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Alleged hacker’s bail hearing divides news outlets over reporting restrictions

Jake Davis arrives at Westminster Magistrates Court. Image: Anthony Devlin/PA

The arrest of Jake Davis, an 18-year-old from the Shetland Islands who is alleged to be a key member of hacker collective LulzSec, was widely reported by national news organisations last week.

Like his arrest, Davis’ bail hearing at Westminster Magistrates Court yesterday was well covered, receiving top billing on both the Channel 4 News and Telegraph websites for several hours in the afternoon.

But the story divided the major news organisations over what they should and should not report from the hearing, based on restrictions put in place by section eight of the Magistrates Courts Act 1980. The Act, which is designed to minimise the risk of prejudicing any future trial, automatically places reporting restrictions on hearings which are in effect unless lifted by the judge. They permit journalists to report only the following:

1. Name of the court and names of the magistrates
2. Names, addresses and occupations of parties and witnesses and ages of the accused and witnesses
3. Names of counsel and solicitors in the proceedings
4. Offences with which the accused is charged, or summary of them
5. Any decision to commit the accused or any of the accused for trial; any decision on the disposal of the case of any accused not commuted
6. The charge or charges, or a summary of them, on which the accused is committed for trial; the court to which he or she is committed
7. Bail arrangements, including conditions of bail, but not any reasons for opposing or refusing it
8. Whether legal aid was granted
9. If proceedings are adjourned, the date and place to which they are adjourned
10. Any decision of the court to lift or not lift these reporting restrictions.

Point 6, which allows for the reporting of the charges against the accused, extends to anything detailed on the charge sheet submitted in court. Some news outlets stuck hard and fast to the rules, but others, including Channel 4 News, the Telegraph, the Independent, and the Times, reported additional details of the evidence against Davis that are technically protected by the restrictions.

Reporting details not listed in the Magistrates Court Act or covered by the charge sheet would not put a news outlet in contempt of court, but it would be a breach of the Act and carry a possible £5,000 fine.

Following a discussion between Channel 4’s news team and lawyer, its article was amended shortly after publication to remove the details in question.

The Telegraph also changed its story, in which the headline and first and second paragraphs were based on restricted details, although only this morning after I had queried the legality of the piece with a press officer there. The paper refused to comment on the reasons for amending its coverage.

The Independent article, which reports the same details of evidence against Davis as the Telegraph previously had, plus quotes from the defence and prosecution lawyers that appear to have been said in the hearing, remains unchanged at the time of publishing. The Times article also remains unchanged. No one from the Independent or the Times was available to comment at the time of publishing.

The differing approaches of national news organisations reflect something of a grey area over what should and shouldn’t be reported from hearings under the Magistrates Court Act. The Act has never been strictly observed by news outlets, a lawyer at a national newspaper told me, saying that the guiding principle tended to be whether the details reported risked prejudicing a future trial.

David Allen Green, head of media at law firm Preiskel & Co LLP, told Journalism.co.uk that the reporting of committal hearings is a “legal minefield,” adding: “Even experienced journalists and editors can get the law wrong.”

Media law consultant David Banks said that journalists tend to “push at the boundaries” of the Act but that prosecutions are rare, and only likely if the details reported by the press were in dispute in court or likely to prejudice a trial.

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Guardian: David Banks on Bahrain’s attempt to sue the Independent

I spoke to media law consultant David Banks this morning for this article about Bahrain’s announcement that it intends to sue the Independent for defamation.

He explained that under case law in the UK local and national governments can’t sue for defamation, as outlined in Derbyshire County Council vs The Times, 1993. He went on to say that one way to circumvent the Derbyshire judgement would be for an individual Bahraini minister to take legal action against the newspaper, but added that the minister would have to prove personal defamation and would likely be up against a robust defence from the Independent. See more on the story in my report.

This afternoon, Banks expands on these legal issues for the Guardian, adding “a note of caution” regarding the Derbyshire judgement:

The judgment refers to the “democratically elected” local and central government of the UK. It does not expressly include the unelected governments of other countries. Whether the high court would take a different view of the unelected government of Bahrain as a claimant than it would a local authority here is not set out.

It would set a curious precedent, though, for the courts here to say that our own elected governments should expect robust media criticism, but unelected dictators and despots can rely on the full protection of our libel laws.

Full the post on Guardian.co.uk at this link.

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Jon Venables’ new conviction reignites anonymity debate

The anonymity debate surrounding Jon Venables, who was jailed in 1993 for the murder two-year-old James Bulger, was reignited today after news that Venables has been sent back to prison for two years for downloading and distributing indecent images of children.

Venables served just under eight years behind bars for the murder of James Bulger with friend and accomplice Robert Thompson. Upon their release in 2001, both men were granted new identities under the Mary Bell order.

Venables, however, was arrested again in March this year, appearing in court today via video-link.

He is reported to have pleaded guilty to three offences under the 1978 Protection of Children Act, for downloading 57 indecent pictures of children, distributing three images between February 2009 and February 2010 and 42 images in February 2008.

The conviction has re-ignited the debate over Venables’ continued anonymity, and he appeared in court today under his original name.

Protection of his new identity was renewed following his arrest, over fears he would be at risk of physical harm if the public knew his identity, although a judge lifted reporting restrictions in June relating to the new charges brought against him.

His lawyers Irwin Mitchell Solicitors sent a copy of the gagging order to all publications across the country in June, reminding them of the legal restrictions preventing them from reporting the details of Venables’ new identity.

Media law consultant David Banks told Journalism.co.uk that while it will probably be widely debated, his anonymity is likely to remain in place, both now and upon his release.

“I suspect the anonymity will continue because firstly, he’s going to be in prison until the authorities are satisfied he is no longer a threat, and then, when they decide he poses no threat, the court will take some convincing that, if he is no longer a threat, he should be identified and therefore put at risk of death or serious injury at the hands of vigilantes.

“It’s a balance – his right to life versus the public’s right to protection. The courts, thus far, have taken the view that the public is protected by means other than letting everyone know who he is and where he lives. This case might change that view, but I suspect it will not.”

Earlier this year, following Venables’ arrest, Lady Butler-Sloss gave her support to Jack Straw’s decision to keep his offence and identity a secret.

“This young man may or may not be tried. He may or may not have committed offences,” she told peers. “There is, of course, at least the possibility that he has committed no offence.  And consequently, he may therefore be allowed again to be out (of jail) on licence.”

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Josh Halliday: David Banks on thinking beyond the pay wall

November 13th, 2009 | No Comments | Posted by in Editors' pick, Events, Newspapers

Josh Halliday digests former Daily Mirror editor David Banks’ thoughts on bloggers, pay walls and ‘aggregationists’, given in a guest lecture to Sunderland University students.

Weighing in on the pay wall debate, Banks had some strong views – the choicest quote being:

“Everybody talks about paying to break through the paywall, I don’t know anyone who quite knows how Rupert plans to do this. Nobody talks about it, they just say ‘Oh yeah, well if Rupert says it then it’ll work’.”

Full post at this link…

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