Adam Wagner put up a fascinating post today on the UK Human Rights Blog asking whether journalists should attend court hearings in order to report proceedings accurately. His piece appears to have been inspired on the one hand, by the recent [arguably inaccurate and misleading] coverage of Family Division cases [particularly in the Daily Telegraph] and, on the other hand, by the first live broadcast of proceedings in the Supreme Court.
Adam’s question is not an easy one to answer. Much will depend on the nature of the proceedings being covered, the medium by which they are to be reported and the end-user of the completed report/article. But, we can at least be safe in making the following assumption: the reporter’s/journalist’s presence at the hearing is unlikely to impair the accuracy of his or her reportage. However, the absent reporter (to adopt Adam Wagner’s phraseology) may well be forced to “argue over abstractions”. I think it is fair to say that this assumption underpins the gist of Adam’s post.
There was one particular passage in his Adam Wagner’s which court my eye:
Must a journalist attend a hearing to report properly on it?
On the one hand, it would be onerous for journalists to spend their days at the courts in the hope of picking up something interesting to report on. This may even lead to them sexing up the cases they do happen to see in order to find a story. And hearings are not always open to the public.
On the other, that is what court reporters do and have done since the time of Dickens (in fact, Dickens was a court reporter in his youth). Hearings are sometimes closed to the public but they are mostly open. The family justice system is probably the most closed, in order to protect the anonymity of parties, but it has been opened up in recent years.
I should at this point declare an interest: my day job is law reporting. I do not consider myself to be a journalist per se. Nor do I consider myself to be a legal academic or practitioner. Rather, the my work involves a combination of all three. Any lawyer or law student will be familiar with the Weekly Law Reports (WLR), or Appeal Cases (AC) or the Criminal Appeal Reports (Cr App R). The curious thing is this: most practitioners and students of law are completely in the dark as to how the cases they cite in court or read in the library end up where they do: in a volume of law reports. So I’m going to take Adam’s post as an invitation to shed a bit of light on that and then I’m going to come back to the question he posed in his post: should those reporting cases be getting themselves into court to improve accuracy?
Court reporters v Law reporters
First up – the term ‘court reporter’ is met with a certain degree of derision by people like me (rightly or wrongly). My colleagues and I do not report on what goes on in court – we report on the state of the law as decided by the courts. We are also all, at least in the organisation I work for, legally trained: we must either be a barrister or a solicitor.
Covering the courts
The leading law report publishers (of which there are relatively few) all follow, to a greater or lesser extent, a similar pattern. The first job is to get into court and listen to cases. The ICLR (the organisation I work for) has dedicated reporters in all three divisions of the High Court (Queen’s Bench, Family and Chancery), both divisions of the Court of Appeal, and the Supreme Court. We also have dedicated coverage of the EAT and the ECJ.
My specialty is the Administrative Court of the Queen’s Bench Division. I only cover those cases in the High Court involving issues of public law. Once in court my job is to read the papers, listen to the argument and get as detailed a note of it as possible, including any authorities or legislation cited. This is important because I may be called on to report both the judgment in the case and the oral arguments advanced before the court (you may have noticed if you’ve read an AC, QB, Fam or Ch report that counsel’s arguments are reported alongside the judgment).
Then comes judgment – the important bit for obvious reasons. The High Court has a tendency to deliver judgment ex tempore at the conclusion of argument (ie a read out judgment). Pens at the ready because I need to get as much of the judgment down on paper as I can and as accurately as I can. If I’m lucky (and, invariably where the case is a bit more complex) judgment will be reserved and handed down in paper form (ie what you end up seeing on BAILLI).
It’s worth pointing out that law reporters, unlike journalists, are not necessarily looking for judgments to reports. The idea is that we collect those judgments that matter, which leads me on to the issue of reportability.
