Must journalists attend court hearings to report accurately?
17 May 2011
I posted last week on a judgment given by His Honour Judge Bellamy in a family court case involving a mother’s abuse of her baby The judge took the unusual step of criticising media reporting of the case. He said the Telepraph’s Christopher Booker’s reporting was “unbalanced, inaccurate and just plain wrong“.
There have been some developments since last week which raise interesting questions about the duty of journalists to report cases accurately. First, Sir Nicholas Wall, head of the family division, used his judgment in a different case to support HHJ Bellamy’s criticism. He said:
although I disagree with Judge Bellamy’s decision… I agree entirely with paragraphs 185 to 193 of his judgment in Re L under the heading “Transparency” and in which the judge deals with the tendentious and inaccurate reporting of the case.
Christopher Booker then replied to the judges in an article which claimed that his article, and in particular the controversial part about the child’s injuries, was not necessarily factually inaccurate:
The problem with regarding metaphyseal injuries as an indicator of abuse is that in recent years ever more medical experts have strongly questioned the idea. Their studies show that metaphyseal fractures may occur in babies with soft, still-forming bones, with minimal trauma.
Family law Barrister Lucy Reed has responded to Booker on her blog. She rightly points out that leaving aside the interesting points about medical science, the judge’s principal criticism of Booker was that he had reported on the case without attending the hearing. He had simply reported what the mother (who was ultimately found to have caused a fracture in her baby’s arm) had told him. Responding to Booker’s claim that there were “extraordinary obstacles placed in the way of any journalist wishing to report fairly” on such cases, Reed says:
Those “extraordinary obstacles” include preventing a journalist from obtaining accurate information by attending the actual hearings, listening to the actual evidence and hearing submissions for all the parties, right? Sorry, what’s that? Reporters allowed into court you say?
Booker claimed that attending hearings was simply too difficult:
The only recourse left to those trying to establish the facts of such cases is rigorously to test what can be learned from the few people willing to speak, and to come to as informed and judicious a view as possible.
But, as Reed says
… Mr Booker could have attended any of the hearings. Mr Booker could have sought permission to publish information arising from the proceedings. He could have sought permission to see the documents in the case, for example the medical reports. But he didn’t. He didn’t do any of those things.
This raises an interesting question. Must a journalist attend a hearing to report properly on it?
On the one hand, it would be onerous for journalists to spend their days at the courts in the hope of picking up something interesting to report on. This may even lead to them sexing up the cases they do happen to see in order to find a story. And hearings are not always open to the public.
On the other, that is what court reporters do and have done since the time of Dickens (in fact, Dickens was a court reporter in his youth). Hearings are sometimes closed to the public but they are mostly open. The family justice system is probably the most closed, in order to protect the anonymity of parties, but it has been opened up in recent years.
I would be odd if football journalists suddenly stopped attending matches and instead relied on a post-match interview with one of the players to piece together their report. One would always assume the report would be unbalanced and inaccurate. Why should law reporting be any different?
Even if you cannot make a hearing, there are other ways of knowing what happened beside speaking to the interested parties. It is usually possible to obtain court documents and hearing transcripts, either as a matter of course – public inquiries usually publish transcripts online on the same day – or by paying a few pounds. That said, anyone who has attended a hearing with live witness evidence will know how important it is to hear the witnesses themselves to gauge the tone of the answers and the judge’s responses to them.
The result of poor reporting is public misunderstanding of cases in particular and of the justice system in general. Everyone is entitled to campaign for justice reform but, as Lord Neuberger said in relation to poor law reporting, “persuasion should be based on truth rather than propaganda“.
Yesterday’s long-awaited (by me at least) announcement that supreme court hearings will be broadcast live online will mean that the public will have easy access to at least one court. But since the supreme court only hears appeals, journalists will still have to turn up at other courts to hear witness evidence. This surely adds weight to the case that more hearings should be broadcast.
The Booker controversy will continue to rumble on. As the impassioned comments to my original post show, many see Booker as a hero who is exposing the injustices in the family law system. But whilst family judges share some of his criticisms, they appear to be united in exposing any comments on individual cases or judges to anxious scrutiny. This is clearly the right approach. As Booker’s most recent article shows, by not attending the hearings he has been forced to argue over abstractions. However much he challenges the medical science, if he had attended he may have reached a different, and more accurate, conclusion on the actual evidence.
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