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Section numbers from the book are used. The book should be read too. Its content provides fuller explanations and context.
9.2 Routes to Crown court
Voluntary bill of indictment
If magistrates decide not to send an indictable-only or either-way case to Crown court for trial, a prosecutor can apply to a High Court judge for it to be sent to Crown court directly. If the judge agrees, a draft indictment, setting out the charge(s) against the defendant, which is called a voluntary bill of indictment, is sent to the Crown court to become the actual indictment there. Because magistrates’ decisions are usually respected by prosecution agencies, this procedure is rarely used. Exceptionally, it may be used in other circumstances – for example, if a defendant is so disruptive at a hearing at the magistrates’ court that it is better to use to a voluntary bill of indictment then attempt to complete a ‘sending’ hearing.
9.4.7 When do the automatic reporting restrictions cease to apply?
Case study: In 2014, a judge at Southwark Crown court agreed to lift reporting restrictions covering a pre-trial hearing. The case concerned an alleged multi-million-pound fraud. Because evidence was complex it was classed as a Very High Cost Case (VHCC). But, the court heard, government cuts to legal aid had reduced by 30 per cent the fees which defence barristers could claim in such cases, so no barristers were willing to represent five defendants in the forthcoming trial. A barrister representing them pro bono at the hearing asked Judge Anthony Leonard QC to ‘stay’ (end) the fraud proceedings, arguing that without barristers the defendants could not have a fair trial. Journalists from three newspapers, the BBC and the Law Society Gazette argued in a note to the judge that reporting restrictions covering the pre-trial hearing should be lifted because the legal argument relating to the legal aid cuts was a matter of considerable public interest (and so should be published contemporaneously). The journalists pointed out that airing the matter in a report of the pre-trial hearing would not prejudice the trial, as the issue was whether the defendants could have a fair trial. The judge agreed, ruling that the media was ‘free to report anything’ from the hearing, subject to the normal rules on contempt of court. Subsequently, he did ‘stay’ the fraud case. But the Court of Appeal reversed this ‘stay’ decision, saying it was too early to ascertain whether the defendants could get barristers (Media Lawyer, 1 and 13 May 2014; R v Crawley and others [2014] EWCA Crim 1028).
9.4.9 Appeals against rulings by judge—reporting restrictions
In its hearing concerning the VHCC case, see above, the Court of Appeal lifted the automatic reporting restrictions in section 71 of the Courts Act 2003, to enable the media to fully and contemporaneously report the arguments over the legal aid issue, and because such reports of the hearing would not cause prejudice.
9.9 Journalists can visit prisoners
The House of Lords ruled in R v Secretary of State for the Home Department ex p Simms ([1999] 3 All ER 400) that two prisoners serving life sentences for murder should be allowed visits from journalists who wished to interview them about their claims of miscarriage of justice. The case arose because governors of the prisons, following what was then Home Office policy, were only prepared to allow the visits if the journalists signed written undertakings not to publish any part of the interviews. The journalists refused to give such undertakings. The House of Lords ruling overturned the policy. Lord Steyn said in the judgment: ‘The prisoners argue that in their cases the criminal justice system has failed, and that they have been wrongly convicted. They seek with the assistance of journalists, who have the resources to do the necessary investigations, to make public the wrongs which they allegedly suffered. The value of free speech in a particular case must be measured in specifics. Not all types of speech have an equal value. For example, no prisoner would ever be permitted to have interviews with a journalist to publish pornographic material or to give vent to so-called hate speech. Given the purpose of a sentence of imprisonment, a prisoner can also not claim to join in a debate on the economy or on political issues by way of interviews with journalists. In these respects, the prisoner's right to free speech is outweighed by deprivation of liberty by the sentence of a court, and the need for discipline and control in prisons. But the free speech at stake in the present cases is qualitatively of a very different order. The prisoners are in prison because they are presumed to have been properly convicted. They wish to challenge the safety of their convictions. In principle, it is not easy to conceive of a more important function which free speech might fulfil…For my part I am reasonably confident that once it is accepted that oral interviews with prisoners serve a useful purpose in exposing potential miscarriages of justice the Home Secretary would not wish his present policy to be maintained. But, if I am mistaken in that supposition, my view is that investigative journalism, based on oral interviews with prisoners, fulfil an important corrective role, with wider implications than the undoing of particular miscarriages of justice.’
