Annex A: Media Protocol: Working together to support open justice

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

[Date]

Introduction

1. This Protocol has been created in consultation with the key agencies involved, namely the NPCC, the CoP, the CPS and senior representatives from the media. This Protocol updates and replaces the 2005 protocol, ‘Publicity and the Criminal Justice System’.
2. Our overriding objective is unchanged, namely to provide an open and accountable prosecution process, 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 our courts.

General principles

3. This protocol applies to requests for prosecution information or material made in good faith by a member of the media to a police force or the CPS for the purpose of the contemporaneous reporting of criminal proceedings held in public.
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. 
5. Effective cooperation between all parties is key to meeting the shared goal of open justice. Police forces and the CPS appreciate the need for speedy decisions about releasing material and will work collaboratively to meet requests in a timely manner whenever possible. The media will assist with this by making targeted and proportionate requests for material.
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 and Articles 6, 8 and 10 of the European Convention on Human Rights as incorporated into law by the Human Rights Act 1998. 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 generally 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 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, for example where the release of material could prejudice other proceedings;
    • the interests of victims and their families, for example where the release of material could cause them disproportionate distress;
    • the interests of defendants, for example where there could be an impact on the fairness of the trial; and,
    • the interests of witnesses, for example where the release of material could expose them to the risk of harm.
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. Accordingly, the interests and where appropriate views of victims, witnesses and other people directly affected by a case, such as family members, will be considered when making any decision to provide prosecution material to the media. Particularly careful consideration will be given to cases involving children or vulnerable adults.
12. Further to the above general principles: 
    1. Prosecution material which should normally be released to the media where it has been relied upon by the prosecution in open court includes: 
          i. Maps and other diagrams;
          ii. Images / video of the defendant(s) (including custody photographs); 
          iii. Images / video showing scenes of crime as recorded by police after the event; 
          iv. Images / video of items exhibited in court (e.g. weapons, clothing, drug hauls or stolen goods); 
          v. Sections of transcripts of interviews/statements read out in court; 
          vi. Images / video showing reconstructions of the crime; and,
          vii. Social media content, such as relevant messages from the defendant, or posts which illustrate the offence.
    2. 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: 
          i. Images / video showing the victim(s); 
          ii. Video and audio recordings of police interviews with defendants, victims and witnesses; 
          iii. Statements of victims and witnesses; and,
          iv. 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, to ensure that only material informing the decision of the court is published, material released to the media must reflect the prosecution case and must 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 should 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, 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

To assist police and CPS communications teams when planning to release prosecution material to the media, and to clarify for the media and wider public how this protocol will be applied, a supporting Media Protocol User Guide is available here.