New Zealand Law Society - The courts, open justice and the media

The courts, open justice and the media

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Members of the profession, particularly those who appear in courts, will be interested in recent developments in the area of media in courts.

The Media and Courts Committee, where judges and media representatives meet, has been monitoring the ongoing challenges that arise. This committee was set up by the Chief Justice and has existed in various forms since the 1990s. Members of the judiciary and the media meet regularly to discuss topical issues and developments concerning the media in courts.

Recently the Chief Justice set up a panel of judges to report to her on the guidelines and practices that relate to filming, photographing or recording in court. There was consultation with the media and the profession, and a report was prepared and presented.1

The Chief Justice, after consulting with the Heads of Bench, has recently accepted the recommendations of that panel. Recommendations included retaining filming and recording in courts, but making changes to the In-Court Media Guidelines to reflect the New Zealand experience.

The courts and media in New Zealand

In considering the interface between media and the courts, it is to be borne in mind that an independent, efficient and respected judiciary, and a vigorous and unfettered media are key pillars of our democracy. To an extent they work together and need each other to uphold the rule of law.

Free reporting requires strong and independent courts. Equally the effective dispatch of justice requires court proceedings to be accurately reported to the public. Lord Judge, the former Chief Justice of England and Wales, stated recently:2

“My overwhelming belief is that the most emphatic feature of the relationship between the judiciary and the media is that the independence of the judiciary and the independence of the media are both fundamental to the continued exercise, and indeed the survival of the liberties which we sometimes take for granted.”

Until recently there has been no set regime or statutory provision governing the relationship between the courts and the media. That relationship has evolved over New Zealand’s history.

In New Zealand’s oldest courts you will find a press bench, often inscribed with the carvings of bored young reporters.

Today, however, there is some definition of the rights of the media in courts. Sections 197 and 198 of the Criminal Procedure Act 2011 provide the media may not be excluded from court unless the court is satisfied that the security or defence of New Zealand will be prejudiced. The same general approach appears to have evolved in New Zealand in relation to civil litigation, although there is nothing in the High Court Rules on the topic, and no authoritative decision.

Media rights in court

Thus, while there is a right of the public to be in court as an aspect of the principle of open justice, media representatives have greater rights in court than ordinary members of the public. Generally, they stay in court when it is cleared.

Media representatives have a statutory definition. At s 198(2) of the Criminal Procedure Act it is stated that a member of the media is a person who is in court for the purpose of reporting on the proceedings and who is either subject to or employed by an organisation that is subject to a code of ethics and the complaints procedure of the Broadcasting Standards Authority or the Press Council.3 Any other person reporting on the proceedings with the permission of the court is also included.4

In New Zealand also the public are generally not allowed to take notes or transcribe mechanically or electronically what is said in court, while in court. This helps ensure that there are no false reports, and more importantly it is part of the checks and balances that prohibit electronic transcription and immediate transmission of what is happening in court by irresponsible persons, to mediums that are accessible by the public such as blog sites.

The rule applies to the public, not the media. The media are allowed to take notes, and are allowed to electronically transcribe. Instead of prohibiting note-taking or recording, the courts trust reporters to follow the courts’ instructions.

As they can be in court for virtually all matters, the process only works because reporters understand and adhere to their obligations. These include observing the legislative provisions that prohibit them from reporting certain matters, such as the evidence of complainants in sex cases under s 203 of the Criminal Procedure Act 2011. It also includes them observing court directions, prohibiting the publication of material that could damage a fair trial and commercially sensitive information or other material which it would be unfair or disproportionally prejudicial to publish. The key to the system is that the media know the law, and observe the court directions. A competent and trustworthy media is critical.

As the particular right of the media to be in court and report has become better articulated and understood, practices have developed to ensure that the system does not go awry. Over the last five years the practice of requiring media representatives to identify themselves when they come into court by providing a card and to sit at the press benches has become settled. The expectation that media representatives will dress and act appropriately has been set out, and as a matter of practice is most often respected by the media.

Hot points

Hot points arise between media and the courts. Obvious areas include the extent to which the courts suppress publication of names, or prohibit publication of details, and allow filming, recording and photographing. Standards are imposed on the media, along with requirements as to what they can and cannot do. From the point of view of the courts the media can be disruptive and can create issues which distract them from endeavouring to properly administer justice. They can be sensationalist or inaccurate. From the media’s perspective there can be poor access to and communication with the courts, and judges can go too far in their suppression or prohibition orders and their controls on media practices.

The relationship between courts and the media is governed by the In-Court Media Coverage Guidelines 2016,5 which apply to the District Court, High Court and Court of Appeal. The Supreme Court and other courts have their own guidelines.

