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Essential Media Law and Regulation (NCTJ) > Part 1 - Basic Knowledge of the Law, Courts, and Tribunals > Flashcards

Part 1 - Basic Knowledge of the Law, Courts, and Tribunals Flashcards

1
Q

What are the five main sources of law? What else do courts have to consider when making decisions?

A

Custom, Judicial Precedent (Case Law), Equity, Statute, European Union Law.

Courts may also have to consider the European Convention on Human Rights when making decisions.

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2
Q

What is Custom?

A
  • basis of Common Law
  • developed set of laws to be applied uniformly throughout the country
  • created by judges appointed by William the Conqueror
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3
Q

What is Judicial Precedent (Case Law)?

A
  • Common Law developed by precedent
  • superior court decisions usually binding on lower courts
  • judgements in court of law are cited as authority for deciding a similar set of facts
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4
Q

What is Equity?

A
  • developed in parallel to Common Law
  • set of legal principles that supplement law, ensure fairness and natural justice where the law does not provide alternative remedy
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5
Q

What is Statute?

A
  • Acts of Parliament (primary legislation) and secondary legislation supplement common law
  • increasingly influential, takes precedence over other types of law
  • judges interpret but cannot overturn legislation
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6
Q

What is EU Law?

A

Laws of European Union that are part of UK law

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7
Q

When did the UK join the EU?

A

1973

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8
Q

What will happen regarding EU law after Brexit?

A

UK will adopt as national laws the EU laws it wishes to keep

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9
Q

What are the two divisions of the law?

A

criminal and civil

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10
Q

What is dealt with in criminal law?

A

crimes deemed to harm the whole community

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11
Q

In whose name are crimes prosecuted?

A

In the sovereign’s name - R v XYZ

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12
Q

Who decides what is a criminal offence, in most cases?

A

Parliament

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13
Q

What is dealt with in civil law?

A

private claims and disputes between individuals and organisations

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14
Q

What are civil law disputes typically over?

A

torts or breaches of contract

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15
Q

What is a tort?

A

a civil wrong

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16
Q

In civil law, which court determines which party is in the right or wrong and provides redress?

A

civil court

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17
Q

What is the standard of proof in all civil cases?

A

Balance of probabilities

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18
Q

How do the language and terminology differ between criminal law and civil law?

A

Criminal law:

defendant prosecuted by Crown > pleads guilty/not guilty > if guilty, convicted and sentenced, if not guilty, acquitted

Civil law:

defendant sued by claimant > admits/denies liability > if liable, ordered to pay damages

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19
Q

What is the difference between a solicitor and a barrister?

A

Solicitor: advises clients, represents them in civil and criminal court, some specialise and may appear as advocates in the higher courts

Barrister: may be junior counsel or Queen’s Counsel (QC), QCs often referred to as ‘silks’, their clients are solicitors who ‘instruct’ them

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20
Q

Explain the hierarchy of the courts.

A

(draw)

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21
Q

What are the two types of magistrates?

A

lay magistrates and district judges.

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22
Q

What are lay magistrates?

A

Ordinary members of the public appointed by Ministry of Justice. Part-time, unpaid.

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23
Q

Describe a panel of lay magistrates.

A

Usually panels of three, chaired by a more experienced magistrate, assisted by a legally-qualified clerk.

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24
Q

What is a district judge?

A

A County Court judge who also decides smaller cases, family law cases, presides at public examinations in bankruptcy and deals with cases under the informal arbitration procedure.

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25
Q

What is the maximum period of time that magistrates can send convicted individuals to jail for?

A

One offence: six months.

Two or more offences: twelve months combined.

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26
Q

What happens if a magistrate deems a longer sentence is necessary?

A

Defendant is referred just for sentencing at Crown Court.

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27
Q

What three types of cases can magistrates deal with? Describe them.

A
  1. Indictable-only.

Most serious crimes, triable only at Crown Court before a jury. Magistrates’ court for bail hearing after being charged, then sent to Crown Court.

  1. Either-way.

Defendant can choose magistrates’ or crown court trial.

  1. Summary.

Minor offences, only magistrates’ court.

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28
Q

In which preliminary stages of a criminal prosecution do reporting restrictions apply?

A

Magistrates’ stages covering bail decisions and allocation/sending for trial hearings.

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29
Q

What happens to preliminary hearings of cases likely to be tried at crown court?

A

They are automatically transferred to crown court.

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30
Q

Which section of which Act covers reporting restrictions?

A

Section 52A of the Crime and Disorder Act 1998.

