PCC to keep the threat of statutory regulation at bay.
The PCC's Role
- Launched in 1991
- Replaced the Press Council - a self-regulatory body, which was slow and ineffective
- Has 17 Commissioners a.k.a. 'lay people' (not from media backgrounds:
- The Commissioners oversee complaints
- The cost of running the PCC was £1.83 million in 2010
- Collected by the Press Standrads Board of Finance, PressBof.
- Not all newspapers support the PCC
- January 2011 - Richard Desmond's Northern and Shell Group withdrew, taking magazines and newspapers: OK!, Daily and Sunday Express, Scottish Daily, Daily Star and Daily Star Sunday from the PCC's remit.
- In 2010 the PCC recieved more than 7,000 written complaints, 8.99 of which fell outside its remit
- In 2010, the PCC judged 750 complaints to have breached their code
- The PCC cannot force editors to publish adjudications
- Critics have argued that because the PCC has no power to impose a financial penalty, it is too weak to be effective
Adjudications: A formal judgement on a disputed matter.
The Editors' Code
The Editors Code:
- Has 16 clauses:
- Opportunity to reply
- Intrusion into grief or shock
- Children in sex cases
- Reporting of crime
- Clandestine devices and subterfuge
- Victims of sexual assault
- Financial Journalism
- Confidential Sources
- Witness payments in criminal trials
- Payment to criminals
Public Interest in the ECP
Breaching the Editors' Code is not a criminal offence or a civil tort.
Tort: A civil wrong for which monetary damagaes may be awarded if the person affected sues in civil law, i.e. defamtion, medical negligence.
Some clauses or sub-clauses in the code are marked with an asterisk (*), which indicates that breaches of these parts can be justified if an editor can say this was done 'in the public interest'.
The code adds 'the public interest' includes, but is not confied to:
- Detecting or exposing crime or serious impropriety
- Protecting public health and safety
- Preventing the public from being misled by an action or statemnet of an indivdual or organisation
Clause 1 & 2
Cluase 1: "The Press must take care not to publish inaccurate, misleading or distorted information including pictures"
Clause 2: "A fair opportunity for reply to inaccuracies must be given when reasonably called for"
Each year the majority - usually nearly 90% - of complaints to the PCC allege breaches of clauses 1 and/or 2.
Neither clause is subject to the public interest exception - there is no public interest inaccuracy.
Case Study: Adam Sheppard vs. Daily Star - September 27, 2010 (page 15)
Coverage of Suicides
Research has found that news of suicides may prompt others to take their own lives in the same way. To minimise the risk, clause 5 of the code says reports of suicides should avoid giving excessive detail about the method used.
The PCC reported an inquest into a suicide that breached the clause because it named the anti-depressant pills used and said how many were missing from the packet, leading to other suicides in the same manner.
(A Woman vs. The News (Portsmouth), adjudication issued Jan 28th, 2010)
Clause 10: i) "The press must not seek to obtain or publish material acquired by using hidden cameras or clandestine listening devices"
Clandestine: Kept secret or done secretively, especially because illicit.
It makes it clear that journalists should normally be open and transparent when seeking information or comment, making clear from the outset to anyone unfamiliar with them that they are journalists.
It also means that normally photography or filming must be done openly, and that eavesdropping by using 'bugs' or audio-recording by hidden microphones will breach the code because the activity is 'clandestine'.
BUT Clause 10 is subject to the public interest exceptions i.e. an undercover journalist. This can only be applied if any other tactics or methods in an open approach would not work.
Case Study: Mrs Jean Bellfield vs. Daily Mirror, adjudication issued July 23rd, 2009
Recording Phone Calls
Journalists, particulary those involved in investigations, may decide to record their own calls.
In the UK it is legal for one party in a phone conversation to record it, even if the other is unaware this is being done.
But a journalist who fails to declare in such a call that he/she is a journalist may breach the code's ban on subterfuge and misrepresentation [unless public interest applies].
BUT intercepting a phone call - using external technology to hack directly or 'tap' into a phone system to listen or record would breach the code and be illegal. This was demonstrated by the scandal which closed the News of the World in July 2011.
Clause 12 of the code bans publication of pejorative material which discriminates on grounds of race, religion, sexual orinetation, gender, disability or physical or mental illness.
References to any of the above MUST be genuinely relevant to the story, or this would breach the code.
Case Study: Clare Balding vs. The Sunday Times, adjudication September 17th, 2010.
The PCC's Future
The biggest press scandal in recent years has been that of journalists, or colluding private detectives, secretly and illegally 'hacking' into people's mobile phones to hear their private messages.
These recommendations seem highly likely to lead to radical reform or replacement of the PCC, which had already been widely crticised for failing to recognise or properly investigate the extent of hacking.
Journalism broadcast on television and radio in the UK is regulated by statute.
Statute: An act of Parliament - that is, primary legislation created by Parliament.
The Office of Communications (Ofcom) is the independent regulator, adjudicates on complaints against broadcast journalists.
Ofcom says that broadcasters must be: impartial when covering political or social issues, be accurate, treat people fairly, respect privacy, avoid causing harm and offence. They can then impose substantial fines for breaches of the code.