Take a look on BAILLI a see how many judgments there are from the Administrative Court of the Queen’s Bench Division alone. Then consider how many have been given in the Court of Appeal, the Supreme Court and the other two divisions of the High Court (and these are only the judgments that have been handed down – don’t forget about those ex tempore judgments). There would be little point in trying to report them all. So, a decision needs to be made as to a judgment’s reportability. Here’s the criteria we apply at the ICLR which was laid down by a chap called Nathaniel Lindley when the Council was set up in 1865:
With respect to subjects reported, care should be taken to exclude:
(1) Those cases which pass without discussion or consideration, and which are valueless as precedents.
(2) Those cases which are substantially repetitions of what is reported already.
On the other hand, care should be taken to include:
(1) All cases which introduce, or appear to introduce, a new principle or a new rule.
(2) All cases which materially modify an existing principle or rule.
(3) All cases which settle, or materially tend to settle, a question upon which the law is doubtful.
(4) All cases which for any reason are peculiarly instructive.
So, an assessment needs to be made as to whether the judgment in question fulfils the criteria for reportability. This task involves close analysis of the text of the judgment and the existing body of reported law bearing on the subject matter of the case in hand. The question is, “does this case set a new precedent”. If it doesn’t it is not reported. If it does then we move on to the next step.
Checking the judgment
Every word, letter, quotation, case reference and statutory provision is checked and double checked and then checked again.. Inaccuracies or inconsistencies in the judgment are, where possible, corrected. If we are unsure as to whether a correction is required, we ask the judge who delivered the judgment in question. Not only is a law report a tool to be deployed in court, it is a material for study by students and a historical record of what the law is at a given moment in time – accuracy is essential. The text of the judgment is then ‘styled’ by the reporter to ensure it’s as readable as possible.
Drafting the catchwords and the headnote
Law reports, in contrast to transcripts (such as those on BAILLI), have the added benefit of a headnote and catchwords. The catchwords are designed to summarise at a glass the issues in the case. This is the reporter’s way of trying to help the reader work out whether this is a case the reader needs to examine further. Then you’ve got the headnote. The purpose of the headnote is to reduce the judgment down to the ratio of the decision and only those facts necessary to support it. Names and dates (unless relevant to the issues in the case) are stripped out. So is the reasoning. The point is to distil for the reader the proposition of law contained in the decision and the crucial facts on which that proposition is based. That short block of text you see at the head of the next Weekly Law Report or Appeal Case you read probably took a week or so to perfect, maybe longer if there was more than one judgment or the decision was particularly long. The idea is to strike a balance between giving the reader too much and giving them too little. Precision and concision is essential.
So, should those covering the courts (be they journalists or law reporters) attend court to listen to the hearings?
Well, yeah. For the following reasons:
(1) It’s the only way of hearing the argument the court hears. True, you might be able to get your hands on the skeleton arguments – but these often reflect the arguments counsel would like to have made rather than the arguments he or she actually did make to the court. The argument can be just as important as the judgment itself because it supplements and expands the reasoning adopted by the court in deciding a case in the way it has.
(2) There is that plenty reporters might miss. Not all judgments are handed down. Those judgments that are read out into the record may never make it onto BAILLI unless they are picked up by a law reporter who orders the transcript (which results in the transcript appearing on BAILLI) or by a journalist reporting it in the conventional press.
(3) Context and contact. Being in court and listening to proceedings allows the law reporter or the journalist to develop a ‘feel’ for the issues and the way they are being dealt with. If the writer is any good, that immediacy should filter through into the finished piece. Far more valuable than a dry recital of what anyone could read for themselves from the transcript.
(4) Speed. Journalists, more so than law reporters, are itching to get their copy to press as quickly as possible. Presence at the hearing (for an oral judgment) or even at hand down gives those present an edge over those who are not. It may take a few hours for handed down judgments to appear on BAILLI. The reporter who get himself or herself into court to pick the judgment up at 10:30 am will be well ahead of the rest, at least where the detail of the decision is concerned. And in law, the devil is most certainly in the detail.
The argument for presence is court is, in my view, totally overwhelming. I’m not saying that it is essential to decent reporting, but those serious about providing serious coverage of the courts and what happens in them are best off making the effort in my humble view.