Ewing v Crown Court Sitting at Cardiff & Newport & Ors

Those attending a public court hearing should ordinarily be free to make notes. That liberty forms part of the common law principle of open justice. A court may restrict or withdraw it only for good reason, principally where the note-taking is likely to interfere with the proper administration of justice. A general requirement that members of the public obtain permission before taking notes is not the correct starting point. Case-specific concerns must be supported by an evidential basis. The possibility of inaccurate publication, the existence of a personal website, or a general desire to maintain control of difficult proceedings will not ordinarily justify restricting note-taking.

The claimant sought judicial review of directions made by a Crown Court judge during Maurice Kirk’s appeal against conviction. The judge had stated that members of the public could not make notes without permission and had stopped the claimant from taking notes on two occasions. Permission to bring the claim had been granted by Gilbart J and Kenneth Parker J.

The claimant argued that the restrictions breached open justice. The central issue was whether a Crown Court may require members of the public to obtain permission before taking notes at a public hearing, and whether the restrictions imposed in this case were justified.

1. The claim succeeded. The court held that the common law principle of open justice ordinarily entitles those attending public hearings to make notes of what occurs.
2. The starting point is not that note-taking is prohibited unless permission has been sought and granted. Ordinary note-taking is unlikely, without more, to interfere with the due administration of justice. The distinction drawn in the Criminal Practice Direction between media representatives or legal commentators and other members of the public in relation to live text-based communications did not apply to ordinary note-taking.
3. The liberty to make notes remains subject to the court’s control. A judge may withdraw it for good reason where the note-taking is likely to interfere with the proper administration of justice. Relevant concerns may include briefing witnesses who have yet to give evidence, transmission of prejudicial material, distraction, or interference with court equipment or proceedings.
4. The restrictions imposed in Cardiff were based on a mistaken understanding that permission was always required. There was no sufficient basis for concluding that the claimant’s note-taking would prejudice the Bristol appeal, brief witnesses, or otherwise interfere with justice. The desire to assert the court’s authority was not a proper justification for an inroad into open justice.
5. The claimant’s inability to take notes had no bearing on the outcome of Mr Kirk’s appeal. Quashing the appeal proceedings or ordering a rehearing was therefore inappropriate. No formal declaration was necessary because the judgment clarified the correct approach.

The judgment does not state an appellate history. It records that permission to issue proceedings was granted by Gilbart J on 21 January 2015 and permission to apply for judicial review was granted by Kenneth Parker J on 15 May 2015.