Disapplying Section9 of the Contempt of Court Act 1981: a pre-action letter

Last week I had to make the trip to Kent to attend the final pre-inquest review hearing into the death of Samuel Alban-Stanley. You can read more about Sammy here and you can read more about Kent County Council seeking to refuse permission to disclose an internal audit report into Sammy’s death in the write up of the PIR here.

An entire year into the pandemic the variation in approach to coronial court hearings, and the limitations to open justice as a result, is covered in this article in the Press Gazette by Charlotte Tobit published on Tuesday: Failure of coroners to facilitate media in inquests during pandemic an ‘affront to open justice’. It opens:

Journalists have slammed as “bizarre”, “frankly perplexing” and a “complete farce” rules that have banned them from following inquest hearings via video livestreams since the Covid-19 pandemic began.

I’ve had a range of court reporting experiences during the pandemic. I was told there were insufficient phone lines to enable me to attend Thomas Rawnsley’s inquest in November 2020, although this was resolved and I was able to attend remotely for the Coroner’s summing up and conclusion by the end. Also in November 2020 I attended Joanna Bailey’s inquest remotely which was held in Norfolk Coroner’s Court. There were a large number of press and public in attendance. In January 2021 I was unable to attend the final day of Matthew Copestick’s inquest because Rochdale Coroner’s Court’s version of Microsoft Teams needed updating, they had video or nothing, no audio version. The Coroner was happy to share her ruling after it had been handed down. In February 2021 I attended each day of Rachel Johnston’s inquest remotely and last month I was back at Sheffield Coroner’s Court for each day of Laura Booth’s inquest.

I have attended somewhere between ten and fifteen pre-inquest review hearings during the pandemic, a Court of Protection case, the COVID SEND Judicial Review, a judicial review application brought by a young autistic, learning disabled man detained under the MHA by Oxford Health NHS FT, and the four day Domestic Abuse Appeal.

My experience of trying to access Coroner’s Courts has been mixed, but on the whole Coroner’s and their officers have appeared keen to uphold the principles of open justice, as safely as possible.

A bit of context about me. I live in Devon, work part time and also have caring responsibilities as a result of the covid situation, that make it difficult for me to be away overnight. I’m also very mindful of the risk of travelling out of area (the Westcountry has by some stroke of luck had very low covid rates) and returning and potentially spreading a lethal virus.

On a number of occasions when I’ve been informed that the Court is open, the coroner says you’re very welcome to attend, I’ve explained my circumstances, and that it is not easy to travel and/or not a risk I feel is proportionate to take (going against all public health advice) and compromises have been reached. As an example, I’ve covered three pre-inquest review meetings into the death of Gaia Pope Sutherland since covid began. Gaia’s inquest is being held by the Senior Coroner for Dorset Racheal Griffin, the first PIR that took place in the pandemic was in November 2020 and I attended in person [it is possible to travel up and back to Dorset in a day, even if it is less than ideal from a risk perspective]. The next PIR the court were unable to facilitate remote attendance for the press but were happy to provide a recording afterwards. The PIR that followed I was able to join and report using an audio link.

When I attended Bournemouth Coroner’s Court in person their covid management seemed exemplary, there was a socially distanced waiting area, you had to give your name and address for contract tracing purposes, everyone wore masks, journalists were in a separate room with the video being relayed until it became clear it was not fit for purpose, and then we were moved into the public gallery of the council chamber. For me personally it was a relief as time progressed, and court’s appeared to update their technology and it seemed much more common and possible to facilitate remote attendance for journalists.

On 11 June last year, 11 months ago, the Chief Coroner issued guidance on Remote participation in coronial proceedings via video and audio broadcast. This guidance is clear:

2. The current position is as follows, further detailed below.
(a) It is permissible to hold a partially remote hearing;
(b) It is unlawful to livestream any proceedings from a coroner’s court;
(c) It is permissible to use live video to hear evidence from witnesses and/or for participation by interested persons;
(d) It is permissible to use audio only lines to enable public and/or press participation, as long as the coroner has expressly disapplied s9 of the Contempt of Court Act 1981 and given a warning as to recording etc;
(e) The coroner must him/herself physically be present in the court when conducting any hearing.

