Tag Archives: forensic patients

Reporting upon forensic mental health cases and identifying patients

By MARK PEARSON

What are the key policy factors influencing courts and tribunals attempting to balance open justice against other rights and interests in newsworthy cases involving forensic mental health patients? 

Associate Professor Tom Morton from UTS, ABC lawyer Hugh Bennett and I examined this question – and the related issue of whether the media could report upon such cases and identify the patients involved – in our recent article in the leading journal in the field, the Journal of Media Law.

Citation: Mark Pearson, Tom Morton & Hugh Bennett (2017): ‘Mental health and the media: a comparative case study in open justice’, Journal of Media Law, DOI: 10.1080/17577632.2017.1375261

Here is our conclusion:

Open justice in mental health proceedings need not be viewed in a vacuum. There are strong parallels with numerous other situations where the legislature and the courts find and apply exceptions to the open justice principle. There is much scope for consistency across Australian jurisdictions and across the many situations where the restrictions are in place because of different vulnerabilities faced by key participants in the court process – mental health patients, children, sexual crime victims, family law parties, protected witnesses and, in two Australian states, even those accused of sexual offences until after the committal stage of proceedings.

There is a strong argument that the courts should be most transparent when the public gaze is so sharply focussed upon them, and that public education about the workings of the justice system in the important area of mental health will be most effective when citizens are intrigued by a particular story and know its background. The courts might acknowledge that in some circumstances a story can be both “interesting to the public” and “in the public interest” – and that perhaps the two notions might not have to be mutually exclusive as Lord Wilberforce so famously suggested.

Full contents of the edition and subscription details can be seen here.

We compared four forensic mental health cases in Australia and the UK and highlighted some of the key competing rights and interests at stake when the news media or other parties seek to have mental health proceedings opened and to identify the patients involved. The approaches of the tribunals and courts we  studied showed the competing policy considerations in such applications were by no means clear-cut. They varied markedly from case to case with regards to the potential impact on the patient and other stakeholders and in their respective public interest value in the stories being told to broader communities. Policies around publicity are complicated when expert psychiatric opinion varies on the potential impact on the mental health and treatment regime for the patient.

The weighing of such important rights and interests is not a precise science where a pre-set formula will apply. Of course, important differences between Australian and UK jurisdictions inform such decisions, including different statutory frameworks for the particular tribunals, together with the lack of a formal human rights framework in Australia, comparable with the European Convention on Human Rights, which affords privacy and free expression rights. In Australia, these considerations draw upon the common law, because there is as yet no actionable tort of privacy invasion and free expression is limited to a High Court-designed implied constitutional freedom of communication with respect to “discussion of government and political matters”. Further, the various mental health tribunals dealing with applications from or regarding forensic patients operate within their own statutory frameworks, rules and practice directions which sometimes bind, and in other circumstances guide, their decisions on whether hearings can be held in public and, if so, whether parties and other participants might be identified.

In Australia alone, the nine jurisdictions have taken a variety of approaches to whether such hearings are held in public and whether parties must be anonymised in any reporting permitted. Open justice can be viewed as a policy continuum, ranging from closed hearings and a total ban on reporting at one end through to open hearings with full identification of parties allowed as part of a fair and accurate report of proceedings at the other. Somewhere in between are attempts to strike a balance between open justice and competing rights and interests with partial permissions; where the public or the media might be admitted to proceedings with a range of conditions placed upon the extent of identification of parties or witnesses allowed.

We developed  this list of key policy factors elicited from the cases reviewed, influencing whether a forensic patient or former patient might be given a public hearing or be identified in proceedings:

  1. Specific legislation, regulations, rules and practice directions relating to privacy and anonymity in hearings involving forensic patients or former patients;

  2. Whether there is informed consent from the patient to identification and publicity of his or her case;

  3. The extent to which a public trial and/or identification impacts upon on the life (ECHR Article 2), ill-treatment (ECHR Article 3), liberty (ECHR Article 5), and other rights, dignity and self respect of patients; including the impact of publicity and identification on their mental health and well being, ongoing treatment, safety and ease of re-entry to the community after treatment/rehabilitation;

  4. The impact of a public hearing or identification upon the right to privacy (ECHR Article 8) of the patient and other participants, and the confidentiality of personal medical details;

  5. The historic principle of open justice (ECHR Article 6): fundamental principles of transparency and justice ‘being seen to be done’, as espoused in Scott v. Scott; the public interest in transparency of mental health processes and proceedings;

  6. Freedom of expression and communication (ECHR Article 10); including the freedom of expression of the media, patients and other participants like hospital and prison personnel;

  7. The public’s right to know: public understanding of the mental health system and its treatment of patients; the public interest in knowing the outcome of highly publicised or emblematic cases; the public interest in knowing of wrongdoing in the mental health system; and the public interest in the safety and security of their communities;  

  8. Impact of identification and publicity upon other parties, including hospital staff, other patients, victims and their families;

  9. Public administration costs (economic and organisational) associated with implementing effective systems of publicity and identification. (For example, hospitals’ and courts’ management of media inquiries, extra costs of security for patient, special accommodation for public hearings, expense of installing video links etc);

  10. Stage of the process – for example, publicity and identification might be allowed on early applications related to conditions while institutionalised, but perhaps refused when re-entry to society is imminent or has already passed;

  11. The track record of the applicant media organisation/s in prior coverage and ethical management of privacy and consent issues, in this and perhaps in other comparable cases; the nature of the proposed program or publication and whether it is likely to be of a professional standard, balanced, accurate, reflective of a range of stakeholder views and sensitive to the patient’s experiences; and the context and focus of the identification of the patient in the media output;

  12. Whether a public hearing and/or identification of a patient might risk stigmatising mental illness.

Full contents of the edition and subscription details can be seen here.


Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2017

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Mental health and the media: a comparative case study in open justice

By MARK PEARSON

Our article comparing Australian and UK restrictions on the reporting of forensic mental health cases has appeared in the leading journal in the field, the Journal of Media Law.

Citation: Mark Pearson, Tom Morton & Hugh Bennett (2017): ‘Mental health and the media: a comparative case study in open justice’, Journal of Media Law, DOI: 10.1080/17577632.2017.1375261

Here is our abstract:

Media reportage about forensic mental health cases raises several competing rights and interests, including the public interest in open justice; a patient’s right to privacy, treatment and recovery; the public’s right to know about mental health tribunal processes; and victims’ and citizens’ interests in learning the longer term consequences of a publicised serious unlawful act. This article details a case study of successful applications for permission to identify a forensic mental health patient in both a radio documentary and in research blogs and scholarly works in Australia. It compares the authors’ experience in this case with three other cases in Australia and the UK, and identifies and weighs the competing policy issues and principles courts or tribunals consider when attempting to balance open justice with the rights and interests of a range of stakeholders in forensic mental health cases where the news media and/or patients are seeking publicity and/or identification.

Full contents of the edition and subscription details can be seen here.

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Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2017

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Filed under blogging, citizen journalism, contempt of court, courts, free expression, journalism, media ethics, media law, Media regulation, mental health, open justice, Press freedom, social media, sub judice, suppression, Uncategorized

How to challenge a ban on naming a mental health patient

By MARK PEARSON

UTS colleague Associate Professor Tom Morton, ABC lawyer Hugh Bennett and I will deliver a paper in Melbourne next week on our experiences applying to the Mental Health Tribunal of NSW for permission to name a forensic mental health patient in an ABC documentary and in our academic works.

CMCLlogoforblog19-11-15The occasion is the 2015 IP and Media Law Conference, hosted by the Centre for Media and Communications Law at the University of Melbourne Law School, November 23-24. The full program is here. I plan to blog a few of the highlights of the sessions I attend.

Our paper is titled ‘Mental health and the media: a case study in open justice’ and we present on the first morning of the conference. Here is its abstract:

News and current affairs reportage about forensic mental health cases raises a host of competing interests, including the public’s right to know about mental health tribunal processes; a patient’s right to privacy, treatment, and recovery; and victims’ and the broader community’s interest in learning the longer term consequences of a publicised serious criminal act. This article details a case study of the legal processes involved in applications for permissions to identify a forensic mental health patient in NSW in an Australian Broadcasting Corporation Radio National Background Briefing documentary ‘The Man Without a Name’ and in subsequent research blogs and scholarly works including this article. It begins by backgrounding the restrictions on publicising mental health tribunal cases in Australia, summarising the case study, examining the specific restrictions applying to the Mental Health Review Tribunal in NSW, detailing the processes followed in the successful application by the authors to name the patient, comparing the case with Australian and British cases, and making some recommendations for further research and reform.

Tom and I recently co-authored an article on the ethics of that same experience in Pacific Journalism Review, titled ‘Zones of silence: Forensic patients, radio documentary, and a mindful approach to journalism ethics’. Here is our abstract. Full contents of the edition and subscription details can be seen here. Reference: Morton, T. and Pearson, M. (2015). Zones of silence: Forensic patients, radio documentary, and a mindful approach to journalism ethics. Pacific Journalism Review, 21(2), 11-32.

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Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2015

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Zones of silence: Forensic patients, radio documentary, and a mindful approach to journalism ethics

By MARK PEARSON

Congratulations to Pacific Journalism Review editors David Robie, Annie Goldson and Barry King on their newly released special edition ‘Documentary Practice in the Asia-Pacific’.

I was honoured to be invited by research colleague Associate Professor Tom Morton from UTS to co-write an article centred upon the law and ethics behind his ABC Background Briefing documentary ‘The Man Without A Name’, broadcast in 2014. In the article we detail the story behind the documentary and the legal and ethical challenges we faced in navigating the publishing restrictions of the NSW Mental Health Act and some related legislation.

