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What took place in a London magistrates' court dealing with a routine guilty plea on Tuesday 12 May 2015? That was the central question addressed by Mr Justice Griffiths in a High Court judgment this week. As frequently happens these days, he was presented with two competing 'truths'. In a ruling that will be widely welcomed by journalists, he chose the one backed up by the contemporaneous shorthand note of a skilled and experienced court reporter.
The judge was dealing with the type of dispute that will be familiar to anyone who publishes details of court cases. A defendant who had pleaded guilty on that day to nine counts of fraud complained about a report, and accompanying photograph, appearing on a website called Square Mile News. The site, operated by a freelance journalist, Tony Palmer, is essentially a shop window of court reports that Palmer has so far failed to sell to the national media. (Incidentally, this makes it a valuable resource: if open justice is to mean anything, it must apply to unexciting cases as much as to headline-grabbers.)
The claimant, identified as 'Ms C', lodged a list of complaints: misuse of private information, harassment, breach of provisions of the Data Protection Act 1998 and the General Data Protection Regulation. She also claimed a 'right to be forgotten', following September 2017 when her convictions became spent under the Rehabilitation of Offenders Act. Meanwhile, she claimed, her article 8 privacy rights outweighed Palmer's rights either by way of the journalistic exemption in data protection laws or his article 10 right to free speech.
Palmer, after agreeing voluntarily to remove a reference to mental health treatment which had emerged in the magistrates' court proceedings, stood firm.
Both parties appeared in person at the High Court hearing last week. In his ruling, Griffiths said he found Palmer the more plausible witness. His case was supported by documents 'which appeared to me to be genuine', including a contemporaneous note in Teeline shorthand (incidentally a skill required of Gazette reporters). 'The claimant’s case was largely unsupported by documents, not least because she claimed to have destroyed some of those which she would have relied on, such as emails, and a press release, because she found them distressing,' the judge said.
And while the defendant 'gave his evidence straightforwardly and convincingly', the claimant’s evidence 'often strayed from what was relevant and, when she did give direct answers to questions, which was not always, they tended to be speculative and did not always convince'.
Central to her claim was that Palmer had not been in court that day, but had cobbled his report together from other sources. However Palmer's evidence on this point was 'compelling'. His Teeline notes, the judge observed, 'sounded exactly as one would expect a court hearing to go', from opening submissions to the sentencing remarks of the district judge.
By contrast, Ms C took no notes of the hearing. Rather, she has 'perpetrated a false narrative both of what happened at the hearing and of the underlying offences'.
Comprehensively throwing out the claim, the judge ruled that the information published 'was not private information and Ms C could have no reasonable expectation of privacy'. Likewise, there was no harassment in this case. On the 'right to be forgotten' claim, the judge noted that the post had been unpublished in 2020, though he accepted that photographs no longer under Palmer's control might have been copied elsewhere on the web. Importantly for journalists, he found that Palmer's need to retain records on the case was 'necessary in relation to the purposes for which they were made, namely, in order to defend himself from any legal claims and in order to be able to demonstrate, whenever necessary, that his blog post was a fair and accurate account of a hearing which he attended and reported upon as a professional journalist'.
'In view of Ms C’s attack on his integrity as a journalist and as a person,' he added 'it seems unlikely that he ought to be compelled to dispose of his records for the foreseeable future.' It was certainly not right that he should have done so in response to C's letter making 'the very allegations which his records demonstrated to be unfounded'.
Overall, the judge observed: 'Court reporting is in the public interest. Court hearings are public hearings for a reason. It is through public hearings and free (accurate) reporting of those hearings that all those involved, including those found guilty of crimes, are held to account by the public which has an interest and a stake in the effective functioning of the justice system.'
So far so good, at least as far as journalists are concerned. But the case calls attention to another anomaly which continues to bewilder newcomers to the justice system in England and Wales: how could there be any uncertainty about what transpired in a routine court hearing seven years ago? Aren't these things on record? The answer of course, is no. But it is surely time for audio recordings of all proceedings in open court to be systematically archived and perhaps automatically transcribed.
Anonymised data from these records could be available for research and management purposes and the full archives opened after, say, 50 years, unless required earlier by judicial order.
A final note. The hearing date was 5 December and the 86-paragraph judgment appeared, in beautifully accessible language, two days later. Should Mr Justice Griffiths ever tire of the bench, he will surely be able to earn a crust as a journalist.