The only person who must be physically present in court is the coroner. It is perfectly possible for press and members of the public to attend remotely.

It continues:

Open justice, meaning public access to justice, is the fundamental principle underpinning the way in which all courts deal with any remote hearing. However, the current pandemic has necessitated the increased use of partially remote hearings. Response by coroners to the pandemic must ensure that there is public access to hearings whilst acting within the framework of the law.

And continues:

The current pandemic has increased the need to use technology to facilitate remote participation in hearings. It is the Chief Coroner’s view that partially remote hearings should take place wherever possible, if the technology allows, it is in the interests of justice and its use is consistent with the administration of justice. Each senior coroner must consult with their own relevant local authority to ensure that there is adequate technology in place.

The reminder of the principle of open justice is made, along with the suggestion that court rooms should remain physically open if safe to do so, and there is no need for a hearing to be one or the other:

This should not inhibit the use of physical courtrooms in line with social distancing guidelines and as long as they can be accessed and used safely. The coroner must be present in court for all hearings and to satisfy the principles of open justice, the courtroom as far as possible should remain accessible to professional participants, interested persons, witnesses and in particular must be open for the public and the press even if partially remote participation is taking place during a particular hearing.

Further in the guidance it explains that press and public access must be via audio link only:

Access to the public or press remotely can only lawfully be given by way of audio transmission if the coroner expressly disapplies s9 of the 1981 Act. There is an absolute statutory prohibition of members of the public or press having access to a visual broadcast, including a livestream of proceedings.

It then gives advice on how to do that and an example warning:

Coroners cannot provide an audio link to facilitate access to either the public or the media from outside the court building because s9 Contempt of Court Act 1981 prohibits it except by express leave of the court. For leave to be given the coroner should give permission for the use of such an audio device for use in the court building and hence to vary the effect of s9 of the 1981 Act. The coroner should make clear that the variation of disapplication of s9 only applies to access to the hearing and that it remains a contempt of court to record, play, dispose or publish a recording or transcript of proceedings. A suggested warning or similar form of words to be read out at the start of any inquest proceedings:

“I hereby give permission for the use of the audio device/link to be used in this court building and therefore I vary the effect of s9 of the Contempt of Court Act 1981. This disapplication only applies to access this particular hearing. It remains a contempt of court to record, play, dispose of publish a recording or transcript of the proceedings. That means it is a criminal offence to make or attempt to record or broadcast these proceedings.”

This is the warning that has been read out more or less word for word in each remote hearing I’ve attended, it takes about 30 seconds, a minute max. That’s all that is required for a Coroner to vary the law.

A couple weeks later, on 29 June 2020, the Chief Coroner issued further guidance, Recovery from the Covid-19 pandemic. It includes the following statement:

It will be essential for each and every senior coroner to work closely with their local authority or local authorities and the police, where they employ coroners’ officers to make sure that a return to conducting more inquest hearings is done in a safe way – that risks to coroners, members of staff or any other person connected with the operation of the system of coronial proceedings are managed appropriately.

and then continues later:

The use of video and audio for partially remote hearings should be actively pursued. By using technology, and subject to the interests of justice on individual cases, the attendance at the court by those other than the coroner and their staff may be avoided. See Chief Coroner’s Guidance No. 38.

I just can not comprehend how it can possibly be proportionate or safe to expect me to travel from Devon to Kent to report on a pre-inquest review hearing, or a full inquest for that matter. Why is my safety, as a freelance journalist, of less importance than anyone else’s?

My concerns relate to the distance I have to travel (5.5hr drive each way, or 5.5hrs on public transport and two overnights – total of 8 train and 2 tube journeys for one PIR), others I come into contact with on the way when I invariably have to stop for refreshments if driving, the requirement to stay overnight during a global pandemic (twice if travelling by public transport), the people I come into contact with at the court, caring responsibilities that I have at home, and having done the trip once now, the approach to risk management in the court.

