England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Cardiff Civil and Family Justice Centre 2 Park Street Cardiff South Wales CF10 1ET
		21st January 2015

1. MR JUSTICE GILBART: There are two applications before me in the list today. The first is from Mr Maurice Kirk. He seeks an order that the decision of the Crown Court sitting at Cardiff and Newport on 1st July 2014 should be quashed. In that order it dismissed his appeal against his conviction on 10th December 2013 by the Cardiff Magistrates for assault.
2. Mr Kirk had applied for a statement of case which was provided by His Honour Judge Crowther QC on 8th September 2014. I also have before me an application under CPR 19.2 by Mr Terence Patrick Ewing to be added as an interested party. He is the subject of a civil proceedings order made under section 42(1) of the Supreme Court 1981 of 12th February 1990. He has also issued an application to be permitted to bring an application for judicial review to quash two decisions of Judge Crowther with whom the proceedings relating to taking of notes of him.
3. So far as Mr Kirk is concerned this matter was listed today at the Cardiff Civil Justice Centre. However, the clerk was informed that were staff shortages at the prison and Mr Kirk, who is a serving prisoner, could not be taken to the Civil Justice Centre. I made arrangements that the matter be listed here at the Crown Court because I was anxious that Mr Kirk should be able to have access to justice, and I did not consider that in this case a video link would be an appropriate way of dealing with it. I considered that the matter should be dealt with in open court.
4. The court has been informed by the prison authorities that Mr Kirk refused to get on the bus. Although the court has subsequently received a telephone call from Mr Kirk's sister saying that he was removed from the bus, the court accepts the account given by the prison authorities. It follows that Mr Kirk is not present and I dismiss his application.
5. I should say for completeness that although there is one ground of Mr Kirk's which may have been arguable and which mirrors the ground which is now put forward by Mr Ewing, the other grounds put forward by Mr Kirk are in my judgment entirely unarguable. Having read the transcript of proceedings I am entirely satisfied that the proceedings were conducted with impeccable fairness by His Honour Judge Crowther QC.
6. But Mr Ewing applies for permission to bring proceedings relating to the order of the judge that he be prevented from taking notes in court. I have to consider whether or not that is arguable.
7. The facts are as follows. In short-terms this was a very straightforward trial of an alleged assault on a prison officer. It was made immensely complicated by the somewhat idiosyncratic approach of Mr Kirk to the conduct of proceedings; he was representing himself. During the course of proceedings the judge was concerned that there were persons in court taking notes. On 7th April 2014, at this court, the judge said this at page 5G:

"We're prepared to let one of your supporters sit in front of the dock to take notes which at the conclusion of the case can be surrendered to you or will be surrendered to the custody of the court. That does not include of course any notes relating to your conduct of the case but none of the notes prepared by your friend are to leave the court room unless it be with you. Do you understand?"

8. Then there appears on the transcript for 8th April, during cross-examination of the prison officer by Mr Kirk, this at page 12C of the transcript:

"No one in the public gallery has permission to take notes without my leave. No leave has been asked, and given that Mr Kirk is, since at least the middle of yesterday afternoon in a position to see and write to make notes it would take very special circumstances for leave to be given."

9. Then after the case had been adjourned to continue with the Crown Court now sitting at Newport there appears in the transcript at page 8 starting at H this exchange:

"JUDGE: Are notes being made in the public gallery? Are notes being made?

MALE SPEAKER: Yes.

JUDGE: I think I've said before notes are not to be made without permission having being asked. Is permission going to be asked?"

That person then asked permission. He was a man called Mr Jeffrey Matthews. He said he was asking permission as a McKenzie adviser. The judge asked him if he was intending to broadcast or promulgate the notes in any way and he said "they are for my and Mr Kirk's use". The judge granted permission.

10. Then later on at Newport there arose the ruling which affected Mr Ewing. It was during cross-examination of a witness called PC Mason and at page 26 of the transcript this took place:

"JUDGE CROWTHER: Pause please. I dealt with one application by a member of the public to take notes. I see another member of the public is taking notes."

He asked why that was and this was Mr Ewing. He said he was proposing to take notes. The judge said: "For what purpose?" The answer was:

"Because I'm a member of the public and as far as I'm aware there's no legal restraints in taking notes."

To which the judge said:

"This is a case in which there is an appeal in another court centre. I'm concerned that promulgation of information regarding this case may have an adverse effect upon the course of justice in that matter. I have allowed somebody acting as Mr Kirk's McKenzie Friend to take notes. I'm not prepared to allow anybody else to take notes in this case. You will not take notes sir. Thank you very much."

11. Now there was a subsequent exchange of letters concerning that because Mr Ewing caused a letter to be sent to the court in which he challenged or queried, I should say, the ruling concerning the taking of notes. At page 45 of the bundle is a letter written on 29th April 2014 by an officer of the court, C Harridge, which says this:

"Thank you for your letter dated 26 April 2014. I can confirm that your letter has been placed before HHJ Crowther QC and replies as follows.

1. Mr Kirk applied he for the court's permission that a member of the public be allowed to assist him by taking notes.

2. Mr Kirk made that application upon the basis that he did not have his glasses, and could not see to write.

3. That application was granted and a member of the public (who may have been Mr Ewing) sat in the well of the court and took notes. At 15.32 pm or thereabouts Mr Kirk volunteered that his glasses were in fact among the property in the cells and he retrieved them...

