New costs sanction worsens chill on journalism
New costs sanction worsens chill on journalism - October 2004
JOURNALISTS will have to avoid another potential pitfall in their reporting of criminal matters this month – part of a tightening of the screw on the media generally.
The Costs in Criminal Cases (General) (Amendment) Regulations 2004 come into force on October 18, giving the Court of Appeal, crown and magistrates’ courts the power to make media organisations pay wasted costs incurred by a party in criminal proceedings where there has been “serious misconduct” in the coverage.
The new rules could have expensive consequences for the press, if the costs of the aborted trial of footballers Jonathan Woodgate and Lee Bowyer are anything to go by. The Premiership stars’ original trial in 2002 collapsed after the Sunday Mirror published a prejudicial interview with the father of assault victim Sarfraz Najeib as the jury was deliberating.
In the subsequent contempt proceedings, Andrew Caldecott QC, for the Attorney General, estimated the cost to the taxpayer of the aborted trial was £1.1m. The newspaper was eventually ordered to pay a £75,000 fine and £54,160 towards the Attorney General’s costs. Under the new regulations, however, its bill for capsizing such a major trial could conceivably run to hundreds of thousands of pounds if a judge felt the Crown Prosecution Service (CPS) or a defendant should be compensated for wasted costs.
Previously, wasted costs orders could only be made against a party to the proceedings or their lawyers where a hearing was aborted or costs were otherwise thrown away as a result of an “unnecessary or improper, negligent act or omission” on their part. The new sanction – while clearly well-intentioned – provides additional evidence of the less hospitable climate in which the media now operates. Tell-tale signs of a chillier environment for journalists are proliferating. For starters, England has long been regarded as the libel capital of the world because of the ease with which people can sue for defamation under English law.
US courts, in contrast, have even been known to decline to enforce English libel judgements because they find them unpalatable on free speech policy grounds. Added to this backdrop is this year’s ECHR decision in the Princess Caroline privacy case, which has purported to cordon celebrities going about their personal business off-limits for reporters and photographers.
Remember that, in March last year, the Press Complaints Commission tightened its Code of Practice in relation to newspapers’ payments to witnesses and criminals (Clauses 16 & 17).
Then throw into the mix, for good measure, the fact that a group of media organisations, including The Times, recently felt it necessary to challenge the use of ‘no win, no fee’ agreements, brought in by the Access to Justice Act 1999, on the basis that they tend to expose the media to speculative defamation suits by uninsured claimants of limited means.
Despite a few chinks of sunlight such as journalistically helpful developments in common law qualified privilege and pilot schemes to televise certain appellate court hearings, the cumulative effect of it all is the emergence of a legal landscape that is less favourable to free reporting. The new costs rules apply to any part of criminal proceedings such as a preliminary hearing, trial or sentencing.
Power to make such costs orders already exists in the civil courts; the new regulations extend it to the criminal jurisdiction. Jurors, witnesses and members of the public may also be ordered to pay such costs.
Regulation 3F states: “If (a) there has been serious misconduct (whether or not constituting a contempt of court) by a third party; and (b) the court considers it appropriate, having regard to that misconduct, to make a third party costs order against him, the court may order the third party to pay all or part of the costs incurred or wasted by any party as a result of the misconduct”.
Endorsing the rules, Secretary of State for Constitutional Affairs Lord Falconer said the move fired a warning shot to anyone who risked causing criminal proceedings to collapse through “serious misconduct such as witness intimidation, juror impropriety or prejudicial reporting”.
He was supported by the Lord Chief Justice, Lord Woolf, who said the new sanction could be “extremely valuable”. Lord Woolf, though, added: “Like many of the courts’ existing powers, it will need to be used with discretion to ensure it is only used to further the achievement of justice and not used in an indiscriminate manner.”
It comes to this: in relevant circumstances, a media organisation could be ordered to pay the costs of either a defendant who is privately funded, or, in cases where the defendant is in receipt of state funding, the costs of the Criminal Defence Service.
All the various prosecuting authorities, not only the CPS, could benefit from such an order. There is a right of appeal, except if the order is made by the Court of Appeal. Any misconduct before October 18 will not be caught by the provisions. Uncertainty over the precise meaning of “serious misconduct (whether or not constituting a contempt of court)”, is likely to be an area of concern.
Journalists were familiar and comfortable with the ambit of the law of contempt under long-established statute and case law. Indeed, the penalties handed down in the Woodgate/Bowyer fiasco came as no surprise to the industry – and editorial and in-house legal heads rolled as a result.
But everyone will now be unsure how “serious misconduct” will be interpreted. Is this actually an ill-defined extension of contempt law, as Lord Falconer’s equating of “serious misconduct” with prejudicial reporting would seem to suggest?
While no one would suggest that journalists responsibly undertaking court and crime reporting duties will routinely risk falling foul of the new law, it is clear that reporters and editors need to realise there is yet another good reason to watch their backs, particularly those on local newspapers that do not have deep pockets.
Nigel Hanson
Solicitor
Media Team, Foot Anstey
The Firm: This "top rate" regional player is "able to deal with anything put before it," clients said. Its media group offers publication advice to a considerable fraction of the regional press, including about 50 daily newspapers and 150 weekly papers. The group is commended for its overall expertise on such subjects as data protection, copyright and media-related trial work.
The Lawyers: The “leading light” of this practice, Tony Jaffa is regarded as one of the market’s true pioneers in the regions. He is respected for the “terrific job” he does for his clients.
Source: www.chambersandpartners.com
Published 27/09/2006.
