Saturday, 2 October 2010

'Law for Journalists' - Chapters 1 to 7 Raw Notes

McNae’s 'Essential law for Journalists' Notes – Chapters 1 to 7

- Chapter 1 -

Compared to other countries, the UK's journalists have a fairly high level of freedom in terms of what they can say and what they can get away with

'Free press'. 'Journalists have no right in UK law distinct from those of other UK citizens'

Freedom of expression – 'Unlike other countries, the UK has no written constitution, so the rights of its people are said to be residual'. In other words, constitutional position is that its citizens are free to do whatever law does not prohibit

The law must find a balance between being free to expose controversial news and an individuals being able to defend themselves / their reputation. The law of defamation tries to find this balance.

The 'rule against prior constraint' – Developed in the UK to safeguard freedom of expression against forms of censorship

The main sources of law have traditionally been custom, precedent, statute.

The Human Rights Act 1998 – Prior to 2000, UK law did recognise fundamental human rights, having evolved over centuries to do so. However, a general right of privacy did not previously exist in UK law.

For journalists, the most important part of the convention is Article 10, which says in part 'Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and receive and impart information and ideas without interference by public authority'

Solicitors advise the client. Prepare the clients case, taking advice when necessary from a barrister specialising in a particular branch of the law. They may represent their clients in court, but in the past have generally been allowed to do so only in the lower courts. (The magistrates and the County courts)

Barristers are so called because they practice at the 'bar' of the court. Wear a wig and gown in the Higher courts, the Crown courts, and in the county courts, but not in the magistrates courts.

Regulation – OFCOM – Office of Communications, has the power to fine a broadcasting organisation which breaches regulations. Can close down 'pirate' broadcasters.

The UK's newspaper are not subject to any statutory control on who owns them. As a result, they are free to be politically partisan.

- Chapter 2 -

Standard of proof in criminal law – For anyone to be convicted of a criminal offence guilt must be admitted or proved 'beyond reasonable doubt'. This principle is often referred to as 'the presumption of innocence'.

Arrest without warrant – Police can arrest a person who has just committed, or is committing, an offence, or is about to commit one, or anyone for whom there are reasonable grounds for believing the arrest is necessary to achieve one of the purposes specified in the act.
Summons – 'A summons is a formal document, issued by a magistrates court, setting out one or more crime allegations in similar detail to a charge. It can be served on someone by being handed to them, being left at their address or by post. It requires them to attend the court on a specified date to respond to the allegation'

Arrest warrants – Magistrates can issues these, if sworn, written information is laid before them that a person has committed an indictable offence, or any summary offence punishable by imprisonment. It is a formal document in which a magistrate empowers any police officer to arrest the suspect wherever he/she is located in the UK

There is a risk of libel in media identification of crime suspects.

If, at the stage of discovering someone is being investigated by the police, the media publishes the suspects name or other detail identifying him/her in this context, the suspect could successfully sue the media.

A media organisation may decided to take the risk of publishing such news if it feels the person is unlikely to sue.

E.g – Politician or celeb. May not wish to alienate the media by suing.

One court proceedings have begun, a court may make an order forbidding the identification of a witness in any media report of the case.

- Chapter 3 -

Criminal offences are split into categories which are as follows:

Indictable-only offences – These are the most serious crimes, punishable by the longest prison terms (Murder, rape, robbery etc.) Can only be dealt with by a Crown court. Can also be referred to as 'triable only by indictment'

Either-way offences – Can be dealt with either at Crown court or at magistrates. Magistrates court may decide a case is so serious only a Crown court can deal with it. Either-way offences regarded as being of a lesser magnitude of criminality than indictable-only crimes.

Summary offences – Compared to the other 2 categories, the issues dealt with here are fairly minor. People charged with summary offences have no right of jury trial, but generally benefit from being dealt with more quickly

Actus reeus – The act
Menz Reeah – The mental element of the crime. Was it planned?

