The recent case of Ewing v Cardiff and Newport Crown Court [2016] EWHC 183 (Admin) relating to restrictions on members of the public taking notes in criminal hearings in the Crown Court will have application in relation to similar restrictions in police misconduct hearings. The starting position is that note taking will be permitted – and a chair should not require observers to ask for permission before making any.
A judge in a criminal hearing in the Crown Court ordered that no person was permitted to make notes other than with his permission. There were real reasons for this – it was to prevent the making of notes by a person who was deliberately seeking to manipulate the process of the court and who was being difficult and contrary. The judge was concerned that the prejudicial material might be published and that the material might be used improperly in order to have an adverse effect on another court hearing.
On a judicial review, the Administrative Court held that those who attend public court hearings should be free to make notes of what occurs,as a matter of principle of open justice. Note-taking by members of the public was unlikely, without more, to interfere with the administration of justice and no immediate distinction was to be drawn between a member of the public and a journalist.
The paramount question was whether a person’s taking notes would be likely to interfere with the proper administration of justice. If there was, a court or tribunal could impose restrictions – but note the test that the taking of notes would have to be “likely” to interfere with the administration of justice, which comprises the central principle of open justice.
Police misconduct hearings have just started being heard in public. Understandably, those chairing such hearings have been nervous about this and have, sometimes, adopted an overly cautious approach as to what may be heard in public and if people are to be permitted to take notes. A particular problem arises where a panel chair decides that the name of a defendant officer, a complainant or a witness not be said openly in a hearing. If someone mentions the name of such a person by accident, the chair has no power to impose reporting restrictions to prevent its future publication. It has, therefore, been the practice of some panel chairs to restrict the taking of notes of persons’ names. Whilst understandable, it is questionable whether this has any real effect where an observer can leave the room, write the name for future reference or publication and then return to the hearing. If the prohibition has no real effect and/or in any event, it is questionable whether it is justified on the basis that otherwise the taking of notes would be “likely” to interfere with the administration of justice.