“Justice is not being seen to be done – and we’re all the poorer for it”- Research on reporting in criminal courts

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By Dr Tom Smith.

In January 2018, researchers from the School of Journalism (Phil Chamberlain and Sally Reardon) and the Department of Law (Marcus Keppel-Palmer and Tom Smith) supervised journalism students for a week of observations in Bristol Magistrates’ Court. It took three days before they spotted a news reporter. The students sat through more than 200 cases, with the vast majority going entirely unreported in mainstream media

It’s been a complaint for many years that criminal courts are not being covered sufficiently by reporters. It requires a particular skill set, and too many of today’s depleted newsrooms don’t have the resources to spare for such work. High-profile cases – such as the recent trial of Ben Stokes at Bristol Crown Court in August 2018 – still get attention; but the vast majority of people passing through Magistrates’ Courts do so anonymously. As a result, the public has little idea how, or indeed if, justice is being served fairly and effectively in their local area.

In January 2018, the Society of Editors convened a seminar to consider the problem and launched a working group to consider solutions (see here). Meanwhile Her Majesty’s Courts and Tribunals Service has been making efforts to make courts more ‘open’ to the media. At the aforementioned seminar, a number of media executives said that if they had more resources, they would employ the journalists to do this vital job. They directed their anger at organisations such as Facebook and Google, who they accuse of profiting from their labour without putting any money back into the industry. John Whittingdale MP, the former chair of the House of Commons’ Culture Select Committee, has said this issue needs addressing. The National Union of Journalists has also highlighted the lack of court reporting. The consensus therefore appears to be that more coverage of court proceedings is ‘a good thing’.

Yet, for an issue which lawyers, journalists and politicians all agree on, there is surprisingly little analysis of court reporting, and quite a lot of received opinion. Dr Judith Townend (University of Sussex) has written extensively on the principle of open justice and its importance. In 2014, Professor Leslie Moran (Birkbeck University) examined the level of court reporting in the local and national press for one day. He found that a few stories dominated most media reports, rather than providing a representation of the range of cases. In 2016, the Justice Gap’s Brian Thornton (University of Winchester) repeated the exercise, identifying a decline in coverage (see here). This was, he suggested, probably due to the fact that half of local newspapers did not have a court reporter. The limited number of studies so far have looked at the presence and volume of court reporting. This study wanted to identify what was being missed by this lack of coverage. In short: if the objective is to send more reporters into court, what might they find?

The small-scale pilot study in January 2018 saw the research team supervise student journalists, who observed cases in Bristol Magistrates’ Court for a week, recording every case they encountered. They utilised a coding sheet designed to record key details; these were structure so as to include not only basic detail about offence with which defendants were charged, but also other potentially relevant details and factors such as mental health, drugs, and housing. Crucially, the observers gave each case a ‘newsworthiness’ rating. Using criteria developed by Galtung and Ruge, and refined by others over the years, the students judged how valuable a local newspaper would view each story. Various factors contributed to this rating such as the seriousness and location of the offence, how easily the case could be understood by a lay audience, or the profile of those involved. These were rated on a Likert Scale of 1-5, ‘one’ being cases of little interest to the potential audience (i.e. the public) and ‘five’ for high interest. They also recorded if any reporters were present during proceedings.

In what staff at the court said was a relatively quiet week, the study recorded 240 cases. On average, six courts were open each day. Of these cases, the number given a score of ‘three’ or more was approximately 50 (roughly 20% of the sample). Stories in this batch included:

  • a man charged with breach of the peace after sparking a terror alert in a local shopping centre;
  • a man who had taken natural remedies for a cold, finding himself over the drink-drive limit
  • Bodycam footage showing a man who failed to produce his driving licence being punched by police officers

What was also clear was the number of stories about the ‘process’ of justice rather than the substance of the case itself. Mental health issues were a common part of cases, as were drug addictions and social security problems. Defendants were not always best served by the use of technology in court and on a number of occasions were unrepresented during their hearing.

