McNae also gives that Lord Bingham said that “the proper functioning of a modern participatory democracy requires that the media be free, active, professional and enquiring” and that is as long as when working for the public interest (certain information is valuable to the society).
The press is free in UK and journalism can be therefore called " ‘the fourth estate’ - the body of professional who police the criminal justice system and act as the public’s eyes and ears - 'a bloodhound as well as a watchdog' ”. (ref.2) And court reporters exercise watchdog role on the justice system having at the same time not much more than the same rights as citizens of this country protecting them in difficult or controversial situations surrounding some of the reporting techniques.
Nowadays media have better protection against libel actions; act from 1960 applies the protection of Qualified Privilege. *(more on Privilege in post from week 4- in here)
Thanks to freedom of expression, everyone (including press) in Uk has a right to communicate information and ideas. Without this right Democracy wouldn’t exit. Textbooks like McNae give that until 2000 UK had ‘residual’ rights – making people free to do whatever law does not prohibit. Before the constitution embedded from European law the law was set by law-jury trial and the rule against prior restraint. After the European Convention of Human Rights was adopted directly into UK law human rights became codified (incl. Freedom of Expression).
Two provisions in section one of the convention - article 8 (which establishes a right to privacy) and article 10 (which is a right to freedom of expression) are of special concern to journalists.
Privacy Act in Convention (Art 8) did not previously exist within UK law but constant changes to adjust UK conventions to Human Rights act led to developments within case law. The case law is the system by which reporters of previous cases and the judges ‘interpretation of the common law can be used as a precedent where the legally material facts are similar’.
This part of the law acts as a “lawsuit which protects privacy by an individual to prevent publication of a story about his/her personal life, or of a picture or film which is argued to breach his/her privacy, or for lawsuit to seek damages is such material has already been published.” (ref.1) For journalists the most important part of the Convention is Article 10 Freedom of Expression thanks to which “Everyone has the right to freedom of expression. This right shall not include freedom to hold opinions and to receive and impart information and ideas without interference by public authority.” (ref.1)
Journalism itself is intimately related to Human Rights and the rule of law in a free society, with free speech and the right of the citizen to express themselves to the public good. (ref.2)
Journalism and law are closely related professions. "Criminal law such as contempt of court places grave restraint on what journalists can write or broadcast and presents a constant danger of imprisonment or fines. Civil law such as the law of libel can result in multimillion pound claims for damages and compensation." (ref.2) A professional journalist needs to be very familiar with branches of the law. The law is important to journalists not only because it is a fantastic source of news but also it is a constraint on the actions of journalists. Press can see this aim to be of such principle that sometimes the forms of obtaining that information can be questionable (undercover journalism). Within this idea hides the main conflicting idea of obtaining information that is created because of two opposite sections within the European law, Freedom of Expression and the Privacy Act. (ref.2)
Within the law of Defamation, libel and slander “strikes a balance between the media being free to express wrongdoing and individual being able to defend reputation from baseless attacks.” (ref.1)
Contempt of Court Act 1981 restricts reporting in the court and this could be also seen as restriction on freedom of expression (recent example: Coroners & Justice Bill 2009 & Counter Terrorism Act 2008, McNae's, ch1.).
Another type of restrictions put on press are so called Injunctions (recent example: Lilly Allen who complaint about press crossing the line and disturbing her right to privacy). Injunctions are “stopping publication when media organisation plans to air matter which an individual argues will breach his/her privacy or duty of confidence owed to it.” (ref.1)
PUBLIC INTEREST
The Public interest is the main priority for a journalist to pursue their inspiration, “the information’s value to society is argued to be particularly high, or potentially so.” (ref.1)
Acting in the Public interest is supported by The Freedom of expression law and Qualified Privilege or Absolute Privilege in certain circumstances. “Under the European Communities Act from 1972 the UK is part of European Union, EU treaties and other EU law are thus part of UK law. “(ref.1) After World War II, Western European nations signed a treaty creating the Council of Europe which was a body that would promote individual freedom, political liberty, and the rule of law.(ref.1) This council’s rules led to a further treaty, The European Convention for Protection of Human Rights and Fundamental Freedoms (ECtHR), which includes fundamental laws like right to life, freedom off torture or freedom of expression. The European Court of Human Rights was created to which individuals can take their case to this court to argue that a signatory nation has failed to protect them from, or to sufficiently compensate them for , a breach of Convention right by a public authority. (ref.1)
The Human Rights Act 1998, that came to force 2 October 2000 increased influences of the Convention and the ECtHR on UK courts because the act integrated the Convention into UK law.
The UK does not have a written constitution or "fundamental law". Going back to ancient rules of services of law, in England there is still a common law tradition and the constitution is based on historic documents (eg the Magna Carta); there is also statute law (Acts of Parliament) and case law (the actual decisions made by judges and juries). Case law is a general term used when speaking of sources of law.