PJR Special Edition vol21(2) OP FINAL CORRECTED 685wide_0

Cover of the special Pacific Journalism Review edition Volume 21 (2)

Here is our abstract:

This article explains a collaborative and critically reflective journalism research project stemming from the wish of an incarcerated forensic mental health patient to be named in public communication about his case. The authors are academics and journalists who embarked upon a combination of journalism, legal processes and academic research to win the right to name Patient A in a radio documentary and in academic works—including this journal article and research blogs. As a case study, it explains the theoretical and ethical considerations informing the journalism and the academic research, drawing upon traditions of documentary production, the principle of open justice and the ethical framework of ‘mindful journalism’. It concludes by drawing lessons from the project that might inform future practitioners and researchers embarking upon works of journalism and research involving vulnerable people and a competing set of rights and public interests.

Full contents of the edition and subscription details can be seen here.

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Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2015

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Why we can name this forensic mental health patient, but you can’t: open justice in action

By MARK PEARSON

Almost 13 years ago an interpreter at the Community Relations Commission in Ashfield in Sydney – Ms Radmilla Domonkos – died in a fire that had been deliberately lit. Two colleagues were critically injured.

Long_Bay_Jail_2

Long Bay Correctional Centre in Sydney. Photo: JBar, WikimediaCommons

A co-worker was charged with her murder and with maliciously damaging property by fire with intent to endanger life.

After two years of court processes in March 2004 the accused was found not guilty on the ground of mental illness and has since then been held for treatment at the Long Bay Prison Hospital under the Mental Health (Forensic Provisions) Act (1990).

As in many other jurisdictions, the Mental Health Act (2007) prohibits at s. 162 the publication of the names of such patients even if they wish to be named.

As my colleague and research partner Associate Professor Tom Morton explained in an ABC Radio National Background Briefing program – The Man Without A Name – earlier this year, this patient has been prevented from telling his own story because of such anonymity provisions.

As he reported there, the ABC prepared a detailed application for permission to name the patient in that program and we attended a special hearing of that application before the Mental Health Review Tribunal in Sydney last September.

That application was approved, and Tom was able to name the patient in that program that aired in April this year.

However, were advised that such permission was limited to that single publication of the patient’s name. In other words, even though you can listen to a podcast of that program available here to discover his name, we would not be allowed to repeat it in our research outputs without further permission.

Earlier this year we went through that process, and I am pleased to advise that the Mental Health Review Tribunal has granted us permission to name the patient in our research publications and also in this blog.

I believe this is somewhat of a first – an academic research blog being granted permission to name a forensic patient – so journlaw.com is likely breaking new ground here as we do so.

The order states:

The means of publication are restricted to the following outlets for academic scholarship:

1. Academic journal articles, books and book chapters authored by Professor Morton and / or Professor Pearson.

2. Academic research blogs authored by Professor Morton and/or Professor Pearson.

It proceeds to require that any such publication must indicate our authorship, that the Tribunal can withdraw the consent at any time, and that any publication must carry the following notice:

“Notice: It is an offence under the Mental Health Act 2007 (NSW) section 162 to publish or broadcast the name of any person to whom a matter before the Mental Health Review Tribunal relates or who appears as a witness before the Tribunal in any proceedings or who is mentioned or otherwise involved in any proceedings under the Mental Health Act 2007 or the Mental Health (Forensic Provisions) Act 1990, unless consent has first been obtained from the Tribunal. The author has obtained such consent to publish Mr Dezfouli’s name.”

That should make it clear why we can name the patient but you cannot – at least without going through this whole process of application detailed in the Tribunal’s Practice Direction on s. 162, viewable here (pdf file).

So, after that extended preamble, I shall now reveal the patient’s name.

It is Mr Saeed Sayaf Dezfouli.

dezfouli

Forensic patient Saeed Dezfouli. Photo: Justice Action

In coming months we will be publishing our academic outputs on the research and journalistic processes involved in our pursuit for permission to identify Mr Dezfouli, kindly funded by a Rule of Law Institute of Australia grant.

Clearly, there are many competing rights and interests at stake in such a situation, including the patient’s right to privacy and effective treatment, their liberty, community safety, the reputations of their treatment team, and the welfare of victims and their families.

There are also the important legal principles of open justice, free expression, and the public’s right to know about the workings of the mental health and criminal justice systems. We will be exploring such issues in our academic publications.

Meanwhile, if you are interested in the Tribunal’s processes you might wish to read the Tribunal’s Official Report of an uncannily similar case (pdf file) it has published on its website using the name “Mr Ephram”.

The prisoner rights advocacy group Justice Action has also applied for, and obtained, permission to name Mr Dezfouli on its website and you can read more about his situation there.

Also, if you search for his name in a web browser you will find some other instances of him being named in the media, although it is unknown whether there were any legal consequences for the outlets which identified him.

(Tom Morton’s ABC Background Briefing program ‘The Man Without A Name’ – 20 April 2014)

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Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2014

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Justice Open and Shut – Suppression Orders and Open Justice – live blog #openshut

By MARK PEARSON

I’m at the Australian Centre for Independent Journalism’s ‘Justice Open and Shut’ Symposium at UTS Sydney today and will be writing this live blog of highlights from today’s speakers as the day unfolds. Drop in if you’re in the neighbourhood to Mary Anne House, Level 3, 645 Harris St, Ultimo, Sydney.