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31
Q

When do media report restrictions of preliminary proceedings apply?

A

When an either-way case is allocated, or an indictable-only offence is sent, to crown court.

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32
Q

What do the restrictions under s52A limit reporting to?

A
  1. identity of the court and name of district judge/justices
  2. name, age, home address, and occupation of the accused.
  3. in the case of an accused charged with ‘serious or complex fraud’, any ‘relevant business information’
  4. the offence(s) with which defendants(s) are charged or a summary of them.
  5. names of solicitors and counsel in the proceedings.
  6. date and place to which any committal is adjourned, if this is the case.
  7. arrangements as to bail (bail conditions, not reasons for refusal)
  8. whether legal aid was granted.
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33
Q

Can names of victims be mentioned under the s52A restrictions?

A

If, for example, a defendant is charged with assault, the name of the victim will be in the charge (part 4), and therefore reportable UNLESS it is a crime for which lifetime anonymity is granted for the victim.

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34
Q

Aside from the points listed in s52A, what else can be published?

A
  • that restrictions are in force
  • protestations of innocence by the defendant
  • that defendant has chosen trial by jury
  • setting scene
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35
Q

When are the s52A restrictions not in force?

A
  1. defendant asks for restrictions to be lifted (magistrates’ court’s discretion)
  2. court lifts restrictions without request from defendant
  3. proceedings conclude
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36
Q

Even if reporting restrictions are lifted, what does the Crime and Disorder Act 1998 NOT permit?

A

Reporting of argument in court about lifting until conclusion of all proceedings.

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37
Q

What applies in the absence of s52A restrictions?

A

Contempt of Court Act 1981.

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38
Q

What are youth courts?

A

Specialist magistrates’ courts dealing exclusively with juveniles.

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39
Q

What is a juvenile?

A

Someone under the age of 18.

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40
Q

What affects media reports of youth court trials?

A

Children and Young Persons Act 1933.

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41
Q

What does s49 of the CYPA 1933 state about identifying juveniles in reports?

A

Automatic restrictions apply whenever a juvenile appears in court for ANY reason - defendant, witness, or victim.

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42
Q

When does anonymity under the CYPA end?

A

When the juvenvile turns 18 and restrictions are lifted.

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43
Q

What is the scope of s49?

A

Must not include in particular name, address, educational establishment, place of work, still or moving picture.

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44
Q

Which two details are reportable in the case of a juvenile?

A

Age and gender.

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45
Q

In the case of juveniles, when can anonymity be extended to lifetime, and for whom?

A

In exceptional circumstances, for victims and witnesses, NOT defendant.

46
Q

When can juvenile anonymity be lifted?

A
  1. To avoid injustice to juvenile by the youth court.
  2. After conviction in the public interest.
  3. To help trace a juvenile charged with serious sexual or violent offences who has escaped custody.
47
Q

When is there no automatic anonymity for juveniles?

A

When they are at adult magistrates’ or crown court.

48
Q

What restriction may be imposed for juveniles in adult courts?

A

Discretionary restriction under s45 of the Youth Justice and Criminal Evidence Act 1999.

49
Q

What is characteristic of the s45 restrictions?

A

Almost the same as s49 of CYPA - must specify each juvenile it covers.

50
Q

What does the term ‘publication’ include?

A

Intenet and social media.

51
Q

How does the Ofcom Code 1.9 go further than CYPA and YJCA regarding juvenile identification in pre-trial investigations?

A

Ofcom Code s1.9 states that broadcasters should not identify any person who is not yet an adult when covering any pre-trial investigations, even though s45 and s49 restrictions apply when court proceedings begin.

52
Q

What are the two types of orders to tackle antisocial behaviour? Explain them.

A
  1. stand-alone anti-social behaviour injunction (ASBI) brought in high/county court for adults and youth courts for under-18s.
  2. criminal behaviour order (CBO) - magistrates’ (adults) or youth (juveniles) courts after conviction. Given as punishment.
53
Q

What is an ASBI intended to do?

A

Prevent repetition of behaviour.

54
Q

Who can be given an ASBI?

A

Someone with no previous criminal convictions.

55
Q

Is an ASBI a criminal or a civil order?

A

Civil.

56
Q

What is the stance on reporting restrictions for juveniles in ASBI proceedings?

A

No anonymity for adults. If an under-18 is given an ASBI, no automatic ban identifying them subject to the injunction, but courts may ban identification under a discretionary s39 order (CYPA).

57
Q

What are ASBI and CBO breaches considered to be?

A

Contempt of court - criminal offence.

58
Q

How are ASBI and CBO breaches dealth with?

