No permission required for public to take notes in court

Ewing v Cardiff and Newport Crown Court [2016] EWHC 183 (Admin)

Bereaved friends and other members of the public often take notes of the evidence given in Coroner’s Courts. Whilst Coroners can dictate much of the practice and procedure within their own courts, the recent case of Ewing in the criminal jurisdiction has clarified that it is only in very limited circumstances that restrictions should be placed on observers taking notes in public hearings and that no express permission to take notes is required.

“Although the Court may, for good reason, withdraw the liberty to take notes, the default position is that anyone who attends a public hearing is free to take notes.”

In Ewing the Crown Court judge had directed that no person was permitted to make notes of the proceedings other than with his permission: he threatened that it would be a contempt of court to disobey his order. 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 then be used improperly in order to have an adverse effect on another court hearing.

On a judicial review, the Administrative Court held that the principle of open justice should be observed and that those who attend public court hearings should be free to make any notes they wish of what occurs. 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.

Open justice is of course not absolute, but the paramount question should be whether a person’s note taking would be likely to interfere with the proper administration of justice. This might be the case if the purpose was to brief a witness who was not in court on what had already happened in civil cases where the judge had directed that a future witness should be out of court while other evidence was being given. If there was a likely risk to the proper administration of justice then a court or tribunal could impose restrictions – but merely a potential risk will not suffice.

These same principles must apply to public inquest hearings. Even where it may be thought preferable by some for a matter stated in court not to be further disseminated (e.g. out of sensitivity to the family or to protect the feelings of another vulnerable person), there is no general power or discretion to exclude the public from an inquest. Unless the information falls within the statutory exception of r. 11 which allows a coroner to direct that the public should be excluded from all or part of an inquest hearing in the interests of national security, then all inquest hearings must be held in public, reinforcing the message that there should be transparency in the coronial process.

The restriction of note taking in a public court is, in any event, likely to be a futile exercise where an observer can leave the room, write down the details for future reference or publication and then return to the hearing. A prohibition that would be so ineffective in practice it is hardly likely to be found a reasonable step, whatever the feared interference with the administration of justice might be.