The fount of justice" in the UK is "above the law" and can't be made to answer for her actions in court. This might seem quaint but since the elected Prime Minister by tradition has inherited all the powers of the Monarch (defined by lawyers as "The Crown in Parliament" acting with The Royal Prerogative) This evolution from absolutist Monarchy means that the modern Prime Minister combines in practice the role of head of the legislature (since the Prime Minister must be the head of the biggest party in parliament). (ref.2)
"The Prime Minister is actually held in check by the courts, by the House of Lords and by the Act of Settlement which limits the power of the Monarch and the executive and, in theory, denies the Monarch (and the Prime Minister) the right to rule without the consent of Parliament. But these checks are not as strong as the explicit separation of powers doctrine enshrined in the US constitution and its institutions." (ref.2)
CROWN, everything in English law flows around it. Into the law structure in the UK we can distinguish Criminal and Civil divisions. Within the hierarchy of courts we have the highest and the last stage of Appeal in European Court of Justice, lower down Supreme Court, The Court of Appeal and the High Court. Before this stage the matters will spread depending on the division (criminal/civil). Criminal offences will be dealt with in the Crown Court, civil in the County Court, further down from the Crown Court we would move onto Magistrates' Court and from County Courts into Tribunals.
CIVIL LAW deals with disputes between citizens where the community at large is not much affected, except by the need for there to be a way of resolving disputes. Civil disputes include divorce and actions for libel; where two parties to a dispute want the matter settled with justice; or where one person is demanding compensation from another. (Smith vs Smith; as opposed to R (ie the Queen or the state) vs Smith, as in the criminal courts.) (ref.2)
The Diane Blood case is a good example of civil law developing in action, and creating precedent.
Looking into language of courts it is essential to remember that the person taking the action is called the plaintiff and the person the action is taken against is called the defendant. If the defendant loses we do not say he is "guilty" we say the court has found against him or held him liable and, usually, ordered him to pay compensation (and legal costs). (ref.2)
After a writ has been issued the trial will be set down to be heard in the appropriate branch of the High Court or - if the judges decide - in a County Court (a more junior, regional version of the High Court). Most CIVIL cases are held without juries, except for libel. Journalists have access to County Courts, writ room and even to a written transcript of the trial (though this may not always be available, and is extremely expensive). (ref.2) Importantly, in civil cases a judge (and jury if present) decides the justice of the matter on the "balance of probabilities" when considering evidence. This makes life more difficult for defendants (for example journalists in libel cases) than in a criminal court (see below) where the important principle of the "presumption of innocence" means that the prosecution case has to be proved "beyond reasonable" doubt. (ref.2)
CRIMINAL LAW deals with offences against society as a whole (such as murder, violence in general or blasphemy) or offences against another person which - (although they may also be a civil-type dispute between people) are abhorrent to society as a whole. Examples include fraud, dangerous driving, robbery, murder, rape and other types of violence or threatening behaviour.
The main differences between the barrister and the solicitor are that the barrister appears in court representing the client and the solicitor doesn't necessary have to appear in the court, although these days it is likely that they do. As journalists we would be taking our matters to a solicitor rather than barrister.
The Crown Court Prosecution (CPS) decides whether the case will be brought to the court.
Crimes are divided into two main categories, indictable or "arrest-able" offences which are more serious crimes (or accusations of crime), such as a murder, which carry a sentence of more than five years. Once arrested a person must be brought before a Magistrate within 24 hours (the cherished right of Habeas Corpus) and the police must show that there is enough evidence to proceed with the case. The exception is of course suspected terrorism. New legislation - extremely controversial - allows the police to hold suspects much longer while they gather evidence. (ref.2)
And non-indictable offences, accusations of crimes carrying a sentence of less than five years. The police cannot make an arrest for a non-indictable offence - unless there's good reason (eg the person is drunk, a danger to himself or others, or is likely not to turn up a court). Otherwise the accused will receive a summons to turn up at a Magistrates' Court. (ref.2)
Few last points to that are certainly worth mentioning are that it is incredibly important for journalists to not only have a wider knowledge about the legal systems and the constitution in the country they are practising their profession at but also to stay alert to challenges from the sides of unreasonable or unlawful restrictions on their freedom. They have to remember that there are two constitutional bulwarks that protect freedom of expression in UK such as jury trial and rule against prior restraint. And last but not least for a journalist to remember is to follow the Code of Ethics that should guide journalists in their work.
Ref. 1.McNae's Essential law for Journalists (20th Edition)
Ref. 2. Media law and ethics, notes for week 1 of Media Law and ethics module by Chris Horrie