A

By youth courts.

59
Q

Explain s49 anonymity in the context of juveniles accused of ASBI/CBO breaches.

A

In youth courts, s49 restrictions would normally apply. HOWEVER, s49 anonymity does not apply to juveniles accused of ASBI/CBO breaches. The courts may however impose anonymity under s39 CYPA, but magistrates must give reasons for doing so.

60
Q

What applies when a CBO is received in court?

A

s29 automatic ban in preceding criminal proceedings.

61
Q

What happens regarding reporting restrictions if a CBO is granted?

A

No automatic ban unless discretionary s39 is imposed.

62
Q

What happens regarding reporting restrictions if there is no s39 order imposed on a CBO element of a trial?

A

Media can report youth court conviction and CBO in two separate news reports. Anonymous in former and identified in latter, unconnected pieces.

63
Q

What are the three main functions of crown courts/appeal courts?

A
  1. to try indictable offences sent to them by magistrates (jury trial)
  2. to deal with cases sent for sentence from magistrates (no jury)
  3. to hear appeals from magistrates’ courts (no jury)
64
Q

What are the three types of judges and how are they referred to in media reports? (e.g. Mrs Jane Smith)

A

High Court Judge - Mrs Justice Smith
Circuit Judge - Judge Jane Smith
Recorder - the recorder, Mrs Jane Smith

65
Q

What is the protocol for media reports regarding majority jury verdicts?

A

May report if someone is convicted by majority, but undesirable to report if they are acquitted by majority as it taints them

66
Q

Where do appeals from the crown court on a point of law go?

A

High Court (QBD)

67
Q

Where do appeals against sentence/conviction by crown court go?

A

Court of Appeal

68
Q

What does s1 of the Sexual Offences (Amendment) Act 1992 state regarding the complainant’s identity?

A

The complainant’s identity is protected from the moment the sexual offence complaint is made.

69
Q

What are four indictable-only sexual offences?

A
  • rape
  • assault by penetration
  • causing/inciting a child under 13 to engage in sexual activity
  • causing/inciting a person who has ‘a mental disorder impending choice’ to engage in sexual activity
70
Q

What is the maximum sentence for indictable-only sexual offences?

A

Life imprisonment.

71
Q

Name four either-way sexual offences.

A
  • sexual assault
  • administering a substance with intent to engage a person in sexual activity
  • trespass with intent to commit a sexual offence
  • voyeurism
  • ‘upskirting’
  • exposure
  • sexual activity by a care worker
  • abuse of a position of trust, through sexual activity with someone aged under 18
  • causing or inciting prostitution for gain
  • anything involving a child (see textbook for full list)
72
Q

What in particular must you avoid publishing when reporting a sexual offence case?

A

Name, address, educational establishment, workplace, still/moving picture of (alleged) victim.

73
Q

Is there a ban on identifying the defendant in a sexual offence case?

A

No.

74
Q

Does lifetime anonymity for the (alleged) victim apply even if there is no conviction/prosecution?

A

Yes.

75
Q

When do the reporting restrictions surrounding identifying victims of sexual offences NOT apply?

A
  1. the complainant is dead.
  2. complainant gives written consent to being identified.
  3. complainant is charged with a criminal offence as a result of making a false allegation.

Discretionary cases:

  1. defendant applies to the judge to have the restrictions lifted so that potential witnesses can come forward and to not allow the application would be likely to substantially prejudice the defendant.
  2. editor or journalist persuades a judge to lift the restrictions as they place a ‘substantial and unreasonable burden on the proper reporting of the case and the public interest indicates that the restrictions should be lifted.’
76
Q

IPSO and Ofcom work with the law to prevent what?

A

Jigsaw identification.

77
Q

How is jigsaw identification best avoided?

A

All news organisations should report cases in the same way, it is preferable to not report the relationship between complainant and the alleged perpetrator of a sex crime. The word ‘incest’ must not be used in reports.

78
Q

What does clause 11 of IPSO and Ofcom state?

A

The media should not identify children under 16 (IPSO) or 18 (Ofcom) who are witnesses or victims in cases involving sexual offences, even if it is legal to do so.

79
Q

The victims of which other offences receive automatic lifetime anonymity?

A

FGM, forced marriage, and trafficking.

80
Q

What is the punishment when a publication is judged to be in contempt?

A

Fine unlimited by statute or prison for up to two years.

81
Q

Who can initiate contempt of court proceedings?

A

Crown court, higher courts, Attorney-General or someone with A-G’s consent

82
Q

What counts as a publication?

