Kirk, R (on the application of) v Cardiff Crown Court & Ors

A Crown Court judge has responsibility for ensuring that proceedings are conducted fairly and without improper interference with the administration of justice. There is no statutory prohibition on members of the public taking notes in court. A judge may nevertheless require advance permission and restrict note-taking where there is good reason, assessed in light of the circumstances of the individual case. The paramount question is whether note-taking could interfere with the proper administration of justice. At the permission stage, it is sufficient that a challenge to the adequacy of the reasons for refusing permission is arguable; the court need not reach a concluded view.

Mr Kirk sought judicial review of the Cardiff and Newport Crown Court’s dismissal of his appeal against conviction. He did not attend the hearing, and his application was dismissed. Mr Ewing separately sought permission to challenge a Crown Court judge’s direction preventing him, as a member of the public, from taking notes during Mr Kirk’s trial. The judge had permitted a McKenzie adviser to take notes but refused permission to Mr Ewing because of concerns about the possible promulgation of information affecting other proceedings. The central issue was whether that restriction was arguably unlawful.

1. Mr Kirk’s application. The application to quash the Crown Court’s decision was dismissed because Mr Kirk did not attend after refusing to board the prison transport. The court considered his other grounds unarguable and was satisfied that the proceedings had been conducted fairly. The note-taking issue would not, in any event, have justified quashing his conviction.
2. Note-taking in court. The judge has an overriding responsibility to ensure the proper administration of justice and the fair conduct of proceedings. Open justice includes fair and accurate reporting. There is no statutory prohibition on public note-taking, but the practice has developed that persons other than journalists should seek the judge’s permission in advance. The decision whether to impose a restriction is judicial and must depend on the circumstances of the particular case.
3. A restriction on note-taking should be imposed only for good reason. A judge may require permission as a matter of practice, but permission should ordinarily be granted unless there is good reason to refuse it. Relevant risks may include disruption, prejudice to another trial, inaccurate or prejudicial publication, pressure on witnesses, witness coaching, and risks to jurors in jury trials.
4. The paramount question is whether note-taking could interfere with the proper administration of justice. It was arguable that the reasons given for refusing Mr Ewing permission were inadequate. Permission was therefore granted for him to bring judicial review proceedings, notwithstanding the restraint order under Supreme Court Act 1981. The court expressly made no concluded determination on the merits and directed that the proposed proceedings be served on the Crown Court, the Attorney-General, the Director of Public Prosecutions and Mr Kirk, and transferred to the Royal Courts of Justice.

• Cardiff Magistrates’ Court: Mr Kirk was convicted of assault on 10 December 2013.
• Cardiff and Newport Crown Court: His appeal was dismissed on 1 July 2014. The Crown Court also restricted Mr Ewing’s note-taking during the trial.
• High Court (Administrative Court): Mr Kirk’s application was dismissed. Mr Ewing was granted permission to bring judicial review proceedings concerning the note-taking restriction, with the matter transferred to the Royal Courts of Justice.