In The Re-Birth of the “Beat”: A hyperlocal online newsgathering model (Journalism Practice 6.5-6 (2012): 754-765), Murray Dick cites various others to suggest that routine sources are responsible for generating a significant percentage of local news reports:
Schlesinger [Schlesinger, Philip (1987) Putting ‘Reality’ Together: BBC News. Taylor & Francis: London] found that BBC news was dependent on routine sources for up to 80 per cent of its output, while later [Franklin, Bob and Murphy, David (1991) Making the Local News: Local Journalism in Context. Routledge: London] established that local press relied upon local government, courts, police, business and voluntary organisations for 67 per cent of their stories (in [Keeble, Richard (2009) Ethics for Journalists, 2nd Edition. Routledge: London], p114-15)”].
As well as human sources, news gatherers may also look to data sources at either a local level, such as local council transparency (that is, spending data), or national data sources with a local scope as part of a regular beat. For example, the NHS publish accident and emergency statistics as the provider organisation level on a weekly basis, and nomis, the official labour market statistics publisher, publish unemployment figures at a local council level on a monthly basis. Ratings agencies such as the Care Quality Commission (CQC) and the Food Standards Agency (FSA) publish inspections data for local establishments as it becomes available, and other national agencies publish data annually that can be broken down to a local level: if you want to track car MOT failures at the postcode region level, the DVLA have the data that will help you do it.
To a certain extent, adding data sources to a regular beat, or making a beat purely from data sources enables the automatic generation of data driven press releases that can be used to shorten the production process of news reports about a particular class of routine stories that are essentially reports about “the latest figures” (see, for example, my nomis Labour Market Statistics textualisation sketch).
Data sources can also be used to support the newsgathering process by processing the data in order to raise alerts or bring attention to particular facts that might otherwise go unnoticed. Where the data has a numerical basis, this might relate to sorting a national dataset on the basis of some indicator value or other and highlighting to a particular local news outlet that their local X is in the top M or bottom N of similar establishments in the rest of the country, and that there may be a story there. Where the data has a text basis, looking for keywords might pull out paragraphs or records that are of particular interest, or running a text through an entity recognition engine such as Thomson Reuters’ OpenCalais might automatically help identify individuals or organisations of interest.
In this context of this post, I will be considering the role that metadata about court cases that is contained within court lists and court registers might have to play in helping news media identify possibly newsworthy stories arising from court proceedings. I will also explore the extent to which the metadata may be processed, both in order to help identify court proceedings that may be worth reporting on, as well to produce statistical summaries that may in themselves be newsworthy and provide a more balanced view over the activity of the courts than the impression one might get about their behaviour simply from the balance of coverage provided by the media.
On Court Reporting
In her Masters Thesis from the University of Huddersfield (The importance of court reporting: an analysis into how and why court reporting is surviving in British newspapers, particularly concerning the local sector (2014)), Miriam Phipps-Bertram distinguishes between crime reporting, which “refers to the stories which will either lead to a court case or discuss the background of a case which has already happened” from court reporting, which “informs readers of the court case on the unfolding daily events in the court” (p23), the one contextualising the other.
In the UK, the open court principle plays a key part of the wider system of open justice.
If the way that courts behave cannot be hidden from the public ear and eye, this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice. The application of this principle of open justice has two aspects: as respects proceedings in the court itself, it requires that they should be held in open court to which the press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is communicated publicly. [Lord Diplock, Attorney General v Leveller Magazine Limited  AC 440 at 450A to C., quoted in inforrm blog: Open Justice and Article 6 – General Principles]
As the Press Complaints Commission (as was) Guidance Notes to Editors on Court Reporting saw it:
A fundamental principle of justice is that it must be seen to be done. It is therefore established in the United Kingdom that with certain exceptions court cases should be heard in public. This principle of open justice is acclaimed on a number of grounds: as a safeguard against judicial error or misbehaviour, as a deterrent to perjury, to enhance public knowledge of the workings of the law, to assist the deterrent function of criminal trials and to permit the revelation of matters of genuine public interest. The principle of open justice is reflected in the European Convention of Human Rights and in the International Covenant on Civil and Political Rights.
The press has a special role in this system of open justice, as indicated by the former Master of the Rolls, Lord Donaldson of Lymington: “It is not because of any special wisdom, interest or status enjoyed by proprietors, editors or journalists. It is because the media are the eyes and ears of the general public. They act on behalf of the general public. Their right to know and their right to publish is neither more nor less than that of the general public. Indeed, it is that of the general public for whom they are trustees”.
To enable journalists to report on court proceedings without fear of being accused of defamation, court reporting by the media proceeds under forms of privilege defined by the Defamation Act, 1996 that protect the publisher when it comes to reporting statements that might otherwise be deemed to be defamatory:
- absolute privilege (section 14), which allows for [a] fair and accurate report of proceedings in public before a court … if published contemporaneously with the proceedings;
- qualified privilege (section 15), which allows for “[a] fair and accurate report of proceedings in public before a court anywhere in the world” to be made without malice.
Court Reporting at the Local Level
As Miriam Phipps-Bertram describes (2014):
“Currently, court journalism is the invisible back bone for local newspapers, providing substantial, newsworthy and important human interest stories to their readership. … Contributing factors, such as a loss of staff and an increase in agency journalism … have lead to the responsibility of court reporting being passed from one journalist to another. … The loss of court specialists is a major hit to open justice…”
“Despite wanting to publish in the public interest, with finances and staff at all time low for small newspapers …, there is little room for court cases which, although help to give a better impression of crime in the area, do not interest the public.” pp 62-63
On the one hand, court reporting is seen as pulling in the audience (“We’ve just started doing a court column with all the erm, with the cases that are on at the magistrates and the number of people who tell me they get the paper just to read it to see if someone is in it, is unbelievable! It sells more papers because people want to see who’s been in court. (Harley, [one of the project interviewees] p. 16)” ibid, p45, demonstrating how “[o]ver time court reporting has become a form of ‘gossip column’, especially concerning local newspapers whose readership has a closer connection to those being reported about. … there seems to be a blurred line in between what is seen to be reported in the public interest and what is considered to be just interesting to the public.” ibid, p20, and “…court reporting still stands with an element of gossip to the local community. The public read such articles to gain information about people they possibly know.”ibid, p44). At the same time, comprehensive or systematic court reporting is too costly for the local media to provide in perhaps the same depth, or at least to the same extent, as it used to do previously (“… a number of local newspapers have now turned to publishing a summary of the daily or weekly events instead of reporting a full story as they are unable to be there at every hearing” ibid, p15, and “Despite wanting to publish in the public interest, with finances and staff at all time low for small newspapers …, there is little room for court cases which, although help to give a better impression of crime in the area, do not interest the public.” p63).
