Consultation on Note-Taking and Live Text-Based Communications in Court in Northern Ireland
A CONSULTATION ON
NOTE-TAKING AND THE
USE OF LIVE TEXTBASED
COMMUNICATIONS IN
COURT IN NORTHERN
IRELAND
Lord Chief Justice’s Office
1 December 2014
Annex A
Consultation on Note-Taking and Live Text-Based Communications in Court in Northern Ireland
A CONSULTATION ON NOTE-TAKING IN COURT IN NORTHERN IRELAND
In any society which embraces the rule of law, it is an essential requirement that
justice is administered in public and subject to public scrutiny. There is an immense
public interest in being able to know the details of what takes place in the courts.
Traditionally the courts in this jurisdiction have taken a cautious approach to
matters such as the permitting of note taking by members of the public in court or
use of electronic devices to take notes or send out live-text based communications.
The advances in technology and the interest in the work of the courts has led the
Lord Chief Justice to review how the courts should take account of these
developments in a way which ensures open justice but also protects the right to a
fair trial and the right to privacy. This consultation invites responses on:

The need for a practice direction clarifying the approach to note-taking in the
courts, including the use of electronic devices to take notes; and

Whether there is a need for live text-based communications to be used from
the courtroom.
General Principles
The judge has an overriding responsibility to ensure that proceedings are conducted
consistently with the proper administration of justice, and to avoid any improper
interference with its processes.
A fundamental aspect of the proper administration of justice is the principle of open
justice. Fair and accurate reporting of court proceedings forms part of that principle.
The principle is however subject to certain statutory and discretionary exceptions.
Courts may hear trials in private in exceptional circumstances where it is necessary
to prevent the administration of justice from being frustrated or rendered
impractical. As a matter of practice most family proceedings are heard in private.
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Consultation on Note-Taking and Live Text-Based Communications in Court in Northern Ireland
Statute law prohibits the taking of photographs in court and the making of sound
recordings of court proceedings.
The statutory prohibition on photography in
court, by any means, is absolute. There is no judicial discretion to suspend or
dispense with it. Any equipment which has photographic capability must have that
function de-activated. Sound recordings are also prohibited unless, in the exercise of
its discretion, the court permits such equipment to be used.
The Contempt of Court Act 1981 creates a strict liability offence for the publication of
material which creates a substantial risk that the course of justice in the relevant
proceedings would be seriously impeded. Court proceedings may be subject to
automatic or discretionary reporting restrictions.
Legislation has been enacted
which prohibits the identification of any victim of a sexual offence, or a child
involved in Youth Court proceedings (although the Court may lift the prohibition in
specified circumstances). Courts also have power to make discretionary reporting
restrictions, for example to postpone reporting of a case to avoid a risk of prejudice
to a forthcoming trial or to protect witnesses.
Further guidance on Reporting Restrictions in the Criminal Courts in Northern
Ireland
can
be
found
at
www.jsbni.com/Publications/reporting-
restrictions/Pages/default.aspx.
Risk
The circumstances under which notes may be taken or live, text-based
communications (“LTBC”) are permitted must be tailored to mitigate the potential
risks which may arise. Risks will arise in proceedings which are subject to reporting
restrictions. Other risks include the potential for disruption to proceedings which
would arise from the use of electronic devices in the courtroom, for example
interference with the court’s public address or sound recording system or the
increased likelihood of mobile phones ringing in court.
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Consultation on Note-Taking and Live Text-Based Communications in Court in Northern Ireland
There are, however, more serious risks to the fairness of court proceedings.
The use
of LTBC from court may increase the risk to jury trials as jurors, accidentally or
otherwise, may encounter prejudicial or inaccurate material online or in their social
media account (even though they are warned at the start of a trial that they should
not research the case on the internet). The risk is greater with LTBC such as Twitter
as the remarks may be less measured than journalistic articles and are presented in a
manner which invites commentary and opinion from other users. Jurors may be
tempted to engage in Twitter discussions on the topic, perhaps by commenting on
messages posted from or about their trial.
Another potential risk relates to the coaching or briefing of witnesses in civil and
criminal proceedings. A witness may use a friend’s notes or LTBC from court to find
out what has been said in court before they give evidence themselves.
A person
giving evidence may be concerned to see someone sitting in the public gallery taking
notes. This may put the witness under pressure or may distract them. Care needs to
be taken to avoid adding to their stress as this could adversely affect their ability to
give their best evidence.
The real-time and instant nature of platforms such as Twitter may increase the
magnitude of the harm that could be caused by misreporting proceedings. The
publication is instant, perhaps to a number of followers, and it is very difficult to
take down communications once posted on the internet as they may already have
been circulated or retained on other sites.
The consequences of the risks outlined above may be very serious. Trials may have
to be stopped and convictions may be unsafe if it emerges that witnesses or members
of a jury were exposed to prejudicial material.
Sensitive material very often emerges in the course of a trial.
Court Act 1981 has already been mentioned.