Testing the law in NSW with the ‘Keeper of Secrets’ Miiko Kumar

The open justice system incorporates open reasons for decisions as well, says media law barrister and academic Miiko Kumar.

Media law barrister Miiko Kumar

Media law barrister Miiko Kumar

Open justice ensures justice is imparted fairly and openly, the senior lecturer in law at the University of Sydney told the Justice Open and Shut conference at UTS.

Kumar said justice can be closed by excluding the public, restricting access to confidential information, non-publication orders, pseudonym orders, witnesses giving evidence via CCTV or from behind screens, and through the use of secret evidence.

Secret evidence is where a party tenders evidence that the other parties do not see, but that is rare.

Both the common law and key statutes give courts their power to suppress in NSW, including Court Suppression and Non-Publication Act 2010 and the Civil Procedure Act. Of course, other legislation exists for specific types of witnesses, such as the Children (Criminal Proceedings) Act 1987.

She said the common law test for the issue of a suppression order was a ‘test of necessity’, not a balancing test.

“It does not mean it is just convenient or to save someone embarrassment – that is not enough,” she said.

A wide section of people have standing to apply for a suppression order in NSW, and it can be made at any time during a trial.

The NSW legislation was tested in the recent Gina Rinehart case when she applied for a stay of proceedings along with a suppression order on the grounds that the confidentiality of the proceedings would be breached.

The court was open but there was a non-publication order over the proceedings.

[ Welker & Ors v. Rinehart [2011] NSWSC 1094 (Brereton J) 13/9/11 … Appeal: Rinehart v. Welker & Ors [2011] NSW CA (Tobias AJA) 31/10/11 … Appeal: Rinehart v. Welker [2011] NSWA 403 (Bathurst CJ and MColl JA; Young JA) 19/12/11].

Suppression order was lifted in that final appeal.

“The decision shows us that the court takes the administration of justice seriously,” she said.

“The media was the one who objected to the order. It is important for the media to know when the orders are made because they are usually the ones who will object.

“The parties are more concerned about their case so they are focussed on that.”

Kumar also explained public interest immunity where a court determines a claim by having the document that is the subject of a claim and considering it in closed session.

Victoria – the state of suppression

A study of non publication orders over a five year period in Victoria found that more than 1500 had been imposed across the state’s court system , according to the deputy director of the Centre for Media and Communications Law at the Melbourne Law School, Jason Bosland.

UTS professor Wendy Bacon and Melbourne Law School's Jason Bosland

UTS professorial fellow Wendy Bacon and Melbourne Law School’s Jason Bosland

Mr Bosland reported to the  ‘Justice Open and Shut’ Symposium at UTS Sydney on his team’s research on the breakdown of legislative or common law powers under which the various courts imposed suppression orders.

Some orders were made under the provisions of an act of parliament that did not even give the courts power to issue orders.

About 70 per cent of all orders made by Victorian courts did not contain an end date or any other temporal limitation to bring them to an end. The Magistrates Court made 398 orders without a specified end date over the period. Only 128 orders revoked 202 suppression orders over the period.

More than half of the suppression orders were ‘blanket orders’ – banning the whole of proceedings from publication – including about 80 per cent of non-publication orders in the state’s County Court.

“There were real problems with ambiguity and breadth,” Mr Bosland told the conference.

Many of the orders related to the revelation of the identity of a victim in circumstances where other legislation might already prohibit this publication.

Mr Bosland has also been researching the suppression of judicial reasons. He found that in Western Australia 47 judgments of the Supreme Court and 17 of the Court of Appeal had been withheld from publication, with nine across the Supreme, appeal and district courts in NSW, and about 20 in Victoria.

He further found a simple search of the terms “Judgment Suppressed” and “Judgment Restricted” into the database Austlii generated several pages of search results.

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The UK situation: Translucent justice? Digital and physical access to UK courts

The physical doors to UK courts are ‘open’, but virtual legal information is not, says UK researcher Judith Townend from City University London.

jude

Judith Townend, City University London

The notion of open justice seems to stall at the online level. Very little can be systematically documented about what is happening in the courts, she said.

For example, there is no systematic recording of data on the outcome of defamation claims.

“It’s a given that we do want to have open access to the courts but there are particular challenges that need to be considered,” she said.

She cited the recent development of a ‘right to be forgotten’ as an emerging issue standing in the way of open justice online, along with copyright, defamation, spent convictions and the tort of misuse of private information.

She explained the proliferation of so-called ‘super injunctions’ in the UK from 2009-2011.

“Particularly worrying were the sorts of injunction where the fact that they existed could not even be reported – and these were the so-called ‘super injunctions’, Townend told the  ‘Justice Open and Shut’ Symposium at UTS Sydney.

“It is not known how many existed, but it is thought there was a small number of the truly ‘super’ kind.”

Her research has been investigating the fate of a reporting restrictions database proposed in England and Wales in 2007. Despite a freedom of information request, she was unable to find out why it had not been implemented despite an effective simple operating in the Scottish jurisdiction.