The tensions between the commercial imperative, “selection .. based around news values[,] … not only down to a lack of court reporters but also because many court cases are banal and uninteresting to read about” (ibid, p19) and “keep[ing] the readers informed of the societal changes happening in their vicinity” (ibid, p48), combined with “[a] lack of education on crime statistics [that] can lead to moral panics…” (ibid, p64) that may be further skewed by the press reporting one type of court story more than other, more representative stories, add to the challenge of prioritising what court sessions are in the first place observed by a reporter and then go on to be reported. (Indeed, it would be interesting to try to chart the number of court cases observed by one or more reporter versus the number of cases reported over time. My guess would be that it has become increasingly likely that a case will be reported if it has been observed, because with dwindling journalist resource only cases likely to be newsworthy will be assigned a reporter?)
The risks associated with the limited scope of court reporting is also commented on by Leslie Moran in “Mass‐mediated ‘open justice’: court and judicial reports in the Press in England and Wales” (Legal Studies 34.1 (2014), pp143-166):
“Both US and UK research suggests that one of the ironies of public scrutiny undertaken by the media is the ordinary routine of the courts and judicial activity falls under the radar of what counts as ‘news’ and thereby is rarely the subject of public scrutiny or a part of public knowledge. A disproportionate amount of Press time and effort is expended on reporting extraordinary and exceptional proceedings and events within those proceedings. The regularity of these reports turns them into the most common portraits of court and judicial activity that are consumed on a regular, if not daily, basis. News tends to make the extraordinary seem like the everyday.”
Furthermore, quoting Lord Judge, attributed elsewhere, Moran notes that “the ‘presence’ of the public is now [or was it ever thus?! -TH] the presence of the media, people working for the established media and, one might now add, members of the un-established media, ‘citizen journalists’” (ibid).
So at this point, given that “the vast majority of the court and judicial activity taking place at any one moment of time will not be subject to media scrutiny” (ibid), it is worth considering the mechanics by which observers might come to act as fair witnesses of the open justice process, or at least, open court proceedings.
Court Lists and Court Registers
When it comes to matters of court reporting, we can thus clearly identify three types of communication around the court’s activities:
- the announcement that a particular person is to stand trial for a particular offence;
- the reporting of the the case from the court as it progresses;
- the announcement of the outcome of a case and and sentence outcomes arising.
On the Supply of Court Related Metadata
In Reporting Restrictions in the Criminal Courts, a joint publication by the JSB, the Newspaper Society, the Society of Editors and Times Newspapers Ltd from October 2009, the availability at the time of court lists – the statement of cases to be heard in a particular court on a particular day – and court registers – which record the sentencing outcomes of cases – was described in the following terms:
5.1 The availability of court lists
Crown Court lists may be accessed over the Internet from CourtServe. Magistrates’ courts lists are available from the court offices of the court concerned and are the subject of a 1989 Home Office circular that encourages justices’ clerks to meet reasonable requests by the media for copies of court lists and the register of decisions in magistrates’ courts. The Home Secretary considered that court lists should be made available in court on the day of the hearings and, where provisional lists are prepared in advance, copies should be available on request. At a minimum the lists should contain each defendant’s name, age, address and, where known, his profession and the alleged offence. Courts will not breach the Data Protection Act 1998 by providing journalists with such information.
On 15 July 2008, the Secretary of State for Justice announced in Parliament that newspapers and other media could immediately access court registers containing the outcome of criminal cases and details of upcoming court cases free of charge. A notice was circulated to all courts and a Ministry of Justice press release [now archived] was issued to publicise the abolition of the charges, referring to the 1989 Home Office circular and previous JSB guidance. Abolishing the fee for these publications charged by magistrates’ courts since 1989, the Secretary of State for Justice, Jack Straw, said: ‘Media will now be better able to report accurately and factually, as they strive to do, on proceedings in magistrates’ courts. This move will help increase confidence in the criminal justice system. It also supports compliance with obligations under the European Convention on Human Rights to ensure that trials are held in public.
Media will be expected to meet common sense conditions (for instance, on security and destruction) relating to use of the publications. In the longer term, courts will be expected to publish their registers electronically, a less resource-intensive means of production.
On 1 July 2009, HM Courts Service issued the ‘Protocol for Sharing Court Registers and Court Lists with Local Newspapers’, agreed between HM Courts Service, the Newspaper Society and the Society of Editors. This includes agreement by HMCS to provide copies of court registers and court lists by e mail wherever possible, not to charge for copies of them and to ensure that they contained the details of any reporting restrictions when they are first made. If HMCS is unable to supply e-mail copies, newspapers could be asked to collect a hard copy or pay the cost of postage. The protocol also encourages similar supply by the Crown Courts:
‘Although there is no direct equivalent to the magistrates’ court register in the Crown Court, similar principles are to apply insofar as they can. Given the relatively small number of cases heard in the Crown Court and the fact that they have in the main come from the magistrates’ court, it is recognised that newspapers are often already alerted to their content and interest value. Crown Court staff are encouraged to cooperate with local newspapers when they make enquiries.’
Increasingly, the existence of reporting restrictions is shown on Crown Court lists under the name of the relevant case – allowing a ready means of checking whether there are such restrictions in place. Work is under way with the Ministry of Justice on a system for recording reporting restrictions orders and facilitating media checks and it has agreed that all court registers must contain references to reporting restrictions (when first made).