The Contempt of
The proceedings may be subject to an
automatic or discretionary reporting restriction. Even though a note-taker may not
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Consultation on Note-Taking and Live Text-Based Communications in Court in Northern Ireland
intend to publish their notes, he or she may put some of the material on a social
media page and therefore breach the restriction.
NOTE TAKING IN COURT
There is no statutory prohibition on the public taking notes in court.
In this
jurisdiction, the practice had developed that those seeking to take notes in court
(other than journalists to whom no restriction applies) must seek the approval of the
judge in advance. This may have developed as a response to risks to the defendant,
witnesses, parties and their representatives or it may have been a precautionary
measure to prevent notes being taken for a publication which could be in contempt
of court. There is no such restriction placed on note taking in courts in England and
Wales, Scotland or the Republic of Ireland.
The Lord Chief Justice considers that the decision of whether there should be any
restriction on the taking of notes in court is a judicial decision and a matter to be
determined by each individual judge. He has advised the Judiciary that when a
member of the public asks for permission to take notes the strong presumption
should be in favour of the request unless there is some compelling legal reason to
derogate from this aspect of open justice and deny permission. A judge should
reach his determination on a case by case basis but he or she may adopt a practice of
requiring permission to take notes to be obtained if he or she considers it
appropriate.
When considering whether to restrict the taking of notes the paramount question for
a judge will be whether the taking of notes could interfere with the proper
administration of justice.
The most obvious purpose of permitting note taking
would be to enable an individual with an interest in a case (such as a relative, a
student or a representative of an organisation with an interest in justice matters) to
produce a fair and accurate report of the proceedings. While it is unlikely that the
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Consultation on Note-Taking and Live Text-Based Communications in Court in Northern Ireland
notes taken in court will be published, this must be recognised as a potential risk.
The dangers to the administration of justice have been outlined earlier in this paper.
It is essential that persons taking notes in court are aware of any prohibition on
publication. The media have access to the Northern Ireland Courts and Tribunals
Service (NICTS) Media Court Lists Online which will alert them if there is a
reporting restriction in an individual case.
Members of the public may not
necessarily be aware of the existence of a restriction in a particular case and this can
present a risk to the administration of justice and a person’s right to privacy.
The Lord Chief Justice is committed to the principal of open justice. He is aware
however that there may be a lack of awareness about the approach that the courts in
this jurisdiction take to note taking in court.
Q.1
Do you consider that a Practice Direction would assist understanding of the
judicial approach to note taking in court in Northern Ireland?
Q.2
Do you consider that note takers should be restricted to taking notes on
paper or should they be permitted to take notes on electronic devices such as
tablets or laptops?
It is important that the public know what approach has been adopted by a judge
before they enter his or her court. There are several ways in which this can be
communicated:

Notices could be placed on the doors of courtrooms to indicate that the judge
sitting in that court does not permit note-taking without permission. The
notice could advise anyone wishing to take notes to indicate this to the court
clerk. The clerk would inform the judge and he or she could indicate if this
was a case in which he or she felt that note taking would present a significant
risk.
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Consultation on Note-Taking and Live Text-Based Communications in Court in Northern Ireland
Q.3
Do you consider this is the most appropriate way in which to let the public
know what approach is being taken by the judge in a particular court? Are there
any other ways that you feel would better achieve this?
In cases where there are automatic or discretionary reporting restrictions, it is very
important that a person wishing to take notes is aware of any prohibition. The judge
or court clerk could state this at the start of the proceedings, but this will not be
evident to a person who enters the court during the proceedings. Another option is
to put a notice on the door of the court. This places the onus on the judge or court
staff. You may, however, consider that the onus should be on the person taking
notes to find out whether there is a restriction on what they can do with their notes.
Q.4
Do you consider the onus should be on the court to make the public aware
that publication of details of a case is prohibited or that the onus should be on the
person taking notes to find this out?
Q.5
If you consider the onus should be on the court, how should this be
effected?
LIVE TEXT-BASED COMMUNICATION FROM COURT
The normal rule is that mobile phones and all internet enabled devices must be
turned off in court.
There is however no statutory prohibition on the use of LTBC
(including Twitter) in open court.
The courts in England & Wales have permitted the use of LTBC from court since
2010.
Practice Guidance issued on 14 December 2011 permits accredited
representatives of the media or legal commentators to use LTBC from court without
having to make an application to do so.
This is on the basis that accredited
journalists have an appreciation of the legal framework surrounding court reporting
and are subject to standards set out by the Press Complaints Commission. The
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Consultation on Note-Taking and Live Text-Based Communications in Court in Northern Ireland
guidance recognises that members of the public may not have the same knowledge.
Where a member of the public, who is in court, therefore wishes to use LTBC during
court proceedings he or she will need to make an application for permission to active
and use, in silent mode, a mobile phone, small laptop or tablet solely for this
purpose. The application may be made formally or informally (by communicating a
request to the judge through court staff). When considering, either generally on its
own motion, or following an application by a member of the public, whether to
permit LTBC, and if so by whom, the paramount question for the judge will whether
the application may interfere with the proper administration of justice. The position
in E&W is that subject to these considerations, “the use of an unobtrusive, hand held,
silent piece of modern equipment for the purposes of simultaneous reporting of
proceedings to the outside world as they unfold in court is generally unlikely to
interfere with the proper administration of justice”.