The Law Commission had found a simple system similar to the Scottish online list of orders in force would cost a government department no more than three to four hours of labour per month. It recommended such a system should be introduced, also specifying the details of the order.

However, there was a “lack of momentum to carry the proposal forward”.

She said the proposal raised questions of who should be able to access such a database, what it would cost for users, and longer term issues over the liability for breach of the orders on such a list (particularly if an order was left off the list).

Townend drew parallels with proposals in Australia for a restricted access with full details of suppression orders.

“The focus is very much on the media … but there is a broader question we need to make about public access,” she said.

“What if you are an ordinary member of the public? Should courts be obliged to share details of restrictions with the wider public?”

There are strong arguments for better data collation, she said.

“Systematic recording of injunctions would allow media and academic scrutiny of orders in different courts – types, reasons and frequency,” Townend explained.

“There would be practical benefits for reporters to help avoid inadvertent contempt and it would help inform legal policy development around contempt.”

Keynote address ‘Open Courts: Who Guards the Guardians?’ – former justice Philip Cummins

Suppression orders should only be made as a last resort, not as a first resort, former Supreme Court justice and Victorian Law Reform Commission chair Philip Cummins told the  ‘Justice Open and Shut’ Symposium at UTS Sydney today.

cummins

Justice Philip Cummins

Quoting Kafka, Bentham and several higher court judgements, Justice Cummins said in his keynote address ‘Open Courts: Who Guards the Guardians?’ that it was the essence of the judicial process that it was public.

“The two functions of transparency of the justice system are that abuses may flourish undetected without it and it maintains the integrity of the courts. They are splendid principles often enunciated by the courts,” Justice Cummins said.

“The courts, rightly, have traditionally resisted pressure to function in private. Sometimes that pressure is from high motives, sometimes base… but it is ever present and must be resisted.

“It’s plain that courts cannot be open in every case. There are plainly justifications for courts to be closed.”

He cited sexual matters, terrorism trials and others involving safety of witnesses.

“Those categories are justifiable … in individual cases the orders are not justified even though the category has been made out,” he said.

“They need to be looked at on a case by case basis. The critical thing is that suppression orders should only be made as a last resort, not as a first resort.”

He labelled the path of reasoning required of judges under legislation when called upon to grant a suppression order was ‘erroneous reasoning’.

“It introduces a balancing of interests that should not be balanced – they are not equal,” he said.

He said instead there were key questions judges should consider:

  • orders shouldn’t be made if they were already covered by other legislation;
  • if the principle of sub judice applies. it would be erroneous if the principle of sub judice was replaced by suppression orders: “Sub judice needs to be protected by all of us. It would be a very profound error for suppression orders to take over the function of sub judice.”;
  • orders should not be made on therapeutic or prophylactic or prudential grounds instead of essential; and
  • there was a lack of understanding of the integrity of the jury system.

“We know that juries are robust. We know that they are living entities and that they see various things in the course of a trial,” he said.

“I have great confidence juries are robust and I think it is a profound mistake for judges to underestimate the robustness and integrity of juries.”

He said the gangland trials were over, but the question arises: “Has the culture changed?”

In some ways there was a judicial culture that worked against open justice. He said judges were usually supportive of open justice in principle – but sometimes until it came to the case at hand.

“If the culture of the courts is erroneous then the appeal system is not the solution. My tipstaff once said to me ‘whoever discovered water, it wasn’t a fish’,” he said.

But he rejected a suggestion by media lawyer Peter Bartlett that judges saw the media as a ‘nuisance’. Rather, Justice Cummins said, it was a question of priorities because their main goal was to ensure a fair trial.

“I do think that the judiciary is concerted in applying itself to these sorts of issues. In my 22 years on the bench not once was I let down by the media,” he said.

“Parliament has a significant role to play in advancing open justice,” he said.

On the question of court public information officers, he said they had been very valuable and had not proven to be ‘second guessing’ the court as some naysayers had predicted before the role was introduced two decades ago.

“I think a media officer can perform a very valuable function,” he said.

Justice Cummins agreed a ‘two speed’ system of coverage of major criminal trials had developed with the mainstream media more shackled because of its broader coverage.

“With a lot of the technology that a lot of us have spoken about it is morphing into a new set of issues we have to be astute to,” he said.

Media lawyer Peter Bartlett said that issue was not necessarily a new one.

“Traditionally we have found that print media has been sued more often than radio or television,” he said.

“I think there is a two speed [system developing] in that mainstream media is sued far more often. There is an increasing number of actions against online sites or blogs but their level of circulation is restricted so their level of damage is restricted.”

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The media and suppression orders in Victoria: reporters’ experiences

The increase in suppression orders during the gangland trials in Victoria had not diminished since the trials finished, Digital News Editor at the Herald-Sun Elissa Hunt told the  ‘Justice Open and Shut’ Symposium at UTS Sydney today.

fergusonShe was joined on a panel by Gina Rinehart biographer and Fairfax senior business writer Adele Ferguson (centre) who shared  her courtroom experiences on reporting under suppression – and senior journalist and documentary producer Sharon Davis (left).

