Law Reporting in a New Media Age

You can now tweet from inside court, the number of legal bloggers (or blawgers) has risen exponentially and most newspapers publish considerably more content in their online editions than they print. 


Meanwhile, the traditional legal correspondent who was able to provide serious newspaper readers and television viewers with expert commentary has virtually disappeared and the number of dedicated court reporters working full time in the law courts has dwindled to an overworked handful. 


As a result of these developments has there been a decline in standards of legal journalism? Or is the public now better informed -- or at least in a better position to find out what it wants to know about legal issues and make up its own mind?

These were some of the issues put to the panel of bloggers, tweeters and online correspondents by Joshua Rozenberg, chairman of Halsbury's Law Exchange, at a panel discussion hosted in the City of London offices of the law firm Eversheds. 

Joshua himself, though an enthusiastic user of Twitter, a keen blogger and a prolific online commentator, is a long-established legal affairs correspondent and court reporter of the traditional sort. One of the last, in fact. He has broadcast for the BBC for many years, and wrote for the Daily Telegraph before moving to the Guardian and Standpoint magazine. So he is in a good position to observe the changing face of "law reporting" in the loose, generic sense used in the title of the discussion (rather than the specialised sense used to describe what ICLR does best - about which more anon). He has obviously adapted his training and skills to the new media.

It was unlikely the panel were going to say that what they did was either a waste of time or represented a decline in standards of legal journalism. Instead, they were each given an opportunity to say why they thought it was a positive development. The whole event (including my own contribution from the floor) was filmed and is to be uploaded onto YouTube, so you can see and hear it all at leisure. What follows is only a summary.

David Allen Green, a practising solicitor who writes the Jack of Kent blog, said he had begun blogging because he realised people didn't understand the law of libel and he was able to explain it. He blogs because he enjoys it, not for the money. A blogger doesn't have to justify his space to an editor, he can take as much as he needs to explain something clearly to his readers; moreover, he can provide links to his sources.

Andrew Sharpe, another solicitor, formerly of Charles Russell, now head of Commercial PSL for LexisNexis, said blogging enabled him to explain a complex piece of law in good plain English. Twitter was useful in particular to pick up trends for stories. Given the decline in traditional court reporting, particularly at the lower court levels, the only way to hear about cases was often through social media, which made up for the lack of coverage.

Adam Wagner, a barrister of One Crown Office Row, writes for the UK Human Rights blog, emphasised that he wasn't providing legal advice when blogging. It was simply one of the ways in which a barrister could promote himself, like giving talks. Although he had no journalistic training, writing a good article was like writing a well structured legal advice. Everything you said had to be backed up by legal authority.

Katie Dowell, a senior reporter for The Lawyer magazine, a trade paper, said blogging and tweeting enabled writers to keep ahead of rivals in the race to cover important news, and to extend the reach of their readership. There was space for both traditional and new ways of reporting.

Siobhain Butterworth, of The Guardian, said that even as a lawyer she had found she was writing all day in one way or another, and being a journalist was not that different. Lots of stories in the mainstream media were simply amplifying voices in social media, but mainstream media had the resources to cover stories in more depth than bloggers and tweeters.

Joshua observed that when a big story came up, such as the Green Paper on secret courts, it was a traditional newspaper like the Daily Mail which (however improbable its stance) was able to make the running and make the government sit up and take notice. As an expert on human rights law, Adam freely admitted that it had been an eye-opener to see how the pros dealt with the issue.

Joshua widened the discussion to take in television coverage, inviting Simon Bucks of Sky News to comment from the audience. Simon said he fully expected forthcoming legislation to enable the use of cameras in court and that this would aid public understanding of the law.

Joshua then invited me, as a representative of law reporting in the more formal, specialised sense, to explain what ICLR did and stood for. I explained that ICLR had been established in 1865 as a not for profit body to support legal education and the administration of justice by ensuring the reliable publication of important cases. For many years, the only way people could have access to legal decisions was if they had been reported, so ICLR was not just a primary source, it was often the only source.

The major development over the past ten or fifteen years had been the huge increase in the availability of raw law -- unreported judgments and unedited legislation -- and this combined with new media channels meant that the amount of information and comments was huge. But much of it was concerned, as panellists had admitted, with the race to get there first.

