Law – Nicky Harley

Law Week 6

Challenging Court Orders

  • ALL court orders can be challenged by the media except the orders covering victims of sex offences since they have anonymity for life and the courts have no power to overturn the court order
  • All these orders can be used to ban us from reporting elements of cases but the press has the right to challenge these orders.
  • If you want to challenge an order you have to write a note to the judge and hand it to the clerk or ask the judge to let you verbally argue your case
  • You also have to tell the prosecution (the lawyers/those that want to convict the criminal) and the defence (those defending the defendant) that you want to challenge the order. The court has to tell the media that it wants to put/impose an order and if they haven’t you have to tell the court to give you time to form your argument.

Court Orders

SECTION 4 ORDERS (postpone) = These are made by the court to postpone reporting. They are used to ban us (media/press) from printing one trial when another trial involving the same person is close/about to happen e.g if a defendant has one trial after another then we can’t print the previous one.

SECTION 11 ORDERS (blackmail,Violet) = These orders give anonymity to defendants or victims in cases of blackmail and cases of national security. It bans the name, address and anything about the defendant/victim being published e.g Violet would be given anonymity if she were blackmailed by Doflamingo 

SECTION 39 ORDERS (child) = These orders ban the media from reporting the name, address, school or anything else about the child who appears in court as the defendant, victim or witness e.g If Momonosuke appeared in court as the defendant, victim, or witness the media can’t report anything about him 

ANONYMITY ORDERS = Victims of sex offences have automatic anonymity for life

Challenging Orders

All these orders can be used to ban us from reporting elements of cases but the press has the right to challenge these orders

Sometimes the courts make illegal orders and you have to challenge them to allow you to report a case. These include putting section 39 orders on dead children and adults – you are allowed to name the identity if the person is dead

In 2000 in the High Court Lord Bingham said there was nothing to stop magistrates from hearing something (an opinion or whatever they want to say) from someone from the press, and a reporter could ‘save the court from falling into error.’

In the Court of Appeal in 2011, Lord Neuberger said: “Court hearings should take place in public and should be freely reported unless justice cannot be done on that basis in the particular case and in that event, the court should ensure that the restrictions on access and reporting are the minimum necessary to enable justice to be done in that case.”

Even if a reporting restriction is invalid, it must be obeyed unless the court amends or lift them.

Section Four Orders

These are made by the court to postpone reporting. They are used to ban us (media/press) from printing one trial when another trial involving the same person is close/about to happen e.g if a defendant has one trial after another then we can’t print the previous one.

The media can challenge these orders but only if it’s in the public interest

You can argue the gap between the present case and the next is long enough to report the present case, also it could result in more witnesses or victims coming forward in a case.

Section 11 Orders

These orders give anonymity to defendants or victims in cases of blackmail and cases of national security. It bans the name, address and anything about the defendant/victim being published.

A section 11 order can’t be made if the name or the matter has already been mentioned in public proceedings (proceeding is the process of appearing before a court of law so a decision can be made about an argument or claim : a legal action)

You can argue it’s in the public interest to name the defendant  e.g if the defendant is a rapist, it’s in the public interest so that people know the person and stay clear of them.

The Judicial College guidance says that banning the press from publishing the defendants address can wrongly identify someone that’s not connected with the case  e.g the rapist might be Elisgyba yescroluffy who lives on Scale Lane, but there might be another Elisgyba yescroluffy who lives on Newland Ave who has nothing to do with the rape case. 

In 2000 the Grimsby Telegraph published a story on Gary Allen who was charged with murdering a Hull prostitute saying he lived in their patch despite his address being witheld. They were able to do this because the Act states the order only bans publication of things in that are related to or have a connection with the proceedings.

Courts try and use the Section 11 order to protect defendants children but this isn’t allowed.

Section 39 Orders

These orders ban the media from reporting the name, address, school or anything else about the child who appears in court as the defendant, victim or witness.

The order can only be used on a defendant aged under 18. Once the defendant is 18+ the order expires.

We can argue a defendant who is 17 is almost 18 and should be named

If they are given an ASBO (Anti-social behaviour order –  a person who shows anti-social behaviour e.g drunkenness and threatening behaviour) we can argue that they should be named in order for the ASBO to work.

If they have committed a violent offence like a robbery or murder you can argue it’s in the public interest so the defendant should be named

You can argue that in the case of a teacher abusing pupils the order could be changed to name a large school so long as the victims aren’t identified.

In cases of child neglect a section 39 order bans you from naming the parents – you can ask the judge to vary it to allow you to name the parents as long as the names of the children aren’t published.