Although the research team only encountered a single reporter, the media did report some of the cases. This was, however, done so without the use of ‘inperson’ reporting; instead, media outlets re-published information issued to them the Crown Prosecution Service (CPS) on cases which it had successfully prosecuted that week. Whilst this provides a useful indication of the cases heard, there are obvious problems with, in essence, subcontracting reporting on criminal proceedings to the CPS. The ‘list’ of convictions clearly relates to only a fraction of the cases (primarily the most ‘newsworthy’ according to internal CPS standards) and does not account for acquittals or other types of hearing. It is highly unlikely that the list would include any which called CPS competency into question – such those with disclosure failures, missed deadlines, or acquittals. Yet, the team observed cases where the procedural and evidential competence of the CPS (and other parties) was questioned by Magistrates. Ultimately, the nuance of the criminal justice process is lost in this simple ‘guilty list’ approach. A huge slice of public life – impacting on many people’s lives and our perceptions of criminality and justice – is passing by, unreported and uncontested.

We should be concerned by this. The reporting gap cannot be made up by anyone; it requires specialist skills and there are legal penalties should it not be done correctly. A topical example is the case of Stephen Yaxley-Lennon (better known as Tommy Robinson). In May 2018, Yaxley-Lennon was convicted of contempt of court after live broadcasting from Leeds Crown Court during a highly sensitive trial of a number of Muslim men accused of running a child sex ring. His primary justification for doing so was the perception that mainstream media were ignoring cases of Islamic men engaged in serious sexual offences, and that in taking such actions he was providing an informative and valuable public service. Whilst one can fairly dispute the true motivations behind these actions and criticise the methods used (and the potential impact on the fairness of the trial), it is arguable that non-specialist laypersons such as Yaxley-Lennon may be catalysed to undertake, in essence, ‘vigilante’ journalism, should they perceive a deficit in journalistic coverage of criminal justice. Whilst a fairly extreme example, this case – which was appealed by Yaxley-Lennon and is currently in the hands of the Attorney General – does demonstrate how a lack of media reporting of criminal court proceedings leaves a vacuum which will, without appropriate action, inevitably be filled by those unsuited to an important, challenging, and sensitive role.

The experience of the study was, generally, encouraging. The research team found Bristol Magistrates Court staff to be polite, helpful, and professional; one magistrate wanted to hear much more about the research project. Another wanted us to look at particular areas where the justice system wasn’t working. At the same time, we were also aware of an incident last year where a citizen reporter was ordered to stop taking notes in court. Anecdotal evidence from around the country has painted a similarly mixed picture of the attitude towards open justice and external scrutiny. With this mind, it is worth highlighting that the general availability of information on the court’s work for the public is poor. There are no transcripts; full court lists are off limits to non-journalists; and mobile phones are treated as weapons of mass destruction (although the aforementioned Yaxley-Lennon case demonstrates the worst fears of court staff in this regard).

Bristol has a vibrant media community. As well as its established daily newspaper, it is home to regional BBC and ITV offices; it has MadeInTV; a vigorous community newspaper (the Bristol Cable); and radio stations, from independents such Ujima to commercial and BBC outlets. There are bloggers, tweeters, and very popular freesheets in the Voice series. Yet the courts remain largely ignored. Subject to funding, we hope to develop (through research and collaboration) ways of increasing court coverage. We also aim to repeat our study across the country and provide a fuller picture of the state of court reporting in England and Wales, and highlight what is being missed. We think it likely that some places will be well served by agencies, trained independent reporters, or traditional media. We hear of others where a reporter has not been seen for years.

Finally, business as usual isn’t going to do justice to justice stories. Simply having more reporters cover the relatively few high profile or unusual cases from the many that pass through the courts each year is not going to add greater understanding or provide better scrutiny. Some stories are about patterns, better understood through data analysis. Some are about social issues which need following up by specialists. The failure of ‘business as usual’ also extends to the endemic opaqueness of the criminal justice system, and its inherent caution in opening up to the outside world. Without doing so – and without addressing the growing chasm left by traditional media – more Yaxley-Lennons may emerge to take their place. Few would approve of this. There are some 300 Magistrates’ Courts in England and Wales. If Bristol is any guide (and, at present, it is the only yard stick we have), each week 15,000 newsworthy stories are potentially being missed by the media and the public are none the wiser. Justice is not being seen to be done; and we’re all the poorer for it.

 

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