The Open Justice conference, organised by NewsBrands Ireland to highlight the difficulties often faced by journalists in reporting legal proceedings, heard that a media relations strategy now forms part of litigants’ support armoury, particularly in cases involving big business.
Dearbhail McDonald, group business editor at Independent News and Media, said that the PR industry is now supplying information to which the courts do not give access.
She warned that PR supplies information on terms that are not neutral and are more likely to favour their clients or to be injurious to their opponents.
The Open Justice conference heard that reporters encounter “needless restrictions” when covering the courts, which McDonald described as an affront to the public good.
The conference heard that public confidence in the legal system is undermined by unnecessary levels of secrecy and the failure to administer justice in an open and transparent manner.
In a digital era of radical accountability and transparency, the challenge for law-makers is to determine how much openness should be allowed in courts.
In most Irish courts, the Open Justice conference argued there was no defined protocol allowing access to written submissions, even when these were complex.
Access to material evidence, such as CCTV or recordings of garda interviews, is also restricted.
However, Courts Service spokesman Gerry Curran strongly rebutted the claim of lack of transparency, and said that the conference was calling for a protocol that has been in place in Ireland for the past 15 years. Curran also revealed that he is now in talks with RTÉ about the televising of Supreme Court proceedings.
“In criminal cases, every detail journalists need when someone appears in court is made available by the Courts Service to the national media – by email or over the phone. I deal with over 50 calls a day from the media. Of our 48 court officers around the country, 46 of them routinely give out this information.
“Fifteen years ago, we set up a protocol as to how, when and where we might give out the information that reporters need to cover criminal cases. That has been done for the last 15 years on a daily basis.
"Working journalists get emails from me every day with charges, addresses, and ages. We don’t put them online because the data protection commissioner warned us officially – twice – that we couldn’t.”
“I’m not saying there aren’t daily glitches. We are dealing with a live situation of 150 courts every day. In Dublin alone, you’re dealing with maybe 2,300 criminal matters every day. But routinely, that information is provided by the Courts Service, and has been for years.”
Responding to a question from press ombudsman Peter Feeney as to how the courts actually define a ‘journalist’, Curran replied: “We were the first jurisdiction in the world to define a bona fide journalist on the basis that they produce a national press card, are employed by a newspaper or website that’s aligned to the Press Council of Ireland, or are engaged by a broadcaster which has a licence to broadcast,” he said.
Curran has delivered full-day training to journalists on contempt-of-court restrictions and said that the Courts Service is “delighted” with how responsibly the media has covered the family law courts.
Every written or reserved judgment is also published immediately on the Courts Service website, he pointed out.
Denial of access
The conference heard from Dearbhail McDonald that Ireland is unique in common law systems in its failure to provide access to documents and other filings opened and relied upon in court. This is despite a September 2002 judgment by then High Court President Mr Justice Finnegan, in which he held that papers read by him in private should be treated as read in open court and made available to the press.
“Mindful that winning or losing the battle in the court of public opinion is as important as what happens inside courtrooms, the PR industry, which supports big business and other parties, has stepped in, sometimes dangerously so, into that narrative breach,” she argued.
“This creates layers of privileged access and uneven publicity … where some journalists get filings of court documents and others do not.
“Media relations strategies now form part and parcel of litigants’ support armoury. Communications strategies are key weapons in that arsenal, especially in high-profile litigation,” she continued.
“This phenomenon of seeking to influence and control the narrative is now standard in the commercial law sphere, and is taking a strong foothold in criminal law matters, too, where it is not unusual before a criminal trial to be approached by someone who is ‘representing’ the family and or victims. That is creating its own difficulties around a hierarchy of victimhood, she said.
“PR companies specialise in what is known as ‘earned media’, ally development, strategic advice and contact building that manifest themselves – like manna from Heaven – into the hands of people like me.
“And it’s all terribly distasteful, but the PR industry often gives us what the Constitution and courts say we are entitled to, but do not give access to.”
Seth Barrett Tillman of Maynooth Law School pointed out there were lots of groups in Ireland, and not just the media, who would benefit from more open access to court documents.
ITN lawyer John Battle told the conference that radical changes in court protocols in Britain have brought about a dramatic increase in the amount of legal reporting being done.
This change in protocol in England and Wales is due to a document drawn up between prosecution authorities, police and the media ten years ago. Its underlying principle is that any material shown in court can be released to the media, including police videos of the scene or evidence, interview transcripts, or CCTV footage of the defendant. Crime victims are consulted beforehand, where this is appropriate.
And in England and Wales reporters are now allowed to tweet from courtrooms without seeking a judge’s permission following a practice direction from the Lord Chief Justice in 2011.
Obviously, all court reporting laws, such as that of contempt, remain in place, but, in Britain, information is handed to the media at the same time as it is shown to juries. And these changes mean that the media is better equipped to do its job, Battle said.
Britain’s Supreme Court sittings are live-streamed on its website, while proceedings in the British Court of Appeal are also filmed.
The fundamental principle is that justice must be seen to be done, as well as being done, Battle told the conference.
The public now has more information about its legal system and is, therefore, better engaged with it. As a result, Battle said, those involved with the system, such as lawyers and prosecution authorities, find a greater public understanding of what they do.
The protocol has radically shaken up courts’ coverage, with much less reliance on hackneyed stock footage, he said.
Battle pointed out that adopting modern communication methods was vital if justice was not to become a sleepy badly-understood backwater.