Note: Updated guidance on Reporting Restrictions in the Criminal Courts was published on May 6th, 2015.
The Protocol for Sharing Court Registers and Court Lists with Local Newspapers can be found on the Society of Editors’ website: Protocol for Sharing Court Registers and Court Lists with Local Newspapers [Word doc]. It stipulates that Her Majesty’s Courts and Tribunal Service (HMCTS) will:
– wherever possible, provide copies of court registers and court lists marked PROTECT – PERSONAL DATA by e-mail. Ensure the email contains the following disclaimer: ‘This email contains information intended to assist the accurate reporting of court proceedings. It is vital you ensure that you safeguard the personal information included and abide by reporting restrictions (for example on victims and children). HMCTS will stop sending the data if there is concern about how it will be used.’
– not charge for copies of court registers or court lists.
– if unable to provide copies of the court register or lists by e-mail, ask the newspaper to collect a hard copy or to pay the cost of postage.
– ensure that court registers contain details of any reporting restrictions when they are first made;
– ensure that magistrates’ court lists, which are supplied or made available to newspapers on request, contain each defendant’s name, age, alleged offence and address.
– take steps to satisfy themselves that they are providing information to a genuine journalist or agent. (Paper copies must be collected in person by a representative from the newspaper who must produce ID such as a UK Press Card Authority or a letter from the editor authorising collection, together with suitable ID. The package must be signed for and a record kept of the collection.) Ensure that any email lists/contact details of newspapers and journalists are reviewed regularly for accuracy (at least twice a year).
– reserve the right to refuse to disclose data if there is a concern about how that information will be used (e.g. sold to a third party, used to create internet lists of sex offenders etc).
As well as the pronouncing on the availability of court lists, the Reporting Restrictions in the Criminal Courts also had something to say about reporting restrictions:
5.2 Identification of those involved in court proceedings
At common law, it would be considered inimical to the administration of justice to protect the identity of magistrates presiding over proceedings. Their identity should be made known to press and public. (See R v Felixstowe Justices ex p Leigh 1987 QB 582, R v Evesham Justices ex p McDonagh (1988) 2 WLR 227).
The media are particularly concerned about accurate identification of those involved in court proceedings. Announcement in open court of names and addresses enables the precise identification vital to distinguish a defendant from someone in the locality who bears the same name and avoids inadvertent defamation. The Home Secretary issued Circular No 78/1967 in response to press concern. In addition to recommending that courts supply the press with advance copies of court lists, the circular encouraged courts to ensure the announcement in open court of both the names and the addresses of defendants. The circular acknowledges that a person’s address is as much a part of his description as his name. It states that there is therefore a strong public interest in facilitating press reports that correctly describe persons involved. Statutory reporting restrictions, even when automatic, provide for the lawful publication of magistrates’ identities and names and addresses of defendants and others appearing before the courts. Common law also restricts the circumstances in which names and addresses can be withheld from the public or reporting restrictions imposed to prevent or postpone their publication (see above and R v Evesham Justices ex parte McDonagh (1988) 2 WLR 227)
As far as the news organisations go, a duty of care over the appropriate handling and use of the data is placed on them.
The TLDR summary of the Criminal Justice System (CJS) guidance on Publicising sentencing outcomes (June 2011) notes that “Verdicts and sentences in criminal cases are given out in open court and are a matter of public record. There should be a presumption in favour of the police, local authorities and other relevant criminal justice agencies publicising outcomes of criminal cases and basic personal information about convicted offenders so as to: reassure the public; increase trust and confidence in the CJS; improve the effectiveness of the CJS; discourage offending and/or re-offending” whilst also recognising that “the internet gives many more opportunities to make information readily available to the public. But alongside these increased opportunities, come a number of data protection issues that need to be considered.” For example, “[p]articular care should be taken if disclosure of a sentencing outcome also reveals personal information about a person other than the offender.” Guidance is also provided about the period over which notice of a conviction should be made:
There is no hard and fast rule about how quickly a conviction should be publicised and how long for – but it is advisable that any publicity aimed at local communities (i.e. police force areas or more locally) should be ‘timely’ and ‘time-limited’. If your organisation does not already have specific protocols in place, as a rule of thumb, we recommend that convictions remain publicised for no longer than a month, and that any such publicity material (web page, leaflet, posters) be removed within six months of the conviction being recorded (this does not apply to regulators discharging statutory duties or objectives by publicising enforcement action). Removal of the relevant material within the suggested time limits is not a specific legal requirement under the Data Protection Act 1998 (DPA). However, the Rehabilitation of Offender’s Act 1974 (ROA) is relevant in this context. Delaying the publication of sentencing outcomes increases the risk that a sentence may become spent before it is publicised or removed from a website, and that publication may therefore breach the provisions of ROA.
No restrictions were placed on web communication of sentencing outcomes. Indeed, quite the opposite: “[c]onsider use of social networking sites – There is nothing to prohibit you using social networking sites for the purposes of publicising sentencing outcomes.”
Further guidance around communication strategies for magistrates courts in particular can be found in the Magistrates’ Court Manual (found via an FOI request made on 21 May 2014 to Her Majesty’s Courts and the Tribunals Service via WhatDoTheyKnow). In particular, Section 32 (Communications) clarifies the guidance to magistrates courts as follows:
1.5 A protocol on providing court registers and court lists
There is a longstanding policy encouraging magistrates’ courts to provide copies of the court register and court lists to the media to ensure they are able to accurately report cases heard.
The Government believes that assisting newspapers to report what is happening in their local courts is important for increasing confidence in the criminal justice system. It also supports compliance with obligations under the European Convention on Human Rights to ensure that justice is open and trials are held in public.
The previous Government decided that the courts should not normally charge newspapers for the supply of court registers or court lists, whatever the form in which they are supplied. Following this a protocol on providing the media with magistrates’ court registers and court lists was agreed with the media.
