tim's experiment

The trouble with having 47 defendants in one case is not just that the proceedings become so long as to be a health hazard. People get tired and excited. Mistakes are made.

While this was understandably not featured in reports of the case of the 47 co-accused, there was a little problem with the matter of reporting. I am told that at the beginning of the hearing the prosecution complained that some media had not been observing the statutory restrictions on reporting of committal proceedings.

This was interesting, at least, to those of us who have been complaining for some two decades that the Department of Justice has effectively repealed all the statutory restrictions on court reporting by failure to enforce them. Indeed usually the only media who take any notice of these restrictions are those news organisations who believe that the government would leap happily on any legal excuse to give them a hard time.

Well, the assembled media in the courtroom asked the magistrate if he would remove the restrictions, in view of the enormous public interest in the case. The magistrate, quite rightly (we will get to the legislation involved in a minute) refused. Some of the defendants then said that they would not mind the restrictions being removed. The magistrate erroneously supposed this to make no difference.

The law on this subject is contained in Section 87A of the Magistrates Ordinance. This is modelled on a similar English law, although that ancestor is no longer with us because committal proceedings have been abolished in England and Wales.

A word on vocabulary. If you are arrested and charged with a serious offence the police will bring you before a magistrate. He will not decide your guilt or innocence. He will initially make sure you are available for future proceedings by putting you on bail or in custody. Eventually there will be a hearing at which he is invited to “commit you for trial”, meaning to pass the case to a higher court.

The reason for restricting reporting on these things is that the way the legal tactics go can work unfairly for the accused person. The prosecution has to convince the magistrate that it has a case. So it will wheel out all the evidence it is going to deploy at the eventual trial. The defence, on the other hand, has a good reason for keeping its assets to itself, because if the magistrate refuses to commit the accused for trial this does not amount to an acquittal. The prosecutors can brush up their evidence, pick holes in yours and try again. If you are tried and acquitted the verdict is final. You can – and this has happened – confess your guilt on the courtroom steps after the trial. There is nothing anyone can do about it.

The result of this situation in the days when witnesses all appeared in person was that the newspapers (this is an old story) would be full of the prosecution’s case, possibly for days. As the jury had not been chosen yet the people who were going to decide on the guilt or innocence of the accused person might be immersed in this deluge.

So to the restriction, which says that reporters may only report items on a list: the name of the court and magistrate, identity of the defendants and witnesses (if any), names of the performing lawyers, the magistrate’s decision and (a mysterious inclusion) whether the accused got legal aid.

Oddly enough, unlike its English predecessor, the ordinance does not explicitly allow reporting of whether bail was allowed and what conditions were attached to it. But this may be subsumed under “any decision of the magistrate to commit the accused for trial”.

There is no provision for the restriction to be lifted in cases which attract great public interest. There is, though, one way in which it can be removed: the magistrate must (the word “shall” is used, not “may”) waive the rule if any one of the defendants asks him to.

The reasons for this are also lost in the mists of time: public trials are supposed to be the default option, and it was believed that the defendant might feel publicity would help him in, for example, bringing new witnesses to light. So he (or she) should have an absolute right to opt for publicity if it seemed to be helpful.

But note that the defendant does not have to have a good reason and does not have to give one. Indeed in one famous case it was widely known that a defendant asked for the restrictions to be lifted because he had been paid a large sum by a newspaper which was eager to report the hearings. The hearings continued, with reporting.

The ordinance also requires the magistrate, if a defendant is not legally represented (i.e. does not have a lawyer to tell him about all this) to advise the defendant of his right to lift the restrictions and ask him if he wishes to do so. Local magistrates do not appear to be doing this, but as in most cases there will be no reporter present perhaps they have got out of the habit.

Anyway the moral of all this for reporters covering trials is very simple. If you want the restrictions to be lifted ask one of the defendants to exercise his right to have them removed. The magistrate has no discretion to refuse and it does not matter what the other defendants think of the idea.

Best do it surreptitiously, though. Exposing the government’s legal machinations could get you kicked off the Liaison Office Christmas card list for life.