These guidelines were first drafted in 1995 following the introduction of the pilot for television in courts, and have developed over the last 20 years. While they do not have any legislative force, they are generally applied by New Zealand judges and are referred to in decisions. During the highly publicised electoral expenses trial relating to John Banks, Justice Wylie used a breach of the guidelines by TV3/Media Works as a reason to revoke permission granted to that organisation to film the proceedings.6

The guidelines cover the detail of recording and filming in court and set out a regime covering applications and the processing of such applications, and the principles to be applied and the duties that arise.

There is also a media guide published by the Ministry of Justice,7 which contains a detailed commentary on a wide range of matters relevant to reporters, and includes a section on media in courts at chapter 4. The most recent edition of this publication was in 2013, but it is anticipated that a revised publication will be published this year. This media guide contains a copy of the In-Court Media Coverage Guidelines, and can be a useful hard copy or electronic resource for members of the profession as well as reporters and judges.

Cameras in court

New Zealand is unique in allowing cameras and recording in courts on a national all-courts basis. There are various key features of the New Zealand system which ensure that there is necessary protection including the right to a fair trial and the privacy of complainants and witnesses are not unduly compromised. A key feature of the system is the 10 minute rule which prohibits instantaneous publication of any filming or recording.

Over the last 10 years there have been many changes to the media scene. There is the decline of the orthodox media conduits of printed newspapers and television news, and news is increasingly obtained from other electronic sources.

This shrinking of the profit and resources of the traditional media organisations has meant that there are fewer specialist court reporters, and funding for reporters generally is on the decline. The electronic age has offered the challenge of instantaneous publication of what is being recorded in court. The astounding ability of smartphones to multi-task means that a small hand-held device can now take excellent photographs, and film or record court proceedings.

In a way both the courts and the media are equally challenged by these new developments. The media and the courts are liaising more and more on matters of mutual interest in the Media and Courts Committee, which works as an informal working group. It meets regularly, and senior members of the judiciary and media organisations discuss matters of mutual interest and ensure that there is good communication, and a considered response to new developments. There are also regular meetings that take place between judges and reporters, designed to improve mutual understanding and liaison.

Changes

As part of the research for the report for the Chief Justice on media in courts, a questionnaire was issued to New Zealand District Court and High Court Judges about cameras in court. The results, which are set out in detail in the report to the Chief Justice, were generally positive about filming in courts. 80% of Judges considered media representatives conducted themselves with courtesy and decorum. 93% reported no fair trial issues. There were, however, significant numbers who thought that the media coverage was on occasions not fair and balanced.

The panel that prepared the report considered the issue of televising and recording court proceedings afresh. It was recommended to the Chief Justice that there be no fundamental change to the reforms initiated in the 1990s, but a number of specific changes have been recommended.

The report’s recommendations have been accepted by the Heads of Bench and the Chief Justice. The recommendations include:

  • media organisations to certify the competence of their staff;
  • no one may take notes, film or record in court, unless given permission by the judge, save for members of the media;
  • provision for pre-hearings with media. Requirement for counsel to notify the court that witness understands witness protection and has chosen whether or not to be filmed;
  • only the applicant may use the recording unless the court orders otherwise;
  • a new section requiring media identification and setting out courtroom etiquette;
  • requirement for all reporting to be accurate, fair and balanced;
  • greater communication during hearings between courts and the media, including recommending pre-trial conferences in high profile cases;
  • persons under 18 not be filmed unless specifically approved by a judge;
  • no close-ups;
  • no filming of witnesses who have name suppression;
  • extension of witness protection from filming and photography for victims reading victim impact statements, Corrections Officers and contractors in the courtroom;
  • more streamlined processing of applications for coverage;
  • nominated Ministry of Justice media liaison staff members to be exclusive points of contact for particular trials; and
  • the possibility of the Media and Courts Committee being involved in monitoring and discussing examples of non-compliance with the guidelines.

It is important that the profession understands and feels part of these developments. Comments or proposals on the courts and the media are always welcome, and should be sent to the Secretary, Media and Courts Committee judicialoffice@courts.govt.nz.

Justice Asher is chair of the Media and Courts Committee.

  1. www.courtsofnz.govt.nz/In-Court-Media-Review/In-Court-Media-Review/ReporttoChiefJusticeonincourtmediacoverageF6_7_15_20150720.pdf.
  2. Lord Judge, Lord Chief Justice of England and Wales “The Judiciary and the Media” (British Friends of the Hebrew University, Jerusalem, 28 March 2011) www.bfhu.org/images/download/lcj-speech-judiciary-and-the-media.pdf.
  3. Criminal Procedure Act 2011, s 198(2)(a).
  4. Section 198(2)(b).
  5. www.courtsofnz.govt.nz/business/media-centre/media-centre/INCOURTMEDIACOVERAGEGUIDELINES2016.pdf.
  6. R v Banks [2014] NZHC 1155, [2014] 3 NZLR 121.
  7. www.justice.govt.nz/media/publications/global-publications/m/media-guide-for-reporting-the-courts-and-tribunals-edition-3.1/.
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