Annex B: Media Protocol User Guide
- Introduction
- The open justice principle
- What does the protocol cover
- Making decisions about the release of material under the protocol
- Issuing material
- Further information
Introduction
The principle of open justice underpins 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. The media plays a vital role in informing the public about what is happening in our courts, and their access to information to fulfil that role is supported by the law.
There is clear public interest in criminal proceedings. The joint protocol agreed by the CPS, police and the media cements our shared commitment to open justice. It sets out how requests for material which has been used in open court as part of the prosecution case will be dealt with to support contemporaneous reporting of criminal trials. It seeks to strike a balance between the public interest reflected in the principle of open justice and the legitimate interests of others, such as victims of crime and members of their families.
This guide is intended to assist police and CPS communications teams when planning to release prosecution material to the media, or when dealing with requests from journalists. It is also designed to give background to prosecutors and police officers who may be involved in decisions about releasing material, and to clarify for the media and wider public how we will apply the protocol. It reflects changes to relevant laws since the protocol was first agreed in 2005 and answers frequently asked questions.
The open justice primciple
The principle of open justice includes the need to have regard to the importance of dealing with criminal cases in public and of allowing public hearings to be reported to the public. [1] It has also been described as having the dual purpose of “enabling public scrutiny of the way in which courts decide cases – to hold the judges to account for the decisions they make and to enable the public to have confidence that they are doing their job properly” and “to enable the public to understand how the justice system works and why decisions are taken. For this they must be able to understand the issues and the evidence adduced in support of the parties’ cases.” [2]
The joint media protocol was first agreed in 2005. It set out the principle that the media should have access to all relevant material wherever possible and at the earliest opportunity. This remains the case and has been reinforced by subsequent case law.
The leading legal authority is R (Guardian News and Media Ltd) v Westminster Magistrates’ Court [2012] EWCA Civ 420 [3](‘Guardian News and Media’) in which the Court of Appeal stated (at para 85):
“In a case where documents have been placed before a judge and referred to in the course of proceedings, in my judgment the default position should be that access should be permitted on the open justice principle; and where access is sought for a proper journalistic purpose, the case for allowing it will be particularly strong.”
The judgment also made clear that access to material is not always appropriate, and that competing rights may need to be considered:
“However, there may be countervailing reasons. […] I do not think that it is sensible or practical to look for a standard formula for determining how strong the grounds of opposition need to be in order to outweigh the merits of the application. The court has to carry out a proportionality exercise which will be fact-specific. Central to the court’s evaluation will be the purpose of the open justice principle, the potential value of the material in advancing that purpose and, conversely, any risk of harm which access to the documents may cause to the legitimate interests of others."
While this judgment relates specifically to the release of information by the courts, and which had not been read out in open court, the principle applies equally to the release by the police and CPS of information used in open court.
What does the protocol cover?
The protocol applies to requests for prosecution information or material 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. Reporting may be for broadcast, print or online outlets.
There is no comprehensive definition of what counts as contemporaneous, although one proposal is: “As nearly at the same time as the proceedings as is reasonably possible having regard to the opportunities for preparation of the report and the time of going to press or making the broadcast.” [4] The question of whether a report is contemporaneous is ultimately one for the media outlet in question, as it affects the availability of defences to proceedings for contempt of court or defamation proceedings. In any event, the protocol will apply to requests for material relating to proceedings that are ongoing or that concluded up to one month prior to the request (ignoring any appeal that has been or may be made).
The protocol only relates to material relied on by the prosecution in open court during a trial or sentencing hearing. If only a section of material has been used, only that part which has been shown in court should be released to media. This will need to be checked by lawyers ahead of release. It could prejudice an ongoing trial if material is published which the jury has not seen.
Accordingly, the protocol does not apply to:
- requests for material made more than one month after the conclusion of proceedings;
- non-media requests;
- requests for prosecution material not relied on in open court (for example, information that is withheld from the public by order of the court);
- requests for material which was not part of the prosecution case;
- requests for material prior to trial.
The fact that material is not covered by the protocol does not mean that it cannot be provided to the media; rather, requests for such material will be separately considered on a case-by-case basis. Retention policies mean requests for historic material may not be possible to service.
Making decisions about the release of material under the protocol
Who counts as media?
The protocol applies to accredited members of the media who hold a valid Press Card issued by the UK Press Card Authority [5]. The Press Card is formally recognised by all police forces in the UK and by the Ministry of Justice. Press officers may request to see a valid Press Card before providing material.
It also includes those with a letter from the editor of an IPSO regulated title.
Requests from individuals who do not hold a Press Card may be considered on a case-by-case basis. It is important to consider the credentials of the person or organisation making the request and whether they are bound by clear codes of practice or have access to legal advice on how they should cover criminal cases.
When might requests be refused?
The legitimate interests of others
The presumption in favour of