Open justice feels strain as our judges flex their muscles
Published 11/07/2014 | 10:00
A new guide has been produced for the judiciary in England and Wales on when to introduce restrictions on media reports from courts. It should be required reading for Northern Ireland's judges as well.
The guide states that any restriction on the usual rules "will be exceptional" and "must be based on necessity".
It also says that the "burden is on the party seeking the restriction to establish it is necessary on the basis of clear and cogent evidence" and that the "terms of any order must be proportionate – going no further than is necessary to meet the relevant objective".
An important facet of the publication of this document, Reporting Restrictions in the Criminal Courts, is that it was done in consultation with the media and lawyers. That's how things are done over there – with consensus.
The document has now been adopted by the UK's Judicial College, the Media Lawyers' Association, the Society of Editors and the Newspaper Society. To use a cliché, everyone is now singing from the same hymn-sheet on this important matter.
If our own judges would stick to the principles enshrined in Reporting Restrictions in the Criminal Courts, Northern Ireland's criminal justice system would be in a better place than it is now.
What we have experienced are confusion and uncertainty that has led some judges to act beyond the fringes of their powers, to the point that the Lord Chief Justice himself has moved to scrap many reporting restrictions.
Enforcement of its principles would also curtail another fad that has begun to uniquely affect Northern Ireland, which is to use the Article 2 (Right to Life) argument to claim that naming defendants accused, or even convicted, of serious criminal offences will be a threat to their life. I'm aware of at least four cases in the past 12 months or so.
Such a threat usually involves some paramilitary group – or that the defendant will be so emotionally unhinged by their name appearing in a newspaper that they will kill themselves. Not out of guilt for their actual crime, of course, but because they are being named by the Press.
This argument supposes that neither the Prison Service nor the health service can look after suicidal prisoners, which is patently not the case to my mind.
The Article 2 issue rarely features across the water, where they take a much more robust view of these things. "What is it about Northern Ireland and Article 2?" an eminent UK legal figure was heard to ask at a conference recently.
Now, I'm normally a fairly opinionated figure, but that's a question I have difficulty answering. What is it about the local legal system that makes it so apathetic – or even antipathetic – to open justice? Answers on a postcard please.
There's a free copy of Reporting Restrictions in the Criminal Courts 2014 for all who enter. I'll even sign it. Don't all stampede at once now.
How refreshing to see that the child abuse controversies relating to BBC stars and senior Westminster politicians are going to be investigated by Dame Butler-Sloss.
The BBC and the political establishment have serious questions to answer. After the rightful monstering the Press received over phone hacking, the BBC and the politicians need to be subjected to the most rigorous and stringent investigation.
After all, the crimes committed by the likes of Jimmy Savile and Rolf Harris were worse even than the abhorrent hacking of phone messages.
Should our own Kincora be included in the investigation, as Amnesty International suggests? Yes, in my view. The stench of Kincora has lingered for almost four decades.
It's time for the allegations to be either proven and confronted, or, equally, if there is no proof, for them to be consigned to the dustbin of history.