A

Anything printed or broadcast (including photos), anything said in a speech, play, concert, or any other communication addressed to any section of the public.

83
Q

What two things need to be shown for someone to be prosecuted with contempt?

A
  1. proceedings were active at the time of publication

2. published material created a substantial risk of serious prejudice or impediment to proceedings.

84
Q

Contempt is a _____ offence.

A

Strict liability.

85
Q

When do proceedings become active?

A

When:

  1. a warrant for arrest is issued
  2. an arrest is made
  3. a summons is issued or a document specifying the charge is served
  4. a person is charged orally (at the police station)
86
Q

When do proceedings cease to be active?

A
  1. person arrested is released without charge (unless on bail or ‘under investigation’)
  2. twelve months elapse after a warrant has been issued if no arrest is made
  3. case is discontinued for any reason
  4. defendant is sentenced/acquitted (NOT convicted)
  5. charge is ordered to remain on the file
87
Q

After a trial, when does a case become active again?

A

When an appeal is formally lodged and liability for contempt begins.

88
Q

What is the ‘free-for-all’ period?

A

The time between sentence passed in original trial and the appeal being lodged when the media can safely publish material, such as backgrounders.

89
Q

What is a backgrounder?

A

A feature prepared for publication post-trial that could not be revealed during ongoing proceedings to avoid prejudice.

90
Q

Why is there little chance of substantial risk of serious prejudice/impediment once proceedings become active again following an appeal?

A

Because appeals do not involve a jury, only judges, who cannot be influenced or prejudiced.

91
Q

What appeal outcome would mean that proceedings become active again?

A

Re-trial.

92
Q

What creates substantial risk of serious prejudice?

A
  • assumptions of guilt
  • previous convictions
  • pictures/descriptions where identity is at issue such as the suspect is facing an identity parade
  • interviews with eyewitnesses
  • suggestions of bad character
93
Q

What is safe to publish regarding contempt law and appeals?

A
  • common ground information

- if a re-trial is ordered after an appeal, care must be taken to avoid SRSP

94
Q

Where else does contempt apply?

A

In civil proceedings.

95
Q

When do proceedings become active in civil cases?

A

When a date for a trial/hearing is fixed

96
Q

Why is there less prospect of SRSP in civil cases?

A

Fewer civil cases involve a jury

97
Q

What does s3 of the Contempt of Court Act 1981 state?

A

There is a defence for alleged breach of the Act is the police are unable or unwilling to confirm someone assisting the police has been arrested AND a journalist can prove that s/he exercised all reasonable care but did not know and had no reason to know that proceedings were active.

98
Q

What does ‘all reasonable care’ mean?

A

Regular contact with police, records of all contact (what was said and when) right up to publication - JOURNALIST’S responsibility

99
Q

What does s4(2) of the Contempt of Court Act 1981 state?

A

That the court can impose a temporary postponement of reporting for as long as it thinks necessary to avoid SRSP/I to the administration of justice of these proceedings or others pending or imminent. This is a temporary order and the court must specify when it ends.

100
Q

What does s5 of the Contempt of Court Act 1918 state?

A

Protects coverage about a topical issue which is related to an ongoing court case or active proceedings.

101
Q

What does s20D of the Juries Act 1974 state?

A

It is an offence to seek/disclose detailed information from a juror.

102
Q

What does s11 of the Contempt of Court Act 1981 state?

A

A court can order that a name or any other matter should be excluded from media forever, if the court decides the name or other matter should be withheld from the public.

103
Q

What does s41 of the Criminal Justice Act 1925 prohibit?

A

photography, videoing, filming, portrait-making, or sketching in and around the court and publications of such material.

104
Q

Why does the term ‘precincts’ pose difficulty to the media and what must a journalist do in this case?

A

Because it is not defined. Check with the court.

105
Q

What happens if a jury is taken to visit an outside location?

A

This becomes the precincts of the court and the media must seek court’s permission to film at location. Jurors must not be filmed.

106
Q

How can the media legally make or publish portraits/sketches of proceedings?

A

Employing a court artist who memorises the scene and then sketches elsewhere.

107
Q

How do some TV stations get around the CJA 1925?

A

Virtual courtrooms with computer simulations of proceedings.

108
Q

What is the risk of shooting in or around a court?

A

Contempt.

109
Q

When did the law change to allow limited broadcasting of appeals and which court did it begin with?

A

October 2013, starting with Court of Appeal.

110
Q

Which court’s rulings are already filmed?

A

Supreme Court.

Essential Media Law and Regulation (NCTJ) (4 decks)

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