Roles of Ofcom:
- Commercial broadcasters cannot transmit without a licence from Ofcom, which began in 2003
- Ofcom had a budget of £115.8 million in 2011/12
- They are funded mainly by licence fees paid by broadcasters and Gov. funds
- They also regulate phone services
- The Communications Act 2003 and the Broadcasting Act 1996 require Ofcom to draw up standards for programme content
- Web content is not a subject to Ofcom rules as it is not considered a broadcast material
If Ofcom upholds a complaint, it can:
- Direct that a programme should not be repeated
- The broadcaster must air a correction or a statement
- Impose a fine if the broadcaster breaches the code serious or reckless
- Shorten or suspend the broadcasters licence
- Worst case: revoke it, i.e. close the station
- Ofcom cannot shorten, suspend or revoke the licences at the BBC, S4C or Channel 4 - they are public service broadcasters
- They can fine the BBC or S4C up to £250,000 for a code breach
- Other broadcasters, the maximum fine is £250,000 or 5% of the broadcasters qulifying revenue
In 2008, Ofcom fined ITV plc a total of £5,675,000 for multiple breaches which involved the misleading of viewers in a phone-in competition.
Case Study: ITC Press Release and the Guardian, December 18th 1998
The Ofcom Code
The Ofcom Broadcasting Code:
- Section 1 - Protecting Under 18's
- Section 2 - Avoiding harm or offence
- Section 3 - Covering crime
- Section 4 - Covering religion
- Section 5 - Due impartiality and due accuracy and undue prominence of views and opinions
- Section 6 - Covering leections and referendums
- Section 7 - Fairness
- Section 8 - Protecting privacy
- Section 9 - Commercial references in television programming
- Section 10 - Commerical communications in radio programming
With appendices and index, the code runs to 134 pages and covers all broadcast output, including drama and entertainment programmes.
Ofcom Code: Section 1
Protecting the Under 18's in the audience
Rule 1.1: Material that might seriously impair the physical, mental or moral development of people under eighteen must not be broadcast.
Rule 1.2: In the provision of services, broadcasters must take all reasonable steps to protect people under eighteen.
Rule 1.3: Children must also be protected by appropriate scheduling from material that is unsuitable for them.
Children: Those under the age of 15
Ofcom Code: TV Watershed
Rule 1.4: Televsion broadcasters must observe the 9pm 'watershed' marking the transition for free-to-air TV channels between the times of day - from 5:30am to 9pm - when children are most likely to be watching. The later slots are for when the audience is assumed to be adult.
Rule 1.6: The transition to more adult material must not be unduly abrupt at the watershed (in the case of television). For television, the strongest material should appear later in the schedule.
Rule 1.7: For television programmes broadcast before the watershed, clear information about content that may distress some children should be given, if appropriate, to the audience i.e. news anchors can warn if footage about to be shown portrays violence.
Rule 1.11: Violence, its after-effects and descriptions of violence, whether verbal or physical, must be appropriately limited in programmes broadcast before the watershed.
Rule 1.16: Offensive language must not be broadcast before the watershed.
Rule 1:20: Representations of sexual intercourse must not occur before the watershed.
The term 'watershed' is not used for radio. But the code says radio broadcasters must have a particular regard to what is aired when 'children are particularly likely to be listening'.
Ofcom Code: Section 2
Harm and Offence
Rule 2.1: Generally accepted standards must be applied to the contents of television and radio services so as to provide adequate protection for the public from the inclusion in such services of harmful and/or offensive material. Material which may cause offence includes pictures or sounds of distress, humiliation, language, violence, sex and any type of discrimination.
Rule 2.2: Factual programmes or items or portrayals of factual matters must not materially mislead the audience.
Rule 2.3: Material likely to cause offence must be justified by context, and appropriate information should be broadcast where it would help avoid or minimise offence.
Case Study: Ofcom No. 68, September 4th 2006.
Rule 2.6: Demonstrations of exorcism, the occult, the paranormal, or practices related to any of these that purport to be real (as opposed to entertainment) must be treated with due objectivity.
Rule 2.7: If a demonstration of exorcism etc. or practices related to any of these is for entertainment purposes, this must be made clear to viewers and listeners.
Ofcom Code: Section 3
Rule 3.1: Material likely to encourage or incite the commission of crime or to lead to disorder must not be included in television or radio services.
Rule 3.2: Descriptions or demonstrations of criminal techniques which contain essential details which could enable the commission of crime must not be broadcast unless editorially justified.
Rule 3.3: No payment or payment in kind, may be made to convicted or confessed criminals whether directly or indirectly relating to his/her crime/s. The only exception is where it is in the public interest.
Rule 3.4: While criminal proceedings are active, no payment or promise of payment may be made to any witness or any person who may reasonably be expected to be called as a witness.
Rule 3.6: Broadcasters must use their best endeavours so as not to broadcast material that could endanger lives or prejudice the success of attempts to deal with a hijack or kidnapping.
Rule 3.3 and 3.4 also apply in the Editors' Code of Practice.
Ofcom Code: Section 4
Section 4 of the Ofcom code says the views and beliefs of those belonging to a particular religion or religious denomination must not be subject to abusive treatment.
Rule 4.7: Religious programmes that contain claims that a living person (or group) has special powers or abilities must treat such claims with due objectivity and must not broadcast such claims when significant numbers of children may be expected to be watching.
Ofcom Code: Section 5
Section 5 of the Ofcom code sets out impartiality and accuracy requirements for broadcasters other than the BBC, which has its own regulatory requirements on these matters.
Rule 5.1: News, in whatever form, must be reported with due accuracy and presented with due impartiality.
Rule 5.2: Significant mistakes in news should normally be acknowledged and corrected on air quickly. Corrections should be appropriately scheduled.
Rule 5.3: No politician may be used as a newsreader, interviewer or reporter in any news programmes unless, exceptionally, it is editorially justified. In that case, the political allegiance of that person must be made clear to the audience.