5. Thereafter he made his own notes and the note taker withdrew from court.

6. There was not a direction that no member of the public should take notes: rather that no member of the public should take notes without having asked the court's permission.

7. This is a conventional rule and one which is designed to ensure that no prejudicial material leaves the court through an inexperienced reporter.

8. It is not a rule which applies to representatives of the media and the court was open.

9. At a previous hearing of Mr Kirk's case a member of the public had repeatedly sought to take notes covertly and without asking permission. He was warned to continue to do so would constitute a contempt in the face of the court, ie disobedience to a direct instruction.

10. No direction has been that note taking is forbidden. HHJ Crowther would expect that the court's permission be asked in the usual way. If Mr Kirk indicates the notes of another are likely to help to conduct his case that such permission would be given."

12. It is said by Mr Ewing in his application that there is a right of a member of the public sitting in court to take notes and that there is no general right in a Crown Court judge to prevent the taking of notes.
13. In my judgment, 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. It is arguable that a fundamental aspect of the proper administration of justice is the principle of open justice which includes the fair and accurate report of court proceedings.
14. There are certain statutory and discretionary exceptions. There are statutory prohibitions, for example on the taking of photographs or the taking of recordings. There is no statutory prohibition however on the taking of notes. The Contempt of Court Act 1981 does 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 but it is arguable that the circumstances under which notes may be taken must be tailored to mitigate the potential risks which may arise. There can be all sorts of risk arising in proceedings including the disruption to proceedings, to the fairness of the court proceedings because notes taken in court by those less familiar from the media with a duty to avoid publishing material which could cause prejudice in another trial or cause other harm to the administration of justice. In jury trials in particular note taking could, in some cases, increase the risk to jurors, in particular because of the publication of prejudicial or inaccurate material on line or on social media.
15. I note of course that journalists are now with the permission of the judge allowed to use Twitter to convey material from court and of course there is always the risk that if it is misused jurors may engage in comments if they have access to a Twitter account. There can also be risks relating to coaching and briefing of witnesses in civil and criminal proceedings. A witness in a trial or on appeal may use the notes 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 which would put the witness under pressure.
16. So there can be risks. I need not comment on the publication of sensitive material but having looked at those matters I remind myself that there is no statutory prohibition on the public taking notes in court. The practice has 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. The judge always has the responsibility to see that the conduct of proceedings is fair to all parties and that it would not harm the administration of justice otherwise. The decision of whether there should be any restriction on the taking of notes in court is a judicial decision and it is a matter to be determined by each individual judge on the merits of the circumstances before him or her.
17. It is arguable that a denial of the ability to take notes must be exercised only if there is good reason. It is arguable that a judge may adopt a practice of requiring permission to take notes but that the judge should grant permission to take notes unless there is good reason otherwise.
18. It is arguable that the paramount question for a judge would be whether the taking of notes could interfere with the proper administration of justice. It is arguable here, and I express no view about it, that the reasons put forward by the judge for refusing permission for the taking of notes were inadequate. For that reason I am prepared to grant permission to Mr Ewing to bring these proceedings. In other words to make the application for judicial review and exercise my powers that he should be permitted to do so notwithstanding the restraint order against him. I make it abundantly plain that I do not consider that I am capable of giving a settled answer to his application in the absence of argument from the Attorney-General. The Attorney-General has been served but as Mr Ewing very fairly pointed out, he has only been served with the current application to allow him to bring the proceedings. There will have to be the process of serving him with the application for judicial review.
19. I make it plain that I am not reaching a concluded view. I consider that before the court determine this they are going to have submissions on the practice such as it is of preventing notes from being taken in court and consideration of what occurred on that occasion. I should also add that I make it plain that this matter would undoubtedly not have persuaded me that Mr Kirk's conviction should be quashed. To that limited extent this application succeeds.
20. MR JUSTICE GILBART: I am going to order that the transcript of of my judgment be available. I am going to authorise it to be made available. You will have to pay the fee.
21. THE CLAIMANT: Yes, I am obliged. The issue then arises as to the interested parties are obviously the --
22. MR JUSTICE GILBART: You should serve the Crown Court, you should serve the Attorney-General and the DPP. You have will have to serve Mr Kirk. I see no point in serving the others Mr Matthews, Mrs Kirk and so on.
23. THE CLAIMANT: Ministry of Justice.
24. MR JUSTICE GILBART: The Attorney-General.
25. THE CLAIMANT: I am obliged my Lord.
26. MR JUSTICE GILBART: Thank you for the courtesy with which you have presented your arguments Mr Ewing.
27. THE CLAIMANT: I always like to be courteous in court my Lord.
28. MR JUSTICE GILBART: I hope you are always courteous everywhere.
29. THE CLAIMANT: Yes, indeed. I try my best.
30. There is of course the question of venue, whether it would be held in London or Cardiff. I have no views either way. I know this was originally instituted in London because I live in London but the --
31. MR JUSTICE GILBART: As you do, it seems to me, it is better to have it heard in London. It will probably be more convenient for the Attorney too.
32. THE CLAIMANT: It was transferred here because of Mr Kirk's ongoing appeal, as your Lordship dismissed that, I can see it may go back.
33. MR JUSTICE GILBART: I agree. I will order it to be transferred to the Royal Courts of Justice.
34. THE CLAIMANT: I am obliged.
35. MR JUSTICE GILBART: Thank you Mr Ewing.