What traditional law reporting was about was producing a filtered, processed, revised and approved version of the law: an expert distillation. Where news reporting of cases might constitute the first draft of history, law reporting was a revised draft, written for posterity. That wasn't to say ICLR was not enthusiastically engaging with the new media channels to put its message and content across.

I then posed the question, for the practitioners on the panel, as to how happy they would be to go into court, acting for a client, and base their argument on material derived from blogs and tweets rather than traditional published sources. David answered a different question, saying he would be very comfortable using unreported judgments from BAILII in combination with documents such as skeleton arguments (theoretically public documents, though the practicality of obtaining them at short notice is open to doubt). Adam, however, admitted that he would not as a practitioner want to rely on anything less than the most authoritative sources.

Photo copied (with grateful apologies) from HLE's own report of the event: L to R, Siobhain, Katy, Adam, Joshua, Andrew and David. 


Halsbury's Law Exchange describes itself as a ThinkTank, "shaping our legal future". This strikes me as a tad ambitious. On the evidence of this, its first panel discussion since it was founded in September 2010, it may simply be providing a forum, and perhaps some handy publicity for LexisNexis by whom it is sponsored and supported, and many of whose reporters and editors were in the audience and available for comment in the drinks reception which followed.

Coming as it does in the wake of ICLR Encounters, only modesty forbids me to point out that once again ICLR is leading the way in the "thought leadership" stakes.

It's also worth pointing out that many of the same panellists contributed to a very similar discussion about a year ago, hosted at the Law Society, and blogged by me here. The subject is clearly one that isn't going away. Watch this space.

An unseemly turf war fought in a monstrous labyrinth

After the many children in need cases reported in recent years, including the trilogy of cases in last month’s PTSR, one might have thought that the courts had drawn the legal frontiers sufficiently clearly to eliminate funding disputes between public authorities as to which of them should bear the responsibility for funding accommodation and support costs of children in need.

However, R (VC) v Newcastle City Council [2012] PTSR 546 raises and resolves yet another issue, this time concerning the relationship between section 17 of the Children Act 1989 and section 4 of the Immigration and Asylum Act 1999.

The question for the determination of the Queen’s Bench Divisional Court (Munby LJ and Langstaff J) , sitting in Newcastle-upon-Tyne, was as to “which public authority must take responsibility for providing accommodation and support to children in need within migrant families who are not entitled to support under section 95 of the 1999 Act.”

Was the local authority entitled to terminate its support (here accommodation) provided to families under section 17 of the 1989 Act on the basis that families could access such support through the national government under section 4 of the 1999 Act?

Counsel complained “with every justification” that “the interaction between 'social services legislation' and 'asylum support legislation' has created a monstrous labyrinth.”

After a necessarily lengthy exposition of the relevant statutory provisions, the court referred, inter alia, to the obiter dicta of Tomlinson LJ in R (O) v Barking and Dagenham London Borough Council [2011] PTSR 549, para 40 that the powers under section 4 of the 1999 Act, like section 95, “are residual and cannot be exercised if the asylum seeker … is entitled to accommodation under some other provision”. That case was, of course concerned with a different question: namely, the relationship between a local authority’s duty under section 23C(4)(c) and the power of the Secretary of State under section 95 of the 1999 Act.

The court emphasised that the local authority had been providing section 17 support on the basis that the children in question were in need. It asked whether the mere fact that support under section 4 of the 1999 Act was, or might be, available meant that without further reassessment it was open to the local authority to say that a child who was previously in need was now, ipso facto, no longer in need.

Their Lordships concluded that there were a number of legislative indicators, including the very different statutory purposes of the two statutory schemes, that pointed to the conclusion that, in contrast to section 17, section 4 was a residuary power and that the mere fact that support was or might be available under section 4 did not of itself exonerate a local authority from what would otherwise be its powers and duties under section 17: para 87.

The court observed that, in practical terms, a local authority faced with a child assessed as being in need was very unlikely in the general run of such cases to be able to justify non-intervention by reliance upon section 4: para 92. Equally, a local authority supporting a child who was assessed as being in need was very unlikely in the general run of such cases to be able to justify the discontinuance of such support by reliance on section 4: para 94.

Allowing the claims, the court concluded that the local authority had wholly failed to demonstrate that any support potentially available under section 4 would be adequate to meet the children’s assessed needs: para 95.