The Judicial College says: Age isn’t enough to put a section 39 order because a very young child can’t be harmed by publicity that they don’t know (a 6 month old child won’t be aware of anything). This involved babies and toddlers under school age

The orders can’t be used on dead children or children who aren’t part of proceedings.

Challenging Orders

If a child is very young you can argue that a Section 39 order should be lifted because the child is “too young to be affected by publicity”. This helps us in child abuse to be able to name parents.

In cases like robbery and rape, ALWAYS argue and say the young defendant should be named because it’s in public interest.

Check if there are any official investigations going on in a case: this will help lift the orders on the grounds it’s in the public interest  e.g if the council is investigating a case where a teacher had an affair with a student or a headteacher has been sacked as a result.

If this doesn’t work, you can ask the judge to consider varying an order so you can name a school or the relationship between the defendant and victim.

You can argue the school is big so the child won’t be identified, since it’s a school with many students. In child cruelty cases it means you can identify a parent as being responsible for hurting a child

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Burglary Report

19 year old Joshua Taylor has been sentenced to nine months after he plead guilty to a burglary in a family’s house.

The burglary took place at Spring Gardens on November 28 2016, where Joshua was found at the home of Pauline and Keith Clark, who at the time were both asleep with their two daughters.

Officers went to Redbourne Street in Hull on the same day to arrest another man, Nicklin, for different matters but they found Joshua at the address. However, Nicklin and his co-accused Callum Hilton were free to go since there was no evidence to prove they had links to the stolen items.

The judge, Mark Bury, thought the other two men were let off to easily, as he said:”It was a some what generous decision by the CPS to not charge then do you not think?”

According to the prosecutor Suzanne Moss, “Taylor’s fingerprints were found on the tablet. He was interviewed and said an unnamed person had offered to sell him that device.

“In a victim impact statement, Mrs Clark said she feels upset and frightened by the fact someone has been in their house while the family were in bed at the time. She says she feel worried and paranoid.”

Other stolen items include two watches, a wallet, cash and an iPod and a phone and car keys.

Taylor had nine previous convictions for 16 offences, three of which were for dishonesty. He was also on a community order for a crime that took place 10 days before the burglary.

Prior to the burglary, Taylor was found in a car in possession of a meat cleaver and kitchen knives close to a burglary in Bridlington.

According to the Defence Barrister Stephen Robinson, Taylor “intends to make the most of his time in custody and embark on a training course to avoid a further bleak future.

Regarding the two men Callum and Nicklin, judge Mark Bury was shocked that they were let off, saying:  All three of you were charged with burglary, for some reason that totally escapes me the other two accused were let off.”

Mr Bury also warned Taylor what would happen if he wasn’t careful: “What is going to happen if you are not very careful you are going to spend a lot of time in HM prison.”

Taylor has been sentenced to nine months, eight of which he will spend in a young offenders institute.

 

 

 

Law Week Five

CONTEMPT OF COURT = When a person acts in a way that is disobedient, defiant or disrespectful towards the authority, justice and or court e.g Luffy shooting down the WG flag: he is very disrespectful, defiant and disobedient.

  • Examples Of When You Could Be In Contempt

  1. If you breach a court order e.g a section 39 order on a child 
  2. If a publication creates a substantial risk of serious prejudice to proceedings and proceedings are active
  3. If you report a person’s previous convictions
  4. If you identify a juror/member of a jury
  5. If you take pictures inside a courtroom or tape-record proceedings
  6. If you pay witnesses for stories who are due to show up in an up and coming trial
  7. Publishing material that can prevent one of the parties (defendant/plantiff) from receiving a fair trial

COMMON LAW CONTEMPT (pending proceedings) =  publishing material which creates a substantial risk of serious prejudice to proceedings which are imminent or pending, with the intention of creating that risk or interfering with the administration of justice. You would breach it by being reckless e.g publishing an interview with a witness during a trial (because proceedings are still pending and if you publish this you could sway a juror)

STRICT LIABILITY CONTEMPT (active proceedings)= publishing material which creates a substantial risk of serious prejudice to active proceedings. The court decides if the publication has created the risk regardless of the writer’s motives. e.g publishing a photo when identification might be an issue. The maximum sentence for this is two years imprisonment.

PROCEEDING = the process of appearing before a court of law so a decision can be made about an argument or claim : a legal action

Before Proceedings Start:

Before a person is arrested, the media can report all the facts of the case, interview victims and say a person’s previous convictions.

The only exception are teachers. Under the Education Act 201, the media can’t report the name of a teacher who has been accused of an offence unless they are charged.