Strict liability removes or strictly limits any legal defences to a prosecution.

- Chapter 4 -

Preliminary hearings

Indictable-only offences – Such cases are often of great media interest. In these instances, no formal plea is taken from the defendant at the Magistrates court, because this is done later, at a Crown court arraignment.
Either-way charges

These hearings are for decisions on bail, and in each case, for procedure which determines at which venue it will be dealt with. In such a preliminary hearing, the defendant is asked to indicate to the Magistrates how he/she intends to plead.

Plead guilty – Treated as a formal plead of guilty, convicted, will be sentenced by magistrate

Restrictions automatically apply to media reports of a preliminary hearing at Magistrates court of either-only or indictable cases. The restrictions govern media coverage. Helps prevent the publication of material that could potentially create prejudice.

Restrictions in the 1980 act specify what can be published:

The name of the court
Names, addresses, occupations of the parties
The charge/s
Name of legal representative
'Arrangements as to bail'
Whether legal aid was granted

There are a number of examples of breaches of section 8. For example, the 2008 case of Jewish Chronicle Newspaper Ltd.

The media should be wary of reporting anything that suggests that a defendant will enter a mixture of pleas / any defamatory detail in denial of guilt.

- Chapter 5-

In Magistrates court defendants who face a summary charge are asked by the court clerk how they plead If they plea guilty, thereby convicted

Not guilty – A very minor offence may be tried there and then

A defendant convicted of an either-way charge in a magistrates court can be committed by it for sentence to the crown court if magistrates believe their powers are insufficient to adequately punish him/her

Section 8C – Under section 8C of the magistrates court act 1980 automatic reporting restrictions severely limit what can be immediately published from these pre-trial hearings in summary proceedings

The majority of cases will, as expected at the time that plea is made, be resolved in a summary trial, having at no stage much prospect of ending up in Crown court

The scope of the section 8C reporting restrictions: These automatic restrictions prevent the media from reporting the cases at magistrates court in which the defendant has formally pleaded not guilty.

Summary trials procedure:

Prosecutor can make an opening speech

Witnesses are then called to give evidence

Prosecution witnesses called first. Each asked questions by the prosecutor to elicit their evidence-in-chief

At end of prosecution evidence, defence may submit that there is no case to answer because the defence argues it is already clear that the prosecution cannot meet the standard of proof required

Any defence witnesses then called. They are questioned. Can be cross examined by the prosecutor

Binding over – Courts have the power to 'bind over' a person to 'keep the peace'. Can be used to resolve without trial minor allegations of assault.

- Chapter 6 -

Crown courts deal with the most serious cases

Types of crown court judges: High court judges – Wear distinctive red robes for criminal cases. Only they can try the most serious offences, such as murder

Circuit judges – They must be barristers of at least 10 years standing or be solicitors who have been recorders

Recorders – Part time judges. They have barristers or solicitors who have held 'right of audience' at Crown court. Usually referred to as the recorder

Crown court trial procedure – Media are free to publish immediately and fully what occurs in it when the jury is present in the courtroom.

Until the jury has returned all verdicts in the trial, no report should publish any matter discussed in court, or rulings made, while the jury was not in the courtroom.

After the jury is sworn, counsel for the prosecution will normally open the case in a speech.

Majority verdicts – A judge will initially advise a jury to arrive at a unanimous verdict on each charge.

- Chapter 7 -

Age of criminal responsibility – A child under 10 cannot be prosecuted for a criminal offence, because he/she is too young to distinguish between right and wrong

A juvenile accused on a crime may not be prosecuted. Instead, the police may issue a reprimand or warning.

Section 49 states that reports of youth court proceedings must not reveal:
The name
The address
The school

of a person under 18 who is 'concerned in the proceedings', either as a defendant or witness.

1 comments:

Really good 'raw' notes as you say. Excellent evidence that you have done the reading.

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