Kathy Sheridan: Court reporters face ongoing battle for court documents

‘Documents already opened in public court are public documents, yet are treated like the third secret of Fatima’

‘We can only hope that when it finally materialises, it gravitates towards the generous side and will include the right of access, for example, to lawyers’ briefs (available online in New York).’ Photograph: Getty Images

‘We can only hope that when it finally materialises, it gravitates towards the generous side and will include the right of access, for example, to lawyers’ briefs (available online in New York).’ Photograph: Getty Images

 

Recent reports of high profile criminal cases may suggest otherwise, but services for crime victims have come a long way in a decade. Family members in a homicide case, for example, are assigned specific seating areas in the courtroom and insofar as the limited space allows are kept apart from the defendant’s connections. Accommodation in the five-year-old Criminal Courts of Justice, includes secure, private, comfortable suites, with kitchen and restrooms, for the use of family members during waiting times. Victims also have the support of Victim Support volunteers in court and of Garda liaison officers.

It may be of limited comfort to the families, given the unfolding horror, but it is only fair to give credit to the Court Services for these improvements, which are also being implemented in a smaller way, in courthouses around the country.

The one group for whom conditions have not improved is court reporters. This is important since, like it or not, they are the eyes and ears of the public – the public for whose benefit these proceedings take place. The Courts Service, again, does its best by assigning dedicated seats and even issuing tickets for the big trials to ensure fair representation across media titles and channels. But any such respect or consideration went entirely awol in the design of the CCJ building.

Such was the thought and care given to the press, if I remember rightly, the intended sweetshop was belatedly converted into a tiny, airless press room. In an era when most journalists use laptops in court, a single socket (for the vacuum cleaner, presumably) is the sole power supply at the public end of the courtrooms.

Trivia

All these are mere trivia compared to the most frustrating aspect of court reporting: the ongoing battle over access to public court documents. These are documents such as affidavits, already opened in public court and therefore public documents, yet are treated like the third secret of Fatima. Yes, resourceful journalists do get their hands on them in many cases, but only by persuading someone connected with the case to hand them over discreetly.

So, if you as a member of the public decide you want to see justice being done in the High Court, you will may well discover that two barristers have already exchanged civil pleadings and delivered the book to the judge, before arriving in court and launching into complex arguments , leaving you – and the media – to guess at the Byzantine events that led to the case. In effect, it is a secret hearing.

Think of a couple of highly complex civil cases that have come before the courts in recent years and imagine the stress on court reporters, required to take a lightning fast and rigorously accurate note of many hours of proceedings, while meeting a series of tight deadlines.

Some selected documents are available – for a fee and on foot of a written application. That the public should be obliged to pay to see public court documents amounts to one kind of prohibition. The obligation to apply in writing amounts to another; it means that documents are not available in real time for journalists reporting on an ongoing case. Those who dismiss the media as an inconvenience or question motivation may view this as proper order, but the Constitution inconveniently, requires that justice “shall be administered in public”. Clearly, such prohibitions are inimical to the very principle such critics would doubtless claim to be their first concern: fair and accurate reporting, not to mention openness and accessibility.

Restrictions

Openness and accessibility for court documents are not some untried utopia. The Canadian attorney general’s website, for example, states that subject to certain obvious restrictions, court staff must “facilitate access to court files and documents as quickly and efficiently as possible” Some are even available by phone.

The odd thing is, everyone already knows this. In an interview with Kieron Wood – who wrote the definitive critique on the subject for the Sunday Business Post in 2013 – a former president of the High Court, Mr Justice Joseph Finnegan, said that any practice not originating in the Rules of the Superior Courts – such as “the practice of confining access to Central Office files to parties and their representatives” – amounted to a prohibition.

Mr Justice Gerard Hogan spelled it out in a 2012 judgment: “. . . Any system of secret court hearings could pave the way for judicial arrogance, overbearing judicial conduct and abuse. In these circumstances, the public are entitled to have access to documents which were accordingly opened without restriction in open court. This is simply part and parcel of the open administration of justice which the Constitution – subject to exceptions – enjoins.”

There is hope. The Hogan judgment found its way to the Court of Appeal and appears to have been settled recently, albeit with a three-month stay on the order. We can only hope that when it finally materialises, it gravitates towards the generous side and will include the right of access, for example, to lawyers’ briefs (available online in New York).

We may assume the overstretched Courts Service is using the stay to make a trenchant case for resources. Twitter: @kathysheridanIT

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