It was clear last week that:

  1. It would have been perfectly technologically possible for me to have attended remotely. Indeed one of the instructing solicitors joined on an audio link.
  2. The court accommodated the preferences of everyone else involved, for example, Sammy’s mum, uncle, solicitor and barrister were in court in person. Counsel for Kent County Council and North East London NHS FT attended remotely, and were relayed from the Coroner’s laptop screen to the court room. The Coroner and two members of court staff were in the room. It’s clear from the guidance the only person required to be in court is the Coroner. It is perfectly possible for all other parties, including press and the public, to attend remotely.
  3. The approach to risk management was more relaxed than what was displayed at the only other in-person hearing I’ve attended during lockdown. There was only one way in and out of the building. Doors were not blocked open so everyone touched the same door handle (I didn’t see anyone clean it while I was there). There was a communal waiting area where everyone had to wait. My name was taken by a member of court staff on arrival, I was told ‘you know it’s only a PIR’, indeed I did, and that was it. I was asked to wait in the communal area. I wasn’t asked where I’d come from or for my contact details, so I’m not entirely sure how Track and Trace would work if someone was later to alert the court that they had developed covid symptoms. It was a wet but warm day and no windows were open.

When it came to discussing how the upcoming inquest hearing would be held things got very relevant to this discussion. It appeared to be the case that there had been some confusion about arrangements discussed at the last PIR. I wasn’t at the last PIR but there was obviously discussion about space requirements if a jury were called, and limitations in relation to space and who would be present in person. The family had understood that if the inquest went ahead without a jury, that witnesses would attend in person to give their evidence. Angela Patrick, representing Sammy’s family, summarised the family’s position as follows:

AP: The bottom line, with respect ma’am, is the family very much wish to be in the room with witnesses giving their evidence, although they appreciate the challenges of the public health crisis… Family wish to be in the room and wish to have support of their legal team throughout to give instruction in person… Family appreciates counsel attending today have been able to speak without a mask, and you have been able to speak without a mask. We anticipate witnesses will also be able to give evidence unmasked. In short hand, the family really would appreciate if any suggestion witnesses won’t be giving evidence live and in person, that an application is made to give evidence remotely and that that is done soon so the family can make submissions in response if necessary.

Coroner: I assume you’re inviting me to call all witnesses to come into court?

AP: as a default position, yes, but if the suggestion is they attend remotely, that reasons are identified and submissions provided

I can completely understand why bereaved families wish to look witnesses in the eye when they’re giving evidence. Communication via video is not the same as in person. Sammy’s family are left feeling that he, and they, were ignored and overlooked when they asked for help when he was alive, and his Mum explained to me afterwards that she has a concern that remote attendance allows witnesses to keep their distance again.

There are many pros and cons to this discussion, and I can understand why virtual evidence does not feel satisfactory to bereaved families. When accountability and scrutiny of public bodies is so hard to come by, a virtual or hybrid hearing is unsatisfactory for some.

I can also understand why witnesses would not wish to attend court, during a pandemic, to give their evidence. I can understand why counsel for Kent County Council and NELFT would not wish to attend court, during a pandemic. After all, I do not wish to attend court during a pandemic either. Counsel for the council and Trust were invited to offer a view.

Mr Landau, representing Kent County Council had this to say:

I respectfully resist that application. The reason why people aren’t appearing in courts at the moment is doing so is a risk to their health and lives, and a risk to others…

Of course if the family wants to attend in person they should be able to do so with their representatives. In so far as witnesses are concerned, courts are now very experienced at hearing live evidence from witnesses, and coroners are able to have effective hearings and effective inquests without witnesses being in court in the building themselves.

Ma’am I think until this pandemic is completely over, the notion that witnesses should be summoned to appear in court without masks for preference of family to see them in court, in my submission is not the correct approach.

Mr Turner, representing NELFT added:

Yes I agree with my learned friend. From the Trust perspective it would be preferable for witnesses to be given the option as to whether they feel comfortable or not, attending in person, for health reasons. I have to say though I did expect that the coroner’s office would have standard practice at the moment, it would be useful to get a steer on what you’re doing at the moment with inquests like this and what your preference is.

