Media Protocol: Working together to support open justice

• Introduction
• General principles
• Media access to prosecution materials
• Appealing decisions
• Further guidance

Agreed by: National Police Chiefs Council (NPCC), College of Policing (CoP), the Crown Prosecution Service (CPS) and representatives of the Crime Reporters Association, News Media Association, Media Lawyers Association, Society of Editors

Introduction

1. This Protocol has been created in consultation with the key agencies involved, namely the Crown Prosecution Service, National Police Chiefs’ Council, the College of Policing, and senior representatives from the media. This Protocol updates and replaces the previous protocol, ‘Publicity and the Criminal Justice System’.

2. Our overriding objective is unchanged, namely to ensure greater openness in the reporting of criminal proceedings by ensuring the media have access to all relevant material wherever possible, and at the earliest appropriate opportunity. The principle of open justice is an essential element of the rule of law in England and Wales; it is an important feature of our criminal justice system that it is generally administered in public and is open to public scrutiny. Access to information enables the media to play a vital role in furthering the open justice principle by informing the public about what is happening in criminal courts.

General principles

3. The central purpose of this protocol is to manage requests for prosecution information or material from the media to a police force or the CPS for the purpose of reporting criminal proceedings held in open court – including youth courts, as soon as is practicable after publication is permitted.

4. It is not intended to cover other media requests, such as non-contemporaneous requests for material for documentaries, or non-media requests. Such requests will be considered separately by police forces and the CPS on a case-by-case basis.

5. Effective cooperation between all parties is key to meeting the shared goal of open justice. Police forces and the CPS will work collaboratively to expedite the media’s access to information about criminal proceedings. In recognition of the practicalities of providing material, the media will assist by making targeted requests for information and doing so, wherever possible, when the trial is ongoing and the material is still readily available.

6. This protocol is subject to all relevant law, notably the Data Protection Act 2018, the UK General Data Protection Regulation, the Freedom of Information Act 2000, Articles 6, 8 and 10 of the European Convention on Human Rights as incorporated into law by the Human Rights Act 1998, and the Criminal Procedure Rules. However, we shall strive to interpret these provisions as positively as possible in accordance with the overriding objective stated above.

7. It remains the responsibility of the media to ensure that they comply with all their legal obligations, including reporting restrictions, in respect of material supplied under this protocol.

Media Access to Prosecution Materials

8. While each decision will be made considering the individual circumstances of the case, the following guidelines set out the general approach that should be taken.

9. In accordance with the principle of open justice, material relied on by the prosecution in open court should normally be provided to the media if requested. This includes material read out, played or displayed in open court and material placed before a judge and/or jury and referred to in open court.

10. However, material may be withheld, or alternatively the release of material may be delayed, where there is a sufficiently strong legitimate interest in doing so. This reflects the need to balance the principle of open justice against other interests and in doing so to assess whether they are sufficiently strong to justify a departure from the principle of open justice. Non-exhaustive examples of such legitimate interests include:

• the interests of justice;
• the interests of victims, witnesses and their families;
• the interests of defendants;
• the interests of national security.

11. Police and prosecutors have a duty to treat victims and witnesses with respect and sensitivity, taking all practicable steps to help them through the often-difficult experience of becoming involved in the criminal justice system. In the interests of the administration of justice, the views of victims, witnesses and other people directly affected by a case, such as family members, and especially children and vulnerable adults, will be given particular consideration when making any decision to reveal or to provide prosecution material to the media. Inevitably this will lead to decisions being made in the context of the individual circumstances of each case.

12. Further to the above general principles:

a. Prosecution material which should normally be released to the media where it has been relied upon by the prosecution in open court includes:

• Maps and other diagrams;
• Images/video of the defendant(s) (including custody photographs);
• Images/video showing scenes of crime as recorded by police after the event;
• Images/video of items exhibited in court (e.g. weapons, clothing, drug hauls or stolen goods);
• Sections of transcripts of interviews/statements read out in court;
• Images/video showing reconstructions of the crime; and,
• Social media content, such as relevant messages from the defendant, or posts which illustrate the offence.

b. Prosecution material which may be released after consideration by the CPS in consultation with the police and relevant victims, witnesses and family members where it has been relied upon by the prosecution in open court includes:

• Images/video showing the victim(s);
• Video and audio recordings of police interviews with defendants, victims and witnesses;
• Statements of victims and witnesses; and,
• Audio of 999 calls.

13. Where a guilty plea is accepted and the case does not proceed to trial, then all the foregoing principles apply. However, the individual circumstances of the case will be considered when determining what may be released to the media to ensure that only material informing the decision of the court is published. This must reflect the prosecution case and should have been read out, shown in open court or placed before the sentencing judge.

14. If it is decided that it is not appropriate to provide prosecution material requested by the media under this protocol, the CPS or police must explain the reasons for this.

Appealing decisions

15. Any dispute arising between the media and the police forces or CPS concerning the disclosure of material or the principles or workings of this protocol will be referred for review to the CPS Director of Communications. Consideration will be given to all factors including the stated aims of this protocol to achieve greater openness in reporting criminal proceedings. The media and the criminal justice agencies will have the opportunity to make appropriate representations before a final decision is taken regarding disclosure of material and any applicable terms.

16. While requests for prosecution material should generally be sought under this protocol in the first instance, in certain circumstances the media may also make an application to the court for such information or material. Where decisions may be finely balanced, the CPS may also seek guidance from the judge.

Further guidance

The CPS has developed a User Guide to help police and CPS communications teams make decisions about the release of prosecution material to the media under the protocol in a fair, consistent and transparent way. This guide is also designed to clarify for the media and public how the protocol will be applied.