The court refrained from determining two further questions which did not directly arise on the facts. They were, at para 71: (i) whether a local authority approached by a migrant family seeking accommodation and support had to provide such support to comply with its obligations under domestic and Human Rights Convention law, and could not avoid the duty by reference to the potential availability of section 4 support; and (ii) whether the Secretary of State was entitled to refuse to provide section 4 support on the basis that the applicant family were not “destitute”, being entitled to support from a local authority under section 17.

It would therefore seem that there will be yet more examples of the “inverted and unseemly turf war between local and national government” , described by Baroness Hale of Richmond in R (M) v Slough Borough Council [2008] 1 WLR 1808, para 28 and referred to by Laws LJ in another case reported in the April issue of PTSR, R (L) v Westminster City Council (Medical Foundation for the Care of Victims of Torture intervening) [2012] PTSR 574.

Isobel Collins,

Editor, PTSR

April 2012

The Public and Third Sector Law Reports, Part 4: providing the best coverage of charity and public law cases.

Publicity and the soul of justice; letting the media spotlight in

In a week that sees another high-profile extradition, this time of Abu Hamza to the USA to face terrorism charges, the question put by Lord Justice Toulson in Regina (Guardian News and Media Ltd) v City of Westminster Magistrates' Court (Article 19 intervening) [2012] EWCA Civ 420; [2012] WLR (D) 110 ("the Guardian ruling") - "Quis custodiet ipsos custodes?" (who will guard the guards themselves?) - highlights not only the availability of document access to non-parties in extradition proceedings but, on a broader interpretation, raises interesting questions of just how the Rule of Law itself is to be policed effectively as the ever growing and high-profile interactions between the media and the courts continue to develop.

As highlighted by the recent ICLR summary, the case involved the Guardian newspaper's appeal against the refusal of its application to obtain documents relating to the extradition proceedings of two British citizens, Geoffrey Testler and Wojciech Chodan. The extradition involved allegations of bribery of Nigerian officials and the documents requested by the Guardian included: affidavits submitted by the both US senior trial attorney responsible for the conduct of the prosecutions and others at the US Department of Justice; files of correspondence between the SFO and US Department of Justice and correspondence between solicitors acting for MW Kellogg, of which Mr Chodan was a former executive, and counsel for Mr Testler. The documents themselves were not read out in open court but were referred to during the course of the hearings.

Allowing the appeal, Toulson LJ recognised the role of the Strasbourg jurisprudence and article 10 of the European Convention on Human Rights ("ECHR") but ultimately made clear that he based his decision on the common law principle of open justice, citing this as the principle at the "heart of our system of justice" and as paramount to allowing the public to understand the justice system. He referred to the persuasive authorities of the other common law countries as a sign that common law was in vigorous health and perhaps also to remind the court of the fundamental rights and principles that Acts such as the ECHR and the Human Rights Act 1998 seek to preserve. His decision, he said, may be deemed to have broken new ground since R v Waterfield [1975] 1 WLR 711 35 years ago, but did so in its application rather than the nature of the principle itself.

Yet, whilst indicating that the default position in such cases should be to allow access to documents when based on the open justice principle, his Lordship was careful to avoid recommending a standard formula to determine any grounds of opposition needed to outweigh the merits of any case for disclosure. Recommending a fact-specific proportionality exercise to be undertaken in each case, he noted that the court's evaluation should be based upon the potential value of the material in advancing the open justice principle whilst at the same time assessing any risk or harm which access to the documents may cause to the legitimate interests of others. The policing of the Rule of Law through open justice therefore clearly requires a carefully balanced approach.

In assessing the merits of the application against the counter arguments, his Lordship also discussed the issue of time and practicality in document access; a tension which has been highlighted in many of the recent extradition cases. The Prime Minister's comments following the Hamza ruling on the length of time of legal processes echo those expressed in the Guardian ruling with concerns that the practicality of adhering to both the timetable imposed by the Extradition Act and at the same time providing large amounts of requested material would lead to inevitable delays and public expense. Toulson LJ however considered this point unimpressive and in particular cited in his judgment the process laid down in Criminal Procedure Rules as providing a sensible application process for document requests. Administrative and procedural concerns in this instance were therefore outweighed by the interests of a just and fair legal system.