The Coroner responded explaining her powers and the recommended approach:

The Chief Coroner’s Guidance states that where it is possible to attend and give evidence remotely, unless there is a reason to not do so. I can order a partially remote hearing, I could allow that before the pandemic, and have done, usually for people living abroad and evidence was given remotely… Technology has changed and we’re hearing a lot more evidence remotely and via video evidence…

Would only be unusual circumstances in which we’d insist on witnesses coming into court, usually when they don’t have access to a decent video connection. I will only hear evidence via audio visual means, not just on the phone. If there was a problem with bandwidth or technology would expect witness to get to somewhere they can give evidence, or when particularly difficult evidence in relation to an individual witness over whom their may be some concerns.

For standard cases, this and other jurisdictions are going for remote wherever possible, encouraging remote attendance, not just risk of those participating but also other staff involved with maintaining building as well. We are still in a difficult position in relation to the pandemic itself.

As someone who’d travelled across the country to attend this hearing I found myself somewhat reassured that there was an acknowledgement and awareness of the risks to attending court in person. Keep in mind that witnesses would only usually attend for a day at most, and few would give their evidence for that long. As a journalist wishing to report the entire inquest, currently listed for two weeks, I’d have to be in court every day.

Imagine my dismay when Ms Patrick asked the Coroner about press and public attendance and she highlighted the statement and policy on the Kent County Council website. Mr Landau made a request for counsel to be able to attend remotely, the Coroner had no objection, again highlighting:

Its members of the public and press who can attend in person, because of issues with the audio link that need to disapply Section 9 of the Contempt of Court Act. Public and press have to come in person… they can be granted an audio link, but that’s not routine practice here, unless there’s exceptional reasons to do so, that’s on a case by case basis.

The policy states:

What constitutes an exceptional reason is not defined and will be determined by the Coroner on a case by case basis but press convenience or staffing limitations will not constitute an exceptional reason.

Where to even go with this. I’m a relatively straight forward person and in my mind, this is just deeply illogical. How can it be possible to acknowledge the public health risks to witnesses, to legal representatives, to those responsible for maintaining court buildings, while simultaneously disregard risk and require public and press to attend in person. And why? An audio link was in use anyway, the Contempt of Court Act had be to be varied, so why not facilitate others to use it?

I guess we’ll find out soon. This morning this letter was sent by Shirin Marker of Bindmans LLP to the Coroner (if you click on the link you can open it in a new window and read it). It starts:

We act for Dr George Julian in relation to the decision of the Assistant Coroner for Kent North-East (“the Coroner”) to refuse her permission to attend two pre-inquest review hearings in the inquest touching upon the death of Samuel Alban-Stanley (“the inquest”) remotely. These decisions were taken on 22nd March 2021 and 4th May 2021. Both of the decisions were based on a policy applied by the Court, entitled “Notice for Press”, which is also challenged in these proposed proceedings. The reasons given in those decisions (and in the policy) suggest that Dr Julian will not be granted permission to attend the upcoming inquest proceedings remotely.

The decisions, and the policy itself, were unlawful and in breach of Article 10 of Schedule 1 to the Human Rights Act 1998. So as to address the illegality, the Coroner is respectfully invited to review the decisions and to permit Dr Julian to attend the inquest hearing, itself, remotely.

We would be grateful if you could please treat this letter as a pre- action letter sent in compliance with the Pre-action Protocol for Judicial Review. As the inquest is due to commence on 24 May 2021, this matter is urgent. We therefore respectfully invite the Coroner to provide a response to this letter on an expedited basis. This will enable Dr Julian to bring a judicial review challenge prior to the inquest commencing.

The Coroner has been asked to respond by 4pm on Wednesday 12 May. I’ll keep you posted on what happens next.

I’d like to end by thanking my crowdfunders who not only covered my costs of attending Sammy’s PIR last week, but whose support enables me to report on inquests like Sammy’s and has enabled me to send this letter. I mean support in the broadest sense including financial support, interest and sharing of my coverage, photos of babies and pets that drop into my DMs after a heavy day, the legal twitterati who similarly drop into DMs and provide such reassurance when I’m doubting myself, and the friendship and solidarity too. Thank you.

If the Coroner resists our requests, then I guess we’ll be left with no option but to proceed with a judicial review. If that happens I’m afraid I’ll be launching a crowdfunder to cover it. I hate asking for money but I also hate the idea that Sammy’s inquest wouldn’t get the public scrutiny that it deserves. Watch this space.

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