Court staff are encouraged to co-operate with local newspapers when they make enquiries. The protocol is available on the HMCTS intranet on the criminal courts works webpage under guidance and manuals: here Courts should remain mindful of the sensitivity attached to registers and lists, which could contain case details for cases with reporting restrictions attached. Courts must add a disclaimer when emailing court registers and lists to newspapers and journalists saying: ‘This email contains information intended to assist the accurate reporting of court proceedings. It is vital you ensure that you safeguard the personal information included and abide by reporting restrictions (for example on victims and children).
HMCTS will stop sending the data if there is concern about how it will be used.’
Courts must also ensure that any email lists or contact details held for the media are reviewed at least twice a year for accuracy.
The Criminal Procedure Rules Part 5 as in force on 7 April 2014 (via the MoJ criminal courts Rules and Practice Directions webpage), which govern the practice and procedure in criminal cases in magistrates’ courts, the Crown Court and the Court of Appeal (Criminal Division), and the practice and procedure in extradition appeal cases in the High Court, includes the following guidance on court records:
Section 2 – Court records
Supply to the public, including reporters, of information about a cases
[Section (4) provides for exemptions, eg arising from reporting restrictions]
5.8.(6) The information that paragraph (4) requires the court officer to supply is—
(a) the date of any hearing in public, unless any party has yet to be notified of that date;
(b) each alleged offence and any plea entered;
(c) the court’s decision at any hearing in public, including any decision about—
(i) bail, or
(ii) the committal, sending or transfer of the case to another court;
(d) whether the case is under appeal;
(e) the outcome of any trial and any appeal; and
(f) the identity of—
(i) the prosecutor,
(ii) the defendant,
(iii) the parties’ representatives, including their addresses, and
(iv) the judge, magistrate or magistrates, or justices’ legal adviser by whom a decision at a hearing in public was made.
(9) The court officer must publish the information listed in paragraph (11) if—
(a) the information is available to the court officer;
(b) the hearing to which the information relates is due to take place in public; and
(c) the publication of the information is not prohibited by a reporting restriction.
(10) The court officer must publish that information—
(a) by notice displayed somewhere prominent in the vicinity of the court room in which the
hearing is due to take place;
(b) by such other arrangements as the Lord Chancellor directs, including arrangements for
publication by electronic means; and
(c) for no longer than 2 business days.
(11) The information that paragraph (9) requires the court officer to publish is—
(a) the date, time and place of the hearing;
(b) the identity of the defendant; and
(c) such other information as it may be practicable to publish concerning—
(i) the type of hearing,
(ii) the identity of the court,
(iii) the offence or offences alleged, and
(iv) whether any reporting restriction applies.
It is clear, then, that the principle that court lists and court registers should be made available in general to the media, and at least on request about a specific case to a member of the general public.
Although the focus on this note is on the uses to which the local media might put official court notices (court lists and the court register) and not on reporting of cases in progress, it is perhaps worth noting in passing the following practice guidance form the Courts and Tribunal Judiciary on The Use of Live Text-Based Forms of Communication (including Twitter) from Court for the Purposes of Fair and Accurate Reporting, not least because it again raises a distinction between the activities of the press and those of a member of the public:
9) Where a member of the public, who is in court, wishes to use live textbased communications during court proceedings an application for permission to activate and use, in silent mode, a mobile phone, small laptop or similar piece of equipment, solely in order to make live, textbased communications of the proceedings will need to be made. The application may be made formally or informally (for instance by communicating a request to the judge through court staff).
10) It is presumed that a representative of the media or a legal commentator using live, text-based communications from court does not pose a danger of interference to the proper administration of justice in the individual case. This is because the most obvious purpose of permitting the use of live, text-based communications would be to enable the media to produce fair and accurate reports of the proceedings. As such, a representative of the media or a legal commentator who wishes to use live, text-based communications from court may do so without making an application to the court
On the Use By the Media of Court Lists
If, then, the local press are to be provided with court information almost as a matter of procedure, how then might the press make use of it? (We will return to practical issues surrounding the supply of this data in a later section.)
In a paper whose aim was “to establish the editorial mechanisms which transform ‘the real business of the courts’ into court news'”, (Machill, Marcel, Beiler, Markus & Hellmann, Iris, The Selection Process in Local Court Reporting Journalism Practice, 1(1), 2007), Machill et al. studied the court coverage of four Dresden newspapers and the means by which stories were identified and selected:
“The starting point for this study was the observation that the press can only report on part of the thousands of court proceedings that take place every day. Accordingly, the aim was to describe the selection process in court reporting more precisely and to determine the essential selection criteria employed by journalists. This was examined for local court reporting by daily newspapers in Dresden.'”
The process of selecting which court sessions to observe begins with an inspection of the court lists:
These trials are in each case scheduled for the coming week and the lists sent to the local media. The list includes the date and the time of the trial, the name of the presiding judge, the alleged crime, the name of the accused and, if available, the name of the defending counsel as well as the reference number. The reference number reveals, inter alia, whether an order imposing punishment is involved and whether the case is to be held before a single judge or a jury, the department to which the responsible judge and public prosecutor belong and the serial number of the case. These data provide the court reporters with an overview of the trials that have been scheduled. After preselecting, the reporters then fax the list with the hearings they have indicated back to the judge responsible for press relations or inform her by telephone of the hearings that interest them
The reference number that identifies “whether an order imposing punishment is involved and whether the case is to be held before a single judge or a jury, the department to which the responsible judge and public prosecutor belong” is a form a of metadata associated with a court appearance. Presumably, the metadata may be used by an experienced court reporter – or an algorithm – to identify hearings where a sentencing will occur, as well as the sort of case being heard (from the investigating department, though it is not clear at what level of granularity the code operates. For example, it might simply distinguish between criminal court, civil court, family court, etc.)
A second form of discovery of cases of interest, such as on the day of a trial for instance, may result from a human tip-off:
The journalists learn about the trial dates mainly via the hearing lists, in part, however, also via lawyers. As a rule, the lawyer is the journalist’s friend: “Every so often the lawyers give you a tip if a trial is in progress which does not appear as though one should attend it but is perhaps quite interesting” (DNN editor).
