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What can Crown lawyers say to the media?

By Steven | February 10, 2010

The Crown Law Office has put out a very sensible, but rather general, protocol containing guidance for prosecutors when dealing with media inquiries.

It doesn’t mention civil proceedings, but it does apply to the Crown Law Office itself, and the general principles at the beginning seem broad enough to cover civil cases too.

It makes no attempt to define who the media is for the purposes of commenting. Presumably it includes freelancers? Probably it includes people writing for trade magazines. Might it include bloggers?

While the policy emphasises that it’s for guidance only, there is an expectation that prosecutors will (a) have a media policy and (b) generally release particular sorts of information when asked.

There’s an enticing heading “Information on the internet” but the discussion there contains no information on prosecutors making public statements. It just notes that it’s a growing challenge and that “prosecutors may need to take steps more frequently and at an earlier stage of the proceedings to seek suppression orders” (eg concerning prior convictions).

Practically speaking, the protocol effectively gives some handy advice to journalists about what questions they can expect prosecutors to answer:
1. Was there an arrest? Where was it? What is the nature of the charges?
2. (After the accused has been in court) what is his/her name, age and region of residence?
3. When’s the next court appearance?
4. What sort of hearing is it (remand, committal, plea, pre-trial hearing)?
5. What are the names of the prosecutors and defence lawyers?
6. What has happened procedurally in the case so far?
7. Has advice been sought from the Crown Law Office or Crown Solicitor?
8. (Once submissions have been presented) Can I have a copy of the submissions please?

In general, reporters can also expect prosecutors to explain the law or procedure after the proceedings, and also to indicate whether the Solicitor-General is considering an appeal.

The protocol says summaries of facts should not be given out until the prosecution presents its submissions in open court and “where there is a contest over the accuracy of the summary it should not be made available in that form until the contest has been resolved.” This seems wrong. There’s no reason to force reporters to rely on their notes of an oral presentation of the summary of facts once they’re read out in open court. The prosecutor should hand over the summary to help ensure accuracy in reporting, and alert the journalist to the fact that the facts are contested.

Requests for exhibits during court proceedings are supposed to be referred to the court for an application under the search rules. This is a bit unfortunate. Some exhibits have already been dealt with in open court (a transcript of a key tape recording might be an example) and not having access to them is a barrier to accurate reporting. Court search requests can take a long time.

The protocol also says information concerning Chambers/in camera hearings should generally not be provided. I think this is odd, too. The media are specifically entitled to be present in almost all criminal proceedings, even when the rest of the public are excluded. And the reporting of chambers proceedings in civil cases is not a contempt of itself. The fact that a hearing is in chambers is often (though not always) an indication that there may be sensitivities, and possible legal restrictions, concerning the matters discussed. But that doesn’t seem to justify this blanket rule. I hope that at least it will be subject to the general rule that prosecutors will explain the process when asked.

A little PS: Information held by the Crown Law Office (and by Crown solicitors on contract to the Crown) is generally subject to the Official Information Act. That’s not mentioned in the protocol. A request for information from a journalist will be an OIA request, even if it doesn’t mention the OIA, and if it’s being refused in any way, it needs to be refused properly… that is, statutory reasons for refusal must be given, and the requester told of the right to have the decision reviewed. There may often be good reason to withhold information, such as legal professional privilege, privacy, possible contempt, and prejudice to the maintenance of the law, but those exceptions certainly don’t cover all the information held by prosecutors. And they doesn’t mean that requesters OIA rights can be ignored, annoying as they may be to prosecutors.

Topics: Internet issues, Journalism and criminal law, Media ethics, Official Information Act | 6 Comments »

6 Responses to “What can Crown lawyers say to the media?”

  1. Graeme Edgeler Says:
    February 10th, 2010 at 6:08 pm

    There’s no reason to force reporters to rely on their notes of an oral presentation of the summary of facts once they’re read out in open court.

    I can think of a reason – summaries of facts are very one-sided, frequently (usually?) painting a defendant in a light somewhat worse than reality – even where the person is guilty. They present the Crown case, without reference to the defence argument, and the possibility the defendant may be acquitted/actually innocent.

    In a general sense a summary of facts must be defamatory (they allege criminal action), but the presentation of the summary in court (e.g. in an opening statement, or at a first call where bail is considered) is protected by absolute privilege. If you hand a copy of a (false or unsubstantiated) summary of facts to a reporter, however, I can’t see any available defence to a defamation claim.

  2. Graeme Edgeler Says:
    February 10th, 2010 at 6:10 pm

    ‘Or can I?’, he thinks, just after clicking “Submit Comment”.

    Does a publication mandated under the Official Information Act count as a publication? I can’t think of a legal reason it doesn’t, but it doesn’t seem quite right that it would.

  3. Steven Says:
    February 10th, 2010 at 7:19 pm

    The OIA would apply if the media requested it, and insulate the police from liability “in respect of the making available of the information” (s48), though everyone always forgets about the OIA.

    More importantly, the media have a statutory qualified privilege for reporting what’s happened in court proceedings. That gives them the right to report the summary of facts as part of a fair and accurate account of the proceedings in court (which would require them to include reference to defence arguments, if there are any). I can’t see the prosecutors attracting any liability for supplying the media with the words they’ve just read out (unless perhaps the summary is different and more defamatory). If there is any gap, I imagine common law qualified privilege would fill it.

  4. Graeme Edgeler Says:
    February 11th, 2010 at 12:58 am

    I can’t see the prosecutors attracting any liability for supplying the media with the words they’ve just read out (unless perhaps the summary is different and more defamatory).

    I was thinking analogously with parliamentary privilege.

    *An MP makes a speech in the House – absolute privilege.
    *A media organisation publishes details of that house speech – statutory qualified privilege.
    *An MP reads that speech on the steps of Parliament, or emails that speech as a press release or gives a copy to a journalist – no privilege.

    I don’t see why the same wouldn’t apply to a lawyer (or witness) in a court proceeding. Accuse someone of being a criminal in court – absolute privilege; accuse someone of being a criminal outside court – no privilege.

  5. Steven Says:
    February 11th, 2010 at 10:55 am

    I see your point.

    But what about ordinary common law qualified privilege, where the prosecutor and reporter have a corresponding interest/duty in facilitating accurate reporting and open justice?

  6. Graeme Edgeler Says:
    February 11th, 2010 at 1:48 pm

    I like the idea, but couldn’t that apply analogously to statements by MPs, where the MP repeating their statement outside Parliament to the reporter who missed it when it was originally said have a corresponding interest/duty in facilitating accurate reporting and access to government?


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