The moment a person has been arrested automatic restrictions are put on the case under the Contempt of Court Act and the media has to be careful what it reports

A person is innocent until proven guilty and the media shouldn’t print anything which prejudices a person’s case and the right to a fair trial.

Proceedings start when:

  1. A person is arrested
  2. A person is charged
  3. A warrant for an arrest has been issued
  4. A summons has been issued (A summons is a form of legal process that forces the defendant to appear before the court on a certain day and to answer the complaint made by the plaintiff (the person that has been defamed) )

You’re safe from contempt if you’re helping the police catch someone e.g a robber on the run. You can publish a picture and details of the crime but if they’re arrested you can’t repeat the details until they are heard in court or at the end of a case to ensure you don’t prejudice a trial.

Contempt of Court ends when:

  1. A person is released without charge
  2. No arrest has been made within a year of a warrant being issued
  3. The case is discontinued
  4. The defendant is acquitted (found not guilty)
  5. The defendant was found unfit to be tried
  6. The court has ordered the charge to lie on file (there’s not enough evidence to pin the defendant down so he’s found not guilty)

SUBSTANTIAL RISK = This allows us to publish facts a while before the trial because the jury is likely to forget what they heard

  • This means as long as there’s a four month gap before a trial you can publish more information e.g a murderer may admit to killing a person but deny murder: You can print this if there’s a long gap before a trial but otherwise you may prejudice the jury
  • Under substantial risk, you can print more information of a case if it’s being held in a different area e.g if a trial is taking place in Nottingham you can print more details in Hull. You can call someone a murderer because it won’t prejudice a jury in a different town.
  • When a person has pleaded guilty or is convicted (found guilty and then later being sentenced), you can safely publish facts about them, even though proceedings are still ongoing, because at that point you can’t convince a judge

Exceptions That Allow You to Safely Breach Contempt

  • Under Section Three of the Contempt of Court Act the media is given protection for breaching the act if they didn’t know proceedings were active and had taken all reasonable actions before going to print.
  • If the police appeal (ask for a judge to reverse the decision they made on your case) for information to catch an offender through the media then you won’t be in contempt. e.g a defendant who’s facing a trial and has gone on the run: in such cases you can print the photo without any problems.

COVERING SEX OFFENCES 

When a person is a victim of a sexual offence e.g rape, sexual assault, they are automatically given life long anonymity (meaning to keep their identities anonymous/unknown) by the court under the Sexual Offences Amendment Act 1992.

Under Section One of the Amendment Act, after an allegation of a sex offence has been made, it’s illegal to publish anything that can lead people to identify the victim of the offence.

You can’t publish (It’s a ban, so the ban includes:)

  • The name
  • The address
  • The school
  • Their workplace
  • Any still or moving pictures of him/her
  • The order (the Sexual Amendments Act) starts from the moment an allegation is made by the victim or anyone else, even if no one is charged, and it’s automatic
  • It remains in place even if the allegation is later withdrawn , or whether the police are told, whether an offender is prosecuted (tried) and whether anyone is convicted
  • The anonymity is for anyone who is the target of an attempt or conspiracy to commit  a sex act
  • It applies (the order/ Amendment) to babies or adults with mental incapacity and anyone who can’t complain for themselves
  • The order applies to crime stories, reports of trials and civil cases

For Example, if a woman who was allegedly raped sues her rapist in a civil court you can’t name/identify her in a story even if she lost her case

For Example 2x, if an employee alleges sexual harassment, they have anonymity

JIGSAW IDENTIFICATION = A journalist might give out little bits of information, which when pieced together, allow someone to be identified. It’s like putting together a jigsaw.

  • Section One of the Act bans anyone publishing anything that can lead to someone identifying the alleged victim.
  • Naming a big school and saying the victim was a student is fine because it’s unlikely that they can be identified, but if you said it was a 14 year old female violinist then that can lead to them being identified
  • Be Careful how other media organisations cover the same story – e.g you say she’s a mum-of-three from East Hull, the Radio says she’s a nurse and the TV says she’s 31 – that becomes a 31 year old mother of three from East Hull – her friends might identify her and you’d all breach the act
  • Agree beforehand – In allegations of abuse in a family, media organisations should agree beforehand to either name the adult defendant (the person that did the abuse) and leave out the relationship to the child or not identify the adult defendant and describe the abuse.
  • The Editors Code of Practice bans identification of a child in sex cases (anyone below 18)

In 2006 the Daily Express was fined £2,700 and ordered to pay £10,000 compensation for breaching the Amendments act after they published photos of a servicewoman who claimed she had been sexually assaulted

In some cases the order can be lifted or changed to allow the media to report the case