Having identified cases of interest:
On a Friday in each case the judge holds a press meeting with the court reporters to which she brings the indictments relating to the hearings marked down by the journalists so that they have the opportunity to look through the indictment and she can answer any questions. The publication of press releases about hearings that are considered important is the exception at the Dresden county court. Consequently, the participating observation of these press meetings permitted closer observation of a large part of the selection process performed by the court reporters.
This then represents a second stage of filtering based on inspection of more detailed information about cases identified as possibly of interest, after which cases may be classified as falling into one of five different groups:
- Interest category 1 (IC 1, very little interest): After briefly reading the indictment or hearing the explanations of the judge the court reporters quickly rejected the case.
- Interest category 2 (IC 2, little interest): After reading the indictment the court reporters asked the judge for some further information (e.g. age and profession of the accused, the defending counsel) and then rejected the case.
- Interest category 3 (IC 3, moderate interest): A short discussion additionally took place among the court reporters. The tabloids applied for permission to take photos.
- Interest category 4 (IC 4, great interest): Discussion amongst the court reporters and the judge was very lively. For example, the (in part already known) past history of the case was discussed, there was speculation about the reasons for the deed and the case was provided with (sometimes humorous) commentaries. Applications for permission to take photos and, in part, to shoot film were submitted.
- Interest category 5 (IC 5, very great interest): It could be seen from the full, often very detailed discussion that, as a rule, the court reporters already had extensive previous knowledge of the case and had in part already reported on the case (in their own police reporting or reporting in the run-up to the trial). Permission to take photos and shoot film was applied for.
What Makes a Court Case Likely to be “Of Interest”?
“Newsworthiness” plays a key role in editorial decision making when identifying subjects likely to appeal to readers as well as meeting the news agenda. If court coverage is not universal (that is, if court listings and court registers are not published comprehensively, and not all court proceedings are observed), then there is some selection of which cases do get coverage, both in terms of publication and observation. (For example, publishing that X is to appear in court, but not that Y or Z; observing the proceedings of X and Y but not Z; publishing the sentencing outcome of X but not Y.)
There may also be an element of locking oneself into a case in order to report it fairly: if a news outlet starts covering a long-lived case and reporting it from the court, bringing the contents of those proceedings to the attention of the public, it should follow reporting of the case through to completion so that the defendant it represented fairly and the audience informed about the outcome. For example, Chapter 64 (The rules of court reporting) of The News Manual suggests that “[i]t is essential that a newspaper or broadcasting station which starts to report a court case, continues to do so every day until it is finished. Otherwise the report of the case as a whole cannot be fair, and it will then lose the protection of privilege.”
So by what criteria, then, might court cases of potential interest be filtered for coverage by journalists who cannot cover all cases? Machill et al. suggest the following:
When selecting topics, media orientate themselves towards certain criteria. … When selecting topics, journalists orientate themselves towards event characteristics (news factors) which therefore determine the publication-worthiness (news value) of an event. Court proceedings can meet a large number of such news factors: crime, tragedy, drama, local connection, elite persons, personalization or negativism. Höbermann (1989, Der Gerichtsbericht in der Lokalzeitung. Theorie und Alltag, Baden-Baden: Nomos.: 99ff.) identifies five selection criteria for local court reporters: a story—accordingly, something interesting exists in the case of (1) a local connection, (2) violent crimes, (3) nice human stories, (4) in the case of something extraordinary, sensational as well as (5) when sexuality plays a part.
In the UK a highly influential study was published in 1977 by Steve Chibnall [Law-and-order News: an analysis of crime reporting in the British press, 1977, London: Tavistock Publications] who determined eight characteristics of newsworthiness for crime reporting: immediacy, dramatization, structured access, novelty, titillation, conventionalism, personalization, simplification.
According to Moran [“Mass‐mediated ‘open justice’: court and judicial reports in the Press in England and Wales” (Legal Studies 34.1 (2014), pp143-166)], Chibnall’s description of “‘news values as ‘the criteria of relevance which guide reporters’ choice and construction of newsworthy stories … tacitly accepted and implicitly understood …’”:
… can add to our understanding of the media’s apparent preoccupation with these particular moments in the court process and thereby with particular aspects of the judicial role. One of the ‘news values’ identified by Chibnall is ‘immediacy’, which, he argues, generates the media’s preoccupation with events rather than process. ‘Events’ fit a desire for ‘what’s new’, ‘what’s just happened’ and moments that can indicate ‘significant change’. The prevalence of ‘start’ and ‘end’ events in news reports might also be explained by another news values identified by Chibnall – ‘dramatization’, which he associates with ‘action’, ‘spectacle’ and ‘impact’. A third ‘news value’ with which these particular courtroom moments and judicial acts may resonate is ‘simplification’. ‘Starting’ and ‘ending’ are moments that punctuate what is otherwise a messy, complex and potentially contested process. They have the effect of arresting the flow of events, which enables the social relations that exist in the dispute to be mapped, thereby rendering them more legible, with the potential for further journalistic simplification into stories about winners and losers, the guilty and the innocent, justice done and justice denied.
Moran also reviews “a pattern that Haltom [W Haltom Reporting on the Courts: How the Mass Media Cover Judicial Actions (Chicago: Nelson Hall, 1998)] identifies in his survey of news media reports of court and judicial activity in the USA.”:
News reports, he concludes, are dominated by particular court activity that he describes as ‘the start’ and ‘endings’. Between those two moments, he explains, court proceedings and judicial activity tend to disappear from media consideration. One of the reasons he gives for this is that news is event-orientated. It shows a preference for what Haltom calls ‘performative utterances’. These are particular moments, or types of activity, in court proceedings that punctuate what is otherwise a much longer process. These ‘performative utterances’ are points in the process that can be characterised as having a fixed or formal quality. Haltom suggests that these particular moments resonate with journalistic demands for accuracy and objectivity.