It is yet to be seen what impact the Guardian ruling will have upon future disclosure and open justice issues both in extradition proceedings and otherwise and whilst it is the inherent jurisdiction of the court to determine how the principle of open justice is to be applied, the courts, Toulson LJ warned, should exercise caution in making any editorial judgments about the adequacy of material available to the media for journalistic purposes.

The interaction between the media and the legal professions will doubtless continue to make headlines and was notably also explored in the first of the ICLR Encounters debates held last week. Although the methods and suitability of the two professions' abilities to uncover truths and justice were hotly debated, their interaction was nevertheless implicit. Indeed, their relationship is perhaps reiterated most clearly in Toulson LJ's judgment, whereby the serious journalistic purpose of seeking access to documents in order to stimulate informed debate on and about the justice system must be upheld, albeit proportionately, in order to assist the transparency and principles of the legal process.



Guest blog posting by: Eleanor Hutchinson

Trainee Solicitor

Maclay Murray & Spens LLP

11 April 2012

ICLR Encounters: The Truth, The Whole Truth, or a Version of the Truth...

ICLR Encounters - a series of debates about issues affecting the law - kicked off last night with a fascinating encounter between Jon Snow, of Channel 4 News, and Elanor Dymott, law reporter turned novelist, at The Old Court Room in Lincoln's Inn.

The subject of discussion was The Truth,The Whole Truth, or a Version of the Truth...

Introducing this Encounter, Paul Magrath, ICLR's Head of Development and Online Content, failed to stick to the following script:

Those of us who, like Jon Snow, work in journalism have a high regard for the truth. It may not be attainable, but it is something you should always strive for. A journalistic coup is a daring denouement: the truth is revealed, villains unmasked and heroes vindicated.

The same could be said in the law, but perhaps with less conviction. Our system of justice is adversarial, which means that there are always at least two versions of the truth in play, a sort of jousting. Indeed, the earliest trials were trials by combat, not by truth. The truth in those days was assumed to lie with the strongest combatant. Now that our jousting is done in words, the truth is found to lie in the most persuasive combatant’s mouth.

Judges look for a version of the truth in deciding which of the adversaries has won. But any truth found is conditional on the facts and arguments presented to the court in support of the rival arguments.

A law reporter seeks a different kind of truth: not the facts but the law. The law reporter’s truth is a distillation or encapsulation of the law decided by the court. It is a version of the truth that is carried forward, by way of the system of precedent, into other cases, other arguments, other decisions, other reports.

The official Law Reports produced by ICLR carry with them the endorsement of being, in a judicial sense, the authorised version. They carry the weight of their authority, but one hopes they carry this weight, this learning, lightly enough to be portable. The truth should be an anchor, not a millstone.

The novelist’s truth is different again. I will let our resident novelist, Elanor Dymott, explain more about this. What her novel, Every Contact Leaves A Trace, shows is that we don’t always like the truth. If the truth offends, we tell white lies. We speak of the truth as being, in some cases, uncomfortable. There are truths which are said to be unwelcome.

The hero of Elanor’s novel is someone for whom the truth is potentially not just unwelcome or uncomfortable, but positively devastating. It is the story of Alex, a lawyer, whose glamorous wife, Rachel, is murdered and who, in trying to find out who has done this and why, discovers all sorts of things about her past that he never knew or would have wanted to know. It shows how truth is linked to trust, how trust is dependent on truth. And it asks whether love can survive the truth.

Jon began by commenting on a recent news assignment in which he found himself in Tahrir Square, Cairo, unable to speak a word of Arabic, trying to find out the truth about an alleged revolution in Egypt. He confessed that every journalist brings to the story their own prejudices and wondered how the same could not be true of lawyers and judges.

Elanor commented on the difference between working as a solicitor and as a law reporter, capturing the truth of legal argument while attempting (and failing) to filter out the human stories caught up in every court case. She went on to compare that with the very different approach to truth of novel writing.

The event was recorded and will be available soon as a video podcast, in which you will be able to follow the debate as it ranged far and wide and witness the engagement of the audience, many of whom asked questions afterwards.

After the event, copies of Elanor's novel and of Jon Snow's memoir, Shooting History, were available to purchase and for their authors to sign.