Subsequently, and taking into account the House of Lords judgment, the National Offender Management Service (NOMS), an agency of the Ministry of Justice, set out in document PSI 37/2010 its policy on ‘Prisoners’ access to the media’, including prisoners communicating with journalists by phone or letter, or by journalists visiting prisons. NOMS has since been replaced by HM Prison and Probation Service, but this policy is still current – see Useful Websites below. Prisoners do not need the prison governor’s permission to write letters to or receive them from the media. But the policy says that a visit by a journalist to interview an inmate in prison will only be allowed in exceptional circumstances, where there is a need for a face-to-face interview because the prisoner claims a miscarriage of justice and requires the assistance of a journalist to challenge a conviction or sentence, or ‘there is some other sufficiently strong public interest in the issue sought to be raised during the visit and the assistance of a particular journalist is needed’ – for example, if the prisoner alleges torture by a public official.
In 2015 Guardian journalist Amelia Gentleman wrote of repeatedly being refused permission to visit UK prisons, to write generally about them. In early 2016, she was able to visit Wandsworth prison, London and Oakwood prison near Wolverhampton. See links to her articles, below.
The BBC Editorial Guidelines have content on interviewing prisoners. See below.
9.14 Courts martial
People in the armed services are subject to UK law in the courts martial system (the ‘service courts’), even if the alleged offence was committed in another country. This military court is presided over by a civilian Judge Advocate (a judge who also sits in the Crown or High Court). The decision on whether to convict or acquit is taken by a ‘board’ (in effect a jury) of three to seven service personnel. If it convicts, the board and the Judge Advocate decide on sentence. The court has the same sentencing powers as a Crown court, including to impose life sentences. The Judge Advocate General is the Judicial Head of the Service Courts
Courts martial are usually open to the public and the media. But the Armed Forces (Court Martial) Rules 2009 give these courts discretion to go into private session – for example, to protect national security. Also, the courts can order that the name of a defendant or witness should not be referred to in public hearings if it is argued, for example, that publicity identifying them would create a ‘real and immediate’ risk to their safety from a terrorist group. To guard against inadvertent disclosure, and against the consequences of the media discovering by other means who these protected people are, courts martial can make an additional order to ban media coverage from identifying such a defendant and or witness. But all courts have to consider in such decisions the open justice principle and the media’s and public’s rights under Article 10 of the European Convention on Human Rights, explained in 1.3.2, 15.1, 15.5 and 15.6 in McNae’s. For example, journalists who believe a reporting restriction is invalid can refer the court martial to case law on what a ‘real and immediate’ risk to safety is – see 16.11 in McNae’s.
Case study: An anonymity order protected the identity of two instructors with the SAS regiment who in September 2018 were acquitted by a court martial of negligence as regards their duty of care for soldiers taking part in an arduous exercise. The exercise was part of a selection process for a special military unit. The case was brought against the instructors because three part-time soldiers died after marching through the Brecon Beacons during the exercise in high temperatures in July 2013. Lance Corporal Craig Roberts and L/Cpl Edward Maher were pronounced dead after suffering heat illness. Corporal James Dunsby died in hospital more than two weeks later from multiple organ failure (The Guardian, 10 and 18 September 2018)
Case study: In the 2013 court martial of Royal Marine sergeant Alexander Blackman, who was eventually convicted of murdering an injured insurgent in Afghanistan, the Judge Advocate barred the media from identifying him and other marines during the proceedings. The Judge Advocate’s orders were made under the 2009 rules and section 11 of the Contempt of Court Act 1981, a power explained in 12.5 in McNae’s. After the guilty verdict the Judge Advocate lifted the orders, ruling that Blackman could be identified. Blackman appealed against that ruling, but the High Court upheld it, allowing the media to reveal who he was (Marines A and others v Guardian News and Media and Other Media [2013] EWCA Crim 2367).
See Useful Websites, below, for more information about the courts martial system. The reporting of courts martial is protected in defamation law if the requirements of the defence of absolute privilege or that of qualified privilege are met – see 22.5 and 22.7 in McNae’s.
Useful Websites
www.gov.uk/government/publications/prisoners-access-to-the-media-psi-372010
HM Prison and Probation Service policy on ‘Prisoners’ access to the media’
https://www.bbc.co.uk/editorialguidelines/guidelines/crime/guidelines
BBC Editorial Guidelines on interviewing prisoners
www.theguardian.com/commentisfree/2015/feb/10/uk-prisons-journalists-what-hide
Amelia Gentleman’s 2015 article
Amelia Gentleman’s 2016 article on Wandsworth prison
www.theguardian.com/society/2016/feb/23/inside-oakwood-prison-supersize-private-jail-g4s-profit
Amelia Gentleman’s 2016 article on Oakwood prison
www.judiciary.gov.uk/about-the-judiciary/the-justice-system/jurisdictions/military-jurisdiction/
Information about the courts martial system on the judiciary website