In choosing what to report then, it seems as if the structure of court process, which has several recognisable stages or phases within it cleanly separated by particular procedural elements (the charging of an individual, the announcement of a court date and the charges the be laid, the outcome of the court case, the laying of an appeal, and so on) provides a model for constructing an automatic process to support in the reporting of court activities that reflects the way court proceedings are already reported.
One view of the actual criminal court process is described in the following diagram taken from A guide to criminal court statistics (March, 2015), published by the Ministry of Justice:
Returning to Machill et al., “which selection criteria do the court reporters or their editorial teams decide which hearings are selected and which hearings are reported on?”
- One dimension is the seriousness of the deed or whether the trial represents “something bigger”. In this regard the DNN editor also orientates himself towards, for example, the reference number since it reveals whether a trial is being heard by jury. For the Bild reporter, the number of witnesses also plays a part in selection as long as they are not all police officers. If “someone was considerably harmed, considerable damage to property was caused or if there were considerable consequences for someone’s health”, the corresponding trials find their way into the preselected group in the case of the reporter from the Sächsische Zeitung, too. The same applies to repeat offenders and repeated crimes.
- A selection dimension which can be described as diversity of reporting or unusualness of the crime comes into play here. The DNN reporter emphasizes the latter: “Journalism depends for its existence on reporting the unusual”. The reporters and their editorial teams therefore attempt to provide as wide a range of court reporting as possible. However, the underlying motivation is not to mirror court reality but to avoid boring the reader with always the same types of trial. … every so often something “light” should be included. He mentions that, in particular, unusual and droll cases are suitable for entertaining the reader and arousing emotions. Absurd disputes between neighbours or trials which are unusual due to the fact that a particularly young or old person has committed the crime are given as examples here.
- A third selection dimension is the degree to which the readers are directly affected by a case or the “service character” of a court report. These include, on the one hand, common or trivial offences which, in the opinion of the journalists that were interviewed, almost every reader occasionally commits. Now, however, someone is unexpectedly in court because of it and sees himself suddenly confronted with the criminal law. They are cases which the reader assumes could “happen to anyone” or cases where someone is supposedly “wrongly confronted with the law” (SZ reporter).
- The prominence of the figures involved, whether the accused, the victim or the witnesses, represents a further selection dimension. In this connection the DNN reporter also mentions the “calibre of the defending counsels”. If the names of certain known defence counsels appear in the trial lists, an otherwise minor trial may be worth reporting. The judge responsible for press relations at the county court drew attention to a factor known from news selection research as a further selection criterion: the simplicity of a case. “Where it becomes complicated as, for example, in cases concerning economic offences, the journalists are mostly happy to reject it, unless a really well-known company is involved”.
- The possibility of illustrating a court report with a photograph was named as an essential selection factor by the heads of the editorial teams of the two tabloids. An exciting trial of course has even greater chances if there is a good basis for photos.
Original caption: FIGURE 1 Selection steps and criteria in local court reporting based on the example of the Dresden county court and the four Dresden daily newspapers. Taken from: THE SELECTION PROCESS IN LOCAL COURT REPORTING, Marcel Machill, Markus Beiler, Iris Hellmann. Journalism Practice, Vol. 1, Iss. 1, 2007
To a certain extent, the metadata associated with a court case that appears in the court list may provides a means by which we can start to rank cases automatically according these criteria. For example, names of individuals may be reconciled against names of local council members or directors of local companies or other notable local individuals; charges commonly laid against individuals may be associated with “seriousness points” that identify how serious the charge is likely to be. (Similarly, when looking at court registers, scoring reports based on sentence outcomes may help prioritise or otherwise rank possible stories of interest; sexual offences may be identified and highlighted as potentially being subject to reporting restrictions.) The age of individuals may help identify cases involving youths that may be subject to reporting restrictions. Identifying the informant in a case – or a the frequent mention of the same informant across several cases in the same court session – may identify a particular “class” of actions taking part in the court.
In terms of the range and distribution of stories published, it was noted that “the seriousness of the deed is not a necessary criterion of selection with newspapers preferring variety in reporting” and further that “the selection undertaken by journalists is not oriented towards the shares of the crimes heard at the county court. Evaluation of the trial lists revealed that in the two weeks of the study the most frequent criminal trials related to violations of the highway code (27 per cent), theft and embezzlement, deceit and breach of trust (15 per cent each) as well as crimes against physical well-being (8 per cent). The court reports therefore do not reflect court reality during the study period.” In other words, the distribution of court stories reported in the press does not follow the distribution of cases heard by the courts and as such does not necessarily represent the everyday concerns of the court, or as Phipps-Bertram put it, “[the] representation of the social structure of a local community”.
In an “analysis of the news reports that make up [a] one-day snapshot of massmediated ‘open justice’” [Moran, Leslie J. “Mass‐mediated ‘open justice’: court and judicial reports in the Press in England and Wales.” Legal Studies 34.1 (2014): 143-166], Leslie Moran reviews news coverage in the UK of court coverage in a wide range of newspapers (ten national ones, fourteen regional ones), on a single, otherwise undistinguished day in 2012.
“An analysis of the news reports in the one-day snapshot offers some support for Haltom’s finding that news reports tend to cluster around particular moments in the court process. …
Reports that deal with the High Court provide an opportunity to identify moments in the civil process that make ‘starts’ and ‘endings’. … interim moments [such as applications for injunctions or judicial review] provide a useful opportunity to reflect on Haltom’s terms: are these ‘endings’ or ‘start’ points? In each case they may be both, being the end of one stage of the process and the start of the next stage.