“We do write in different ways as journalists now and have to think on our feet all the time and update for the web,” Hunt said.

“There’s not time to sit down with a lawyer and negotiate whether we can get away with this or that.

“You just had to know what you could or couldn’t say.

“Yesterday I did a dump of the suppression orders logged on our system this year and I counted 144. We’re on track for maybe 300 suppression orders this year.

“I’m not seeing a decrease in the number of orders.”

Ferguson said suppression orders take many forms. She cited the spent convictions provisions under the Crimes Act as an example of material that could not be published about a corporate regulation executive who had been in a partnership with a criminal history.

She mentioned the Gina Rinehart subpoena order against her demanding her sources last year where Steve Pennells from the West Australian was also served. Rinehart eventually backed down. She had two other subpoenas year as well.

Hunt explained the phenomenon of the ‘silent listing’ where courts would not reveal where a trial was being held, leaving reporters unable to engage lawyers to challenge the suppression.

When she queried such a silent listing she was told it was a security issue. She showed the symposium a form where people could apply to have their listings made silent under a practice direction from the Victorian Chief Magistrate.

Their outdated computer system meant courts could not use a pseudonym so the only way to keep their name off the list was the only mechanism to protect a witness.

Photos of victims that had been published many times were also suppressed by Victorian courts, Hunt said. In one case such a suppression was applied to a photo of a baby who was a high profile crime victim so juries were not prejudiced.

“I think it’s a worry we have so many judges who think the jury system is this fragile thing … our own judges don’t trust the system enough to let the jury do what they are meant to do,” she said.

Ferguson agreed with Davis  individuals are using the law more creatively to take advantage of the diminished resources of the major groups to challenge orders.

“It’s really time consuming and it’s costly and I think without doubt you are seeing more subpoenas issued and more defamation,” she said.

Hunt said: “The reality is that the only ones fighting a suppression order are the media. Unless they are doing it nobody else will be. We just can’t be there for all of them.”

She explained the complicated process involved in extracting material from the digital world once a suppression order or take down order has been issued.

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Media can’t afford to oppose as many suppression orders, says top media lawyer

Dwindling media resources have impacted on free expression because news organisations do not have the resources to oppose as many suppression orders as they did previously, Minter Ellison Lawyers partner Peter Bartlett told the  ‘Justice Open and Shut’ Symposium at UTS Sydney today.

Screen Shot 2014-06-04 at 10.14.48 AM

“It does not happen as much as it used to because the rivers of gold have evaporated,” he said.

Because the media is not there to oppose applications for suppression orders there was a risk more and more will be issued that go further than they should go.

Mr Bartlett is speaking on ‘Suppression Orders: A Fine Balance”, where he is examining topical case studies including The Rolf Harris trial, ‘Lawyer X’, Julian Assange and Oscar Pistorius.

Judges will say open justice is an important principle ‘but’ … and that ‘but’ is the problem, he said.

“The trouble is you get judges who quite rightly are focused on prepartion for the trial … that they do not spend enough time on whether an application for a suppression order should be granted and just go ahead and approve that order.

It is a difficult task for the judge in balancing the right to a fair trial and the right to free expression.

“There is no doubt that where there is a clash the right to a fair trial should take precedence.

“A proper instruction to a jury reduces the need for a suppression order in many cases.”

He commended recent Victorian legislation giving the media a right to appear to oppose suppression orders and making it clear there should be an end date to suppression orders. Previously it was difficult getting older suppression orders lifted because all the parties had to be found and brought to court. However, some recent suppression orders had been issued without the recommended end dates, he said.

He said there were at least four or five suppression orders issued each day in Victoria.

He was receiving many applications to take down historical articles because of their potential effect on a trial.

He noted the seeking of urgent injunctions by high profile wealthy individuals and linked this to the ‘reasonableness’ test for defamation defences which requires defendants to have sought a reply from the plaintiff prior to publication.

Three times in the past 18 months he had experienced injunctions being sought after an approach by a journalist to get a comment from a high profile individual about allegations against them.

This had sometimes led to long delays, including one example of a judge ordering a story be held from December until the next May so the matter could be tried.

He criticised the assumption of some judges that any media coverage would lead to an unfair trial.

He suggested the orders made against the Underbelly program in Victoria were futile because people found other means of access.

The Rolf Harris trial raised interesting issues where Australian newspapers could cover the trial which was suppressed in the UK but not put it on their websites. Fairfax newspapers included a warning to others not to publish the material online. The stories ran without a byline to avoid difficulties for the reporter sitting in the London court covering the trial.

Media law experts line up in Sydney for open justice seminar

It’s a stellar line-up of Australian media law experts with the welcome guest presentation from Judith Townend from the Centre for Law, Justice and Journalism at City University, London, on ‘Transluscent justice? Digital and physical access to UK courts’.

Keynote speaker is the Hon. Philip Cummins, former Supreme Court judge and Chair of the Victorian Law Reform Commission, Chair of the Victoria Law Foundation and Chair of the Protecting Victoria’s Vulnerable Children Inquiry.