The guidance states that
permission may be withdrawn at any time.
In Scotland, the Lord President appointed a group to review policy on the use of
LTBC in court. A consultation paper was issued on 25 October 2013 which included
questions on whether there would be merit in the implementation of a register of
approved people who may use LTBC from court, and whether those seeking entry
on that register be required to complete a statement confirming awareness and
understanding of the Contempt of Court Act 1981.
This is in recognition of the
potential risks to the administration of justice outlined above.
The report of the
review group is due to be published shortly.
The UK Supreme Court allows any member of a legal team, the media or member of
the public to use LTBC from court so long as there is no disruption to proceedings.
The policy has three important restrictions: if reporting restrictions are in place; if
the case involves a child, anonymity must be preserved; and to avoid influence on
other proceedings in a lower court, the outcome may be restricted.
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Consultation on Note-Taking and Live Text-Based Communications in Court in Northern Ireland
The use of LTBC has been permitted in a number of other jurisdictions. In New
Zealand, only the media are permitted to send communications from inside the
courtroom. They are required to apply to the court where the trial they wish to
cover is taking place. There is a restriction for the media to comply with a 10 minute
delay in publishing the information (apart from where the case is an appeal, the
information relates to a jury’s verdict or a trial judge’s summing up or sentencing
remarks). In sexual cases, the judge will refuse the application if the complainant
opposes it.
At the outset of considering what the court’s approach to this issue in this
jurisdiction should be, it is necessary to consider whether there is a legitimate
demand for LTBC from court to be permitted.
Q.6
Is there a need for LTBC to be used from the courtroom?
Q.7
If so, under what circumstances should LTBC be permitted from the
courtroom?
Q.8
Aside from the risks outlined in this paper, are there any other risks which
derive from the use of LTBC from court?
Q.9
The paper recognises the different technologies which could be used to
send LTBC (mobile phones, laptops, tablets). Should the courts permit the use of
these technologies?
How should the use of LTBC be reconciled with the
prohibition against the use of mobile telephones in court given the difficulty this
will pose in enforcing this rule?
Q.10 Should the use of LTBC from court be principally for the use of the media?
How should “the media” be defined? Should the media be able to use LTBC
without having to seek the permission of the judge?
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Consultation on Note-Taking and Live Text-Based Communications in Court in Northern Ireland
Q.11 Should persons other than the media be permitted to use LTBC from court?
Should this be with or without an application to the court?
Q.12 Do you consider there would be merit in the implementation of a register
of approved people who may use LTBC from court? Should those seeking entry
on that register be required to sign up to a protocol?
Q.13 Should there be restrictions about what can be sent by LTBC from court?
Q.14 Should judges be able to withdraw permission at any time?
The consultation opens on 1 December 2014 and closes on 20 February 2015.
The
paper is also available on the Northern Ireland Courts and Tribunals Service website
(www.courtsni.gov.uk).
A list of those to whom this paper has been sent directly
is set out at Annex A. If you know of any other group or individual who wishes to
make a response, we would be very pleased to hear from them.
If you need any
help in responding, or would like this consultation paper in another language or
format, please contact the Lord Chief Justice’s Office at the address below. A
summary of responses may be published. While we cannot guarantee confidentiality
for any response you may give, we will be happy to consider any reasons you have
for wishing to seek confidentiality for all or part of your response.
Responses should be submitted to:
Alison Houston
Lord Chief Justice’s Office
Royal Courts of Justice
Chichester Street
BELFAST BT1 3JF
Alison.Houston@courtsni.gov.uk.
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Consultation on Note-Taking and Live Text-Based Communications in Court in Northern Ireland
Further information can be obtained if necessary from Alison Houston (Tel: 028 9072
5921).
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Consultation on Note-Taking and Live Text-Based Communications in Court in Northern Ireland
ANNEX A – LIST OF CONSULTEES
Judiciary
Northern Ireland Editors’ Liaison Group
Department of Justice
Northern Ireland Courts and Tribunal Service
Public Prosecution Service
Police Service of Northern Ireland
Attorney General’s Office
Probation Service
Youth Justice Agency
Northern Ireland Legal Services Commission
Prison Service
Criminal Justice Inspectorate
Legal Profession (Law Society, Bar Council)
Amnesty International
British Irish Rights Watch
Children’s Law Centre
Commissioner for Victims/Survivor
Commissioner for Older People NI
Committee for the Administration of Justice
Equality Commission of NI
Law Centre
NI Commissioner for Children and Young People
NI Council for Ethnic Minorities
NI Council for Voluntary Action
NI Gay Rights Association
NI Human Rights Commission
Ombudsman for NI
NSPCC
Police Ombudsman
Prisoner Ombudsman
Public Interest Legal Services NI
Victim Support
Women’s Aid
Annex A