Fishman’s [M Fishman Manufacturing the News (Austin, TX: University of Texas Press, 1980)] research offers some insight into the preoccupation with verdicts, sentencing decisions and final judgments. These all that represent moments of ultimate disposition in what has been a long and complex justice process. The verdict is the ultimate disposition of the facts and of guilt or innocence. The sentence is the ultimate disposition of justice and punishment. The delivery of a judgment in a civil case has similar qualities. … These particular phases in the process are, Fishman argues, critical for reporters, as they are not only moments in a process that are relatively easy to identify but they are final opportunities to report. In addition, he notes, ‘. . . the disposition of the case provides the news worker with a readymade scheme of relevance’. If this might explain the particular significance of the delivery of the judgment in reports about the work of the UK Supreme Court, how are we to make sense of the report about the granting of leave to appeal or other ‘start’ events? First, Fishman notes these moments also have the quality of ‘dispositions’. Secondly, one of the reasons for reporting them is that it opens the possibility for future reports, for the generation of ideas of continuity of reporting. They are important not so much because of the substance of the disposition, but because they open up the possibility for future reports. All of this suggests that Haltom’s terms need to be used with some caution. At best, their utility is in the way in which they draw attention to what Chibnall calls the ‘event’ orientation of news. What other moments in the courtroom process satisfy the ‘news values’ identified above?
Remand decisions, adjournments and appeal decisions are types of judicial activity that make it as news ‘events’ that punctuate the Crown Court process. The reports in the sample that deal with the activities of the civil courts also suggest that a variety of events have the capacity to make it as ‘news’. The spectrum ranges from reports that refer to plans to bring an action in the High Court to reports that refer to the enforcement of a High Court judgment already delivered. These findings echo Fishman’s analysis of what he calls the ‘bureaucratic phase structure’ of the justice process.110 This structure provides a multiplicity of ‘dispositions’.
Each disposition provides a scheme of relevance that potentially meets the news value needs of those making news stories. In their combination, they provide an episodic structure. But Soothill and Walby’s [K Soothill and S Walby Sex Crime in the News (London: Routledge, 1991)] and Haltom’s research suggest that this episodic quality only exceptionally results in multiple reports of the same case in successive publications.”
On the Publication of Court Related MetaData
In a blog post from 2009, Opening up court reporting for UK hyperlocal websites, hyperlocal news activist Will Perrin commented on a consultation published at the time by the CJS on Engaging Communities in Criminal Justice that made the following proposal:
Making court outcomes accessible online
207. We also announced, in September 2008, our intention to provide the outcomes of criminal court hearings on a public-facing website. This will provide the final outcome of court hearings (i.e. when verdicts are declared and sentence passed, where appropriate) as this is considered the information of most interest to communities, and will keep the amount of information available more manageable. Information on interim hearings, committals and cases sent direct to the Crown Court will remain available through existing channels.
208. Users will be able to access the type of offence, the date of the offence (where this is known), the verdict and any sentence passed by the court. It is recognised that the provision of personal information (such as the name, address and age of the defendant) helps communities to relate to the process and builds community confidence in the justice system. However, the benefits of providing this information need to be balanced against the rights of individuals and the wider interests of society. At this stage, therefore, we intend to publish only the name and town of residence of the defendant, but we welcome comments on whether this is the right level of information to provide.
The paragraphs that particularly concerned Perrin – and that were quoted in his post – are as follows:
210. It is clear that there needs to be a balance between providing communities with
information on court outcomes, which is in the public domain, and the need to ensure that
such information is not misused. This issue is particularly pertinent because of the power
of the internet to collect and make available information from a wide range of sources, and
the difficulties of regulating the way in which such information is stored and reused.
211. We believe that it is not in the public interest to facilitate the creation of uncontrolled, privately held databases [my emphasis], and therefore intend to place the following restrictions on how information is accessed:
– Access to court outcomes online will require registration at level 1 of the e-Government standards66 to provide substantial assurance that the registrant’s identity has been verified.
– Registered users will be able to choose to see results for two courts of their choice; changing these preferences will require application to the systems administrator. Users will then be able to search all results from these two courts from the past four weeks.
– Information on the website will be copy protected so that it cannot be copied and pasted into other documents.
Responding to the concern raising i paragraph 211, he writes: “If say The Times or the Islington Gazette reports an individual arrest, charge or trial in progress in the paper, it also appears online. At no point do the articles link forward to the outcome of the trial if the subject is found innocent. They effectively create a primitive unregulated database online.” He later updates the post to point to “Wigan World, that has a very useful, easy to follow and searchable list of local magistrates court results. This seems to be an ideal way to proceed, justice being seen to be done by the community at large,”, illustrated by a screenshot of the page at the time:
Here’s what the page looks like today:
It seems as if collation and persistent (re)publication of the information via a database now manages to contravene the Data Protection Act?
Other Data Protection Act Issues
A recent letter made available via an FOI request to the Information Commissioner’s Office shows ICO: Samaritans Radar failed to comply with Data Protection Act demonstrates how access to public information, in that case shared via social networks.
According to the information you have provided, the Radar app was a web-based application that used a specially designed algorithm that searched for specific keywords within the Twitter feeds of subscribers to the Radar app. When words indicating distress were detected within a Tweet, an email alert was automatically sent from the Samaritans to the subscriber saying Radar had detected someone they followed who may be going through a tough time and provided a link to that individual’s Tweet. The email asked the subscriber whether they were worried about the Tweet and if yes, they were re-directed to the Samaritans’ website for guidance on the best way of providing support to a follower who may be distressed. According to your FAQs, you also stored Twitter User IDs, Twitter User friends’ IDs, all tagged Tweets including the raw data associated with it and a count of flags against an individual Twitter user’s friends’ ID. These unique identifiers are personal data, in that they can easily be linked back to identifiable individuals.
Based on our understanding of how the application worked, we have reached the conclusion that the Radar service did involve processing of personal data. It used an algorithm to search for words that triggered an automated decision about an individual, at which point it sent an email alert to a Radar subscriber. It singled out an individual’s data with the purpose of differentiating them and treating them differently. In addition, you also stored information about all the Tweets that were tagged.
… Our guidance in our Personal Information Online Code of Practice makes it clear that although people post personal information in a way that becomes publicly visible, organisations still have an overarching duty to handle it fairly and to comply with the rules of data protection. …
It is our view that if organisations collect information from the internet and use it in a way that’s unfair, they could still breach the data protection principles even though the information was obtained from a publicly available source. It is particularly important that organisations should consider the data protection implications if they are planning to use analytics to make automated decisions that could have a direct effect on individuals. Under section 12 Of the Data Protection Act, individuals have certain rights to prevent decisions being taken about them that are solely based on automated processing of their personal data. The quality of the data being used as a basis for these decisions may also be an issue.