Dr Tom Morton and I are speaking about progress with our research project on a forensic mental health patient we called ‘The Man Without A Name” because of restrictions on identifying people involved in NSW Mental Health Tribunal proceedings. Section 162 Mental Health Act (NSW) bans ID of anyone involved in either tribunal or forensic proceedings, with further requirements under the Mental Health (Forensic Provisions) Act. A breach can incur a fine of $5500 or a 12 month jail term. See my earlier blog on this and Tom’s Background Briefing piece by the same name for Radio National.

———–

Conference program:

Justice Open and Shut: Suppression orders and open justice in Australia and the UK

“There is one hell of a fight going on in Australia to preserve our free press. We are increasingly seeing the rich and powerful resort to litigation to pursue journalists’ sources or lodge defamation writs purely to stop the publication of stories and scare off the rest of the media.”

Nick McKenzie, Fairfax Media, 2014 Press Freedom Australia Address

The increasing use of suppression orders undermines fair and accurate reporting of the courts and the fundamental principle of open justice.  This workshop will explore the operations and impact of suppression orders on reporting in Australia and the UK.

A workshop for journalists, lawyers, academics and anyone with an interest in open justice, the media and freedom of the press.

The  conference schedule is now available.

Keynote address: ‘Open Courts: Who Guards the Guardians?’

Keynote speaker: Hon. Philip Cummins – former Supreme court judge and Chair of the Victorian Law Reform Commission, Chair of the Victoria Law Foundation and Chair of the Protecting Victoria’s Vulnerable Children Inquiry.

Other speakers:

  • Peter Bartlett: Partner Minter Ellison, Chair of the Advisory Board at the Centre for Advanced Journalism ast Melbourne University. Author of the law precis for MEAA State of Pres Freedom in Australia. Bartlett has represented Fairfax media and others in relation to suppression orders. He will speak on the use of suppression orders and its impact on the media and journalism, the operation of take down laws and trends observed since the introduction of the new Acts.
  • Miiko Kumar: Barrister, Jack Shand Chambers and Senior Lecturer, Faculty of Law, University of Sydney. Kumar appears regularly in applications for suppression orders on behalf of government agencies. She will provide an overview of the law relating to different forms of suppression orders, as well as recent cases involving Gina Rinehart and her attempted use of suppression orders in relation to court proceedings.
  • Judith Townend: Centre for Law, Justice and Journalism, City University, London. Townend will speak on ‘Transluscent justice? Digital and physical access to UK courts’.
  • Academics and journalists Mark Pearson (Griffith) and Tom Morton (University of Technology, Sydney): Open justice, investigative journalism and forensic patients.
  • Elissa Hunt: has been a court and legal affairs reporter with the Herald-Sun in Victoria for more than 13 years.  Her work has been recognized through numerous awards from the Victorian Law Foundation, including the 2014 Law Foundation’s Reporter of the year on Legal Issues. Elissa has recently been appointed as the Digital News Editor.
  • Adele Ferguson: a multi-award winning senior business writer and columnist for the Age and the Sydney Morning Herald and author of the best selling unauthorised biography Gina Rinehart: The Untold Story of the Richest Woman in the World. Prior to joining the Age and the SMH, Adele was a senior commentator with the Australian. She has also worked at BRW Magazine as deputy editor and chief business commentator, leading many major investigations into the corporate sector.
  • Jason Bosland: Deputy Director of the Centre for Media and Communications Law at Melbourne Law School where he teaches communications and intellectual property law. He holds degrees from Melbourne and the London School of Economics. His primary research interests lie in media law, including defamation and privacy, open justice and the media, contempt of court and freedom of speech.

This workshop is hosted by the Rule of Law Institute of Australia and the Australian Centre for Independent Journalism and is supported by the Centre for Cosmopolitan Civil Societies, University of Technology, Sydney.

Media Enquiries:

Tom Morton tom.morton@uts.edu.au

Kate Burns kate@ruleoflaw.org.au

When

4 June 2014
10:00 am – 4:30 pm

Where

Venue: Mary Anne House, Level 3, 645 Harris St, Ultimo, Sydney.

—————

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2014

Leave a comment

Filed under blogging, Buddhism, citizen journalism, Eightfold Path, free expression, media ethics, mental health, social media, Uncategorized

Justice Open and Shut – and the man without a name revisited

By MARK PEARSON

I’m looking forward to presenting with colleague Associate Professor Tom Morton from UTS (pictured) at the Australian Centre for Independent Journalism’s ‘Justice Open and Shut’ Symposium this week.

MORTON

Dr Tom Morton

Below is the full program for the conference from the ACIJ website.

It’s a stellar line-up of Australian media law experts with the welcome guest presentation from Judith Townend from the Centre for Law, Justice and Journalism at City University, London, on ‘Transluscent justice? Digital and physical access to UK courts’.

Keynote speaker is the Hon. Philip Cummins, former Supreme Court judge and Chair of the Victorian Law Reform Commission, Chair of the Victoria Law Foundation and Chair of the Protecting Victoria’s Vulnerable Children Inquiry.

