For the most sensational cases we still expect a full press gallery, at least for part of a case, but for the vast majority of hearings and trials, whether criminal, family or other, there is no professional narrative available to the public of contemporaneous events unfolding in court. If we have no personal experience of it, our expectation of what happens there depends largely on what is served up in TV dramas, many of them anachronistic.
So the large majority of cases, although conducted in public hearings up and down the land, and although producing outcomes that often dramatically affect the lives of the citizens concerned, operate essentially unseen and unheard by the public. The way in which the outcomes are arrived at is thus something of a mystery for the large majority of the uninitiated public. Worse, outcomes are often supposed to be influenced by factors that are by and large mythical.
Court judgments or sentencing remarks can of course be obtained by journalists who have picked up only fragments of a story. But whether the outcome of a case is fair and just is best measured by absorbing the evidence or submissions on which it is based as well. Sometimes judgments will patiently recount the material considerations, but often they do not. In any event the language of a judgment is unlikely to adopt the style a journalist might use to relate the story. This is no criticism. Let’s hope it will always be the case that the press interest in the story is not the guiding influence of the way a judgment is written.
What is missing is an accessible account by a reporter of what happened at the trial; the allegation, the rebuttal, the dynamic, and the personal consequences for the parties or the witnesses or others affected by what is unfolding in court. Traditionally most courts have a few seats reserved for the press. Nowadays they are almost always empty. The public receive no professional narrative of the way we arrive at justice.
Increasingly and perplexingly, into the vacuum drop one-sided reports via social media, not from professional journalists, but from aggrieved parties who, like single-issue campaigners or nefarious pressure groups with their own agenda, have access to mass communication and so can feed a narrative that often grossly distorts reality. If it were not for this fairly recent phenomenon, the decline in court reporting would perhaps matter less. Why, after all, does the public need to know about what actually happens in court? One answer, I suppose, is that some level of public legal education is desirable, especially when some politicians seem inclined to trample over the hitherto relatively sacrosanct territory of judicial independence.
Visceral attacks via social media and mainstream press on judges and the way we deliver justice are beginning to shake us out of our complacency. For those who habituate the courts, the lack of public understanding of what actually happens and how law and procedure works in practice and the constant distortion of public perception set against our own experience of the reality, is becoming troublesome. That in itself might matter less if ill-informed public outcry ran no risk of a misguided reactive policy initiative by politicians.
But the new pattern is now familiar. The peg upon which the outcry feeds is fed into social media and then the press, who were invariably absent from court, pick up the story. Rarely is a sufficient transcript obtained to provide adequate context, and what is made available is not always published by the judiciary in time to prevent distortion or misreporting. The resulting headlines feed myths and politicians win points by taking up arms to defeat the imagined problem.
There is a small army of admirable bloggers and Tweeters who spend their time correcting misapprehension of what has happened in court as best they can. Many are barristers familiar with court process, so when they see an unlikely headline, they know where to find the judgment, the sentencing remarks, and the law – if such things have been published. They work to put the misperception right. They perform a valuable service because there are many less responsible pundits and politicians who, left unchecked, would be perfectly prepared to feed the immediate frenzy and fuel knee-jerk calls for reform of this or that.
The problem is probably at its most acute in the Family Courts. A decline in the number of court reporters and the limited number of published judgments, exacerbated by individuals and pressure groups who use social media to promote their particular agenda, often results in attacks not merely upon the process but on the judges and the lawyers trying to assist them. Even where cases are covered by the press, they rarely link to the judgment or set out the full context, and some are downright misleading. Journalists rarely attend court in such cases, at least partly because these hearings are not helpfully signposted in a way that criminal trials are. There are, of course, restrictions on what can be reported which can hamper a journalist’s ability to produce copy that will sell papers, and which can feed speculation about what corruption and injustice is going on behind ‘closed doors’. But there is much that can be reported, and much therefore that would, if it were more widely known, provide context for the public and for politicians when social media attacks are launched.
Some family barristers are trying to help put things right. The Transparency Project is tackling this head-on. I went to a meeting a few days ago when their commendable Media Guide was launched. The Transparency Project’s Family Court Reporting Watch is funded by the Legal Education Foundation and is specifically aimed at correcting misreporting and explaining the legal context of news stories in plain English. Initiatives of this sort may help to reduce the dangerous void personified by the vacant press seats in our courts.