… As our recent paper on Big Data explains [Big Data and Data Protection [?]], it is not so much a question of whether the data accurately records what someone says but rather to what extent that information provides a reliable basis for drawing conclusions. …
Our Personal Information Online Code of Practice says it is good practice to only use publicly available information in a way that is unlikely to cause embarrassment, distress or anxiety to the individual concerned. Organisations should only use their information in a way they are likely to expect and to be comfortable with. Our advice is that if in doubt about this, and you are unable to ask permission, you should not collect their information in the first place.
I wonder whether any advertising apps that make use of harvested, publicly shared data might end up being argued to cause embarrassment, if nothing else…? (For example, see section 12 of the Data Protection Act on Rights in relation to automated decision-taking..)
Similar data protection concerns may also arise when third parties process data that includes personal data published under an open license in the form of a public register by the maintainer of the register. However, if we can argue that a reason for publishing public registers is that people can be held to account, then processing the personal details included on the register for the purposes of investigation into matters relating to the matter of the registered and activities of a person so registered insofar as they impinge on or relate to the registered activities may perhaps be argued to be a fair use of the data?
On the Publication of Court Listings and Court Registers by the Courts
Information relating to court business seems to be managed using an IT system known as Libra, which appears to have been plagued by problems since even before it was made available to the courts. (See for example the National Audit Office (NAO) report from 2003: New IT Systems for Magistrates’ Courts: the Libra Project [PDF]; or the House of Commons Public Accounts Committee’s November 2003 report on New IT systems for Magistrates’ Courts: the Libra project. Libra is currently operated by Capita, following a corporate acquisition in 2013 (Capita acquires justice software firm STL).)
In a blog post from February, 2014, Courts listing data – one step back, Perrin reported on a paper tabled by a representative of the Crime Directorate of HM Courts & Tribunals Service to the Crime and Justice Sector Transparency Panel, on which Perrin sat,
The main difficulty with such an approach is that the data within Libra is not held in a way in which it can be filtered to exclude or identify those cases where there is a reporting restriction and does not always have the relevant data fields completed to recognise where a case ought not to be reported (for example youth cases). Using a solution such as this would, in effect, mean that HMCTS would be knowingly disclosing information in breach of any instruction on several cases every day.
Overall the conclusion is that a quick, affordable solution, even if the raw data could be manipulated into usable format by those we allow access, does not offer the required safeguards and is therefore not feasible. As such we propose to revert to the original proposal and ensure that the Common Platform has transparency requirements at its heart so that publication (or access to information / data) of magistrates’ court lists can start when the system goes live, which is planned for 2016.
An annex to the paper further identifies “a practical issue in that a case, when published on a court list, may not be subject to a reporting restriction, but such a restriction is subsequently made at the hearing. In addition it must be recognised that, where the restriction was made at a previous hearing, this solution would still publish the skeleton details. Libra does not hold a ‘reporting restriction’ flag, and hence there is no way to easily filter out or mark these cases. We could ask the suppliers for a solution to check every previous hearing for certain result codes to determine this but that would be more costly and still wouldn’t catch all.”
Whilst one of the general concerns raised by Perrin is that “[a] regular member of the public still can’t find out what is happening in their local magistrates court and when”, there is also the more particular issue that the media, who as we have seen typically represent the public as the participatory observers in the practice of open justice, cannot easily prioritise their limited resources when it comes to the selection of which court sessions to observe. There is perhaps a related tension here where we might argue that in any case the process that determines which court sessions the media cover is subject to bias and is not a fair sample. This bias may be further reinforced when it comes to what sorts of cases do receive coverage, with what frequency and to what extent. Minor traffic offences tend not to be the most newsworthy of stories. However, if we unconsciously expect the press to cover particular sorts of events on the basis of newsworthiness, howsoever defined, we perhaps assume that the press have a reliable mechanism by which they can detect such court proceedings, when in fact perhaps they don’t.
I realise there is a risk of circularity in argument here, or at least a conflation – and confusion – of issues relating to how court proceedings as observed and then reported are distributed. If w take the following few of the process, we see that court lists as provided to the media may not be the same as the final court list, that the not all cases in the final court list might be heard, that not all proceedings will be observed, and that not all proceedings, including observed proceedings, will be reported.
Generating Timely Summary Statistics from Court Lists and Court Registers
Whilst there may be concerns associated with the processing of personal data as such released via court documentation, the provision of such material to the media does provide them with record level data that can also be used to generate summary level statistics. The Ministry of Justice regularly release statistics relating to the criminal justice and court system (for example, see the Criminal justice statistics collection or the Justice Data Lab statistics collection). For a summary, see A Guide to Criminal Court Statistics, March 2015. Note that the December releases also appear to release record level sentencing datasets (as for example in the case of December 2013; the December 2014 data should be released on May 21st, 2015). For an example of working with the record level data, see Accessing and Visualising Sentencing Data for Local Courts or More Dabblings With Local Sentencing Data.
BY working with record level data on a weekly basis, local media could chart informal summary statistics at the weekly or monthly level demonstrating the current areas of concern or activity within the local justice system, at least in terms of recorded convictions.
Providing media with access to record level data relating to court activity in a timely way may be used to support the practise of open justice. At a time when local media suffer pressures of time, being able to automatically process such information in order to help “pre-filter” court records and provide ranked listings of cases that might provide one way of helping support better court coverage. Earlier this year, a report described how the BBC “is investigating buying content from local newspapers and setting up a fund to pay for court reporting.” (BBC mulls paying local newspapers for content and fund to pay for court reporting). The same report described “a joint industry event [hosted by the BBC] looking at data journalism at a local level” (an event I delivered a session at), quoting BBC Head of News James Harding as saying: “On data journalism we are on the cusp of something quite extraordinary in the way we can hold public services to account. We are just beginning to understand the potential of data journalism”. Gaining access to court data – and then processing it in an appropriate way – is something that I think could be interesting to explore.