Dr Morton and I are speaking about progress with our research project on a forensic mental health patient we called ‘The Man Without A Name” because of restrictions on identifying people involved in NSW Mental Health Tribunal proceedings. Section 162 Mental Health Act (NSW) bans ID of anyone involved in either tribunal or forensic proceedings, with further requirements under the Mental Health (Forensic Provisions) Act. A breach can incur a fine of $5500 or a 12 month jail term.

See my earlier blog on this and Tom’s Background Briefing piece by the same name for Radio National.

We have won permission to name him in our academic writing – including on this blog – but I will hold back on that for today so I do not spoil the presentation for those attending on Wednesday.

I have previously compared the complex array of mental health reporting restrictions in Australia and New Zealand. (See here.)

In 2012 I compared three cases in WA, Victoria and the UK involving the identification of mental health patients. The case of Patient A has strong parallels with the Albert Lazlo Haines [pdf] case in the UK where a patient won an appeal to be named in reportage of his review proceedings.

This Australian case adds to that body of literature and is interesting from that media law perspective. It also interests us as an ethical case study, and we will be using it as the focus for an exploration of the application of the principles of ‘mindful journalism’ I have described previously.

———–

 

Conference program:

Justice Open and Shut: Suppression orders and open justice in Australia and the UK

“There is one hell of a fight going on in Australia to preserve our free press. We are increasingly seeing the rich and powerful resort to litigation to pursue journalists’ sources or lodge defamation writs purely to stop the publication of stories and scare off the rest of the media.”

Nick McKenzie, Fairfax Media, 2014 Press Freedom Australia Address

The increasing use of suppression orders undermines fair and accurate reporting of the courts and the fundamental principle of open justice.  This workshop will explore the operations and impact of suppression orders on reporting in Australia and the UK.

A workshop for journalists, lawyers, academics and anyone with an interest in open justice, the media and freedom of the press.

The  conference schedule is now available.

Keynote address: ‘Open Courts: Who Guards the Guardians?’

Keynote speaker: Hon. Philip Cummins – former Supreme court judge and Chair of the Victorian Law Reform Commission, Chair of the Victoria Law Foundation and Chair of the Protecting Victoria’s Vulnerable Children Inquiry.

Other speakers:

  • Peter Bartlett: Partner Minter Ellison, Chair of the Advisory Board at the Centre for Advanced Journalism ast Melbourne University. Author of the law precis for MEAA State of Pres Freedom in Australia. Bartlett has represented Fairfax media and others in relation to suppression orders. He will speak on the use of suppression orders and its impact on the media and journalism, the operation of take down laws and trends observed since the introduction of the new Acts.
  • Miiko Kumar: Barrister, Jack Shand Chambers and Senior Lecturer, Faculty of Law, University of Sydney. Kumar appears regularly in applications for suppression orders on behalf of government agencies. She will provide an overview of the law relating to different forms of suppression orders, as well as recent cases involving Gina Rinehart and her attempted use of suppression orders in relation to court proceedings.
  • Judith Townend: Centre for Law, Justice and Journalism, City University, London. Townend will speak on ‘Transluscent justice? Digital and physical access to UK courts’.
  • Academics and journalists Mark Pearson (Griffith) and Tom Morton (University of Technology, Sydney): Open justice, investigative journalism and forensic patients.
  • Elissa Hunt: has been a court and legal affairs reporter with the Herald-Sun in Victoria for more than 13 years.  Her work has been recognized through numerous awards from the Victorian Law Foundation, including the 2014 Law Foundation’s Reporter of the year on Legal Issues. Elissa has recently been appointed as the Digital News Editor.
  • Adele Ferguson: a multi-award winning senior business writer and columnist for the Age and the Sydney Morning Herald and author of the best selling unauthorised biography Gina Rinehart: The Untold Story of the Richest Woman in the World. Prior to joining the Age and the SMH, Adele was a senior commentator with the Australian. She has also worked at BRW Magazine as deputy editor and chief business commentator, leading many major investigations into the corporate sector.
  • Jason Bosland: Deputy Director of the Centre for Media and Communications Law at Melbourne Law School where he teaches communications and intellectual property law. He holds degrees from Melbourne and the London School of Economics. His primary research interests lie in media law, including defamation and privacy, open justice and the media, contempt of court and freedom of speech.

This workshop is hosted by the Rule of Law Institute of Australia and the Australian Centre for Independent Journalism and is supported by the Centre for Cosmopolitan Civil Societies, University of Technology, Sydney.

Media Enquiries:

Tom Morton tom.morton@uts.edu.au

Kate Burns kate@ruleoflaw.org.au

When

4 June 2014
10:00 am – 4:30 pm

Where

Venue: Mary Anne House, Level 3, 645 Harris St, Ultimo, Sydney.

—————

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2014

Leave a comment

Filed under blogging, Buddhism, citizen journalism, Eightfold Path, free expression, media ethics, mental health, social media, Uncategorized