News Release
2 November 2006
FAMILY COURTS: NS WARNS REPORTING RESTRICTIONS THREATEN
OPEN JUSTICE
The Newspaper Society has responded to the Department of
Constitutional Affairs’ proposals for new access and reporting
procedures in family courts. The DCA paper suggests that the press
should be allowed to attend all family courts as of right, but that
new statutory restrictions on reporting proceedings should be put
in place, to accord all parties to the proceedings automatic
anonymity and to provide for additional reporting restrictions at
the court’s discretion.
The NS has said it welcomes the proposals in so far as access
to the courts is concerned, but that it regards the suggested
reporting restrictions as a step backwards and a serious erosion of
the principle of open justice. It argues that existing statutory
and common law powers of the courts to restrict reports, including
identification of individuals, are adequate to ensure that privacy
of individuals can be accorded where necessary, particularly of
children. In its response to the DCA, the NS said: "The justice
system in other courts has evolved for the most part to avoid
losing the vital principle of open justice whilst allowing for
exceptional departures from this. There is no reason why the family
court system can not do the same"
Criticising the proposition that the media should in effect be
allowed to attend family courts but be severely constrained in its
ability to report the proceedings, the NS referred to the
acknowledged and valued role of the press as the public’s
"watchdog" attending the proceedings "on their
behalf", and reporting the proceedings.
The NS said "There is no point in sending the watchdog to
attend if it cannot bark. The public cannot properly be informed of
how the state is operating in its name if the proceedings of the
court cannot be reported.
"The communication to the public of fair and accurate
reports of court proceedings is a function of the media which has
long been acknowledged by the law as in the public interest, and
which has special protection in law."
The NS pointed out that the proposal to accord blanket
anonymity to all parties would represent a curtailment of the
present reporting rights which have pertained for over 40 years
(and in the case of divorce proceedings, since 1926), and concluded
"In the context of a debate on increased openness, this is an
ironic position for the Government to be taking, and one which we
wholly oppose.
"The effects of granting automatic anonymity for all
parties in family proceedings could be far-reaching and would have
obvious implications in terms of freedom of expression rights under
Article 10 of the European Convention on Human Rights as well as
impacting generally upon established legal principles and practices
relating to disclosure of information and confidentiality. How long
would anonymity prevail for? For the purposes or reporting the
proceedings or generally, for life? Would it apply only to reports
of the proceedings themselves or for all publications? Under the
proposed regime, would an editor risk prosecution for publishing a
news story which referred to a public figure – such as, say, a
prince of the realm – as having been divorced?"
The NS also referred to existing reporting restrictions, for
example for ensuring anonymity for victims of sexual offences, and
the existing powers of the courts to restrict reports and provide
for anonymity of parties pursuant to Sections 11 and 4(2) of the
Contempt of Court Act 1981 and Section 39 of the Children &
Young Persons Act 1933, as well as the power of the court to issue
injunctions directed at particular conduct or the publication of
particular material. All these, said the NS pointed to the fact
that "Adequate measures exist to protect those participating in
other court proceedings where necessary, without resorting to
wholesale anonymity."
If the Government remained convinced that new reporting
restrictions for family courts were necessary, then the NS urged
that there should be detailed preliminary discussions with the
media as to their practical effect and application. For example,
there should be a right for the media to make representations to
the court if it were considering making an anonymity order, and a
right of appeal against such orders if made. Courts would also have
to be given clear directions as to making such orders in writing,
with their scope clearly set out, and for such orders to be
communicated to the media. It would be necessary to provide that
parties the subject of such an order could waive their right to
anonymity by consent without the need to revert to the court and
that the court would have power to lift an order previously
made.
The NS submission to the DCA can be viewed
here.
The Newspaper Society, the voice of Britain's regional
and local press, represents around 1,300 daily and weekly, paid-for
and free, newspaper titles in the UK.
The Newspaper Society is a member of UK Publishing
Media: a £18 billion alliance of newspapers, magazines and books,
which collectively represent one of the largest investors in the
rapidly-expanding information society.