  • Clause 11 of the Editors Code of Practice says the press must not identify victims of sexual assault or publish anything that can lead to them being identified unless there’s adequate justification (the victim gives you permission) and they (journalists) are legally free to do so.
  • Clause 7 of the Editors Code of Practice says the press must not, even if they’re legally free to, identify children under 16 who are victims or witnesses in cases involving sex offences.
  • There are only 4 ways you can identify a sex victim

  1. If they die
  2. If they sign a waiver to lift their anonymity
  3. If they lied and made a false allegation
  4. If they are tried for a crime and use the fact that they’re a victim of a sex offence

Journalism Law – COURTS + 10 POINT RULE

Magistrates Court

  • Anything reported in a court is covered by Absolute Privilege so you can’t defame a person  or get sued for writing anything false.
  • Absolute privilege covers all courts, inquests/investigations and the Houses of Parliament.
  • You have absolute privilege for fair, accurate contemporaneous court reports. You can print anything said in court as long as you publish both the prosecution and the defence case and publish it within days of the hearing.
  • You can print that someone has been called a paedophile or a murderer if it is said in court even if later they are found not guilty.
  • Although you can safely report courts you can’t breach court orders and it does not cover things shouted out in the public gallery.
  • The court can place orders on cases to ban the media from reporting details in them, such as names of victims in sex offences, naming children and even naming defendants. If papers break these, they can face fines and imprisonment.
  • A journalist should always ask the court clerk for the name, age and address of a defendant otherwise they could wrongly identify a person with the same name and get sued.

 

10 point rule

When a person appears at court there are 10 things you are allowed to report:

  1. Name of the court and magistrate
  2. Name, address, age and occupation of defendant
  3. Offence charged with
  4. Names of the solicitors
  5. The decision to commit for trial
  6. The court the defendant is committed to and due to appear at next
  7. Date of the next hearing
  8. If they are given bail
  9. If legal aid was given/granted
  10. The decision of the court to lift any restrictions

Covering Court

  • The 10 point rule is to prevent a risk of harm/prejudice to a jury trial
  • You can’t report a person’s previous convictions/crimes/trials
  • You can’t report bail hearing or the reason for bail being refused: you can only say whether or not it was granted
  • Double check the defendants picture before you publish
  • If you print a former address of a defendant you need to state they don’t live there anymore or else you could face being sued by the current tenants
  • If a defendant shouts he is innocent from the dock, you are allowed to report this as a jury would in due course know that the charge has been denied.
  • To be able to write a full story for the paper when there are few facts available, the media usually describes the courtroom scene, such as what the defendant is wearing, how many people are in the public gallery, how long it lasted and what happens next.

Youth Court

  • The courts are for defendants under 18
  • The public aren’t allowed into youth courts but the media are if you can prove you’re a member of the press.
  • Under section 47 of the Children and Young Persons Act, the press must not report the name, address, school or anything else that may identify a person under 18 concerned in trials: this includes defendants, witnesses or victims.
  • You can say a 14 year old boy from East Hull but you can’t say a 14 year old boy from Thorngumbald because he could be recognised.
  • If you breach the order you can be fined £5000.
  • You can get around it by writing a report that does not mention that it was heard in a youth court e.g interview a young person who was stabbed as long as you don’t mention the court
  • If the press argue that it is in the public’s interest, then you can lift the obscurity/namelessness/anonymity.

 

 

 

Journalism Law – WEEK 2

  1. Magistrates Court = Nearly all criminal cases (theft, crime etc) and anyone that has committed these crimes will first go to a Magistrates court.

Magistrate Courts deal with 3 kinds of cases:

  • Summary offences – Small, less serious cases
  • Either-way offences – Magistrates can decide that the crime is quite serious and must be handled at a crown court
  • Indictable-only offences – Crimes like murder, manslaughter and rape (remember, almost all cases start in a Magistrates court). If these cases are handled in a magistrates and not a crown court:

The defendant has to enter a plea. If (s)he pleads guilty, the magistrate can put a 6 month sentence on the criminal or give them a fine of up to £5000

If the defendant is innocent, they are free to go.

2. Youth Court = For youths under 18 that have committed criminal offences e.g if Momonosuke committed a crime he’d be in a youth court since he’s below 18.

3. Civil courts = These deal with personal/business conflicts between 2 people/businesses   e.g if a person had an accident at work they might sue their employer for compensation

4. Family court = These are where family cases are dealt with e.g adoption

5. Coroners Court = These do investigations when a person has died to determine the cause of death e.g the Mentalist

6. Crown Court = This is where the more serious court cases take place and they are dealt with by a judge or a jury.

  • Defendants are represented by Barristers (lawyers that work at higher levels of court)

 

COURT PROTOCOLS

  • No Cameras or weapons can be taken into the court buildings
  • No photos in the court buildings: doing so can result in a 5 year prison sentence
  • You cannot enter the court when the judge is speaking and you must bow your head when you enter the court room
  • No drinking, eating, texting or reading a newspaper
  • Ask for permission before taking notes unless you’re from the press

Anything said in court is covered by the defamation defence Absolute Privilege.  

  • The defence can only be used for a fair, accurate, contemporaneous (something happening at the same time) court report.

 

  • You can print anything said in court as long as you publish both the prosecution and the defence case and publish it within days of the hearing.

 

  • You can print that someone has been called a peadophile, murderer or thief if it is said and court and later found not guilty.

 

 

Journalism Law – WEEK 1: DEFAMATION

WHAT IS DEFAMATION

DEFAMATION = The action of damaging the good reputation of someone     e.g When the Straw hat pirates were accused of shooting iceberg – their reputation was damaged and they were seen as criminals

  • A statement is defamatory if it’s a lie and it damages a person’s reputation
  • In Law, a statement is defamatory if it “tends to” (Key word “Tends to”
  1. Expose a person to hatred, ridicule or contempt (making someone feel worthless). E.G Luffy was exposed to hatred: the whole of Water 7 wanted to kill him
  2. Causes a person to be shunned or avoided  E.G Local citizens were avoiding the strawhats because they didn’t want to be associated with criminals
  3. Lowers a person in the esteem of right thinking members of society 
  4. Disparages (belittles) a person in their business, trade, office or profession  E.G Spandam was undervaluing and ridiculing Robin, calling her useless.

GOLDEN RULE!! – If you think your story will defame someone, check with the publication’s lawyers.

There are 3 things a person must prove for a defamation claim:

  1. It refers to him – show proof that what was said was actually said about you and not someone else
  2. It is defamatory – Prove that it is a lie or that it is damaging your “good reputation”
  3. It has been published to a third person

Papers are at risk of defamation if they don’t publish the age and address of a criminal in case there’s another person with that same name e.g There may be a Peter aged 36 who lives on Scale Lane that has committed a crime, but there may be another Peter aged 21 who lives on Newland Ave that had nothing to do with the crime – that’s why it’s important to publish the ages and addresses

EXAMPLE OF DEFAMATION PAYOUT:

  • In 2002 two nursery nurses in New Castle were paid £200,000 in damages after papers wrongly accused them of sexual abuse.

DEFAMATION DEFENCES: THE 7 DEFENCES  (JFAQAOR)

Journalists have 7 defences against a defamation claim:

1). Justification (truth) – The defendant (the person that defamed someone) has to prove that what they said about the other person (plantiff) is true AND is also for the benefit of the public i.e the public has to benefit in some way from what was said

e.g if a newspaper publishes a report about someone that claims to be a doctor but actually isn’t and there is no proof to show he is a doctor, the newspaper can’t be sued, and it’s also for the benefit of the public because someone could easily die from some fake doctor

2). Fair  Comment – An honest comment/opinion held by the defendant (the person that defamed someone – journalist in this case) BUT, there are 4 requirements that the defendant must meet before (s)he can use this defence:

  • The comments must be factual
  • The comments must be fair and not biased/exaggerated
  • The comments must be true
  • The comments must be of public interest

3). Absolute privilege – You have absolute privilege for fair, accurate, contemporaneous court reports. You can print anything said in court as long as you publish both the prosecution and the defence case and publish it within days of the hearing.

  • The statements of the defendant (the person defaming someone) are protected in every way and (s)he can’t be held responsible even if the statements are wrong and are made out of spite – You can ONLY get Absolute Privilege in certain places like parliament and if the statements are up to date.

4). Qualified privilege (Akainu vs Aokiji) – This allows journalists to publish defamatory statements but ONLY IF the statements are to inform people and are not out of malice/spite e.g if the marines published a report about Akainu vs Aokiji and said Aokiji lost miserably and was the weakest admiral, they would be at risk of defamation because this is out of malice.

If the journalist wants to avoid getting sued, the statements must be:

  • Published ASAP
  • Accurate
  • Fair

5). Accord and satisfaction – This is where you print a defamatory statement and agree to print a correction. It only works if the person accepts they are happy with this

6). Offer of amends – If you printed a defamatory comment you agree to print an apology and pay damages. It can ONLY be used where you printed without malice

7). Reynolds defence – This defence can be used to report a story which is in the public interest, even if it can’t be proved and has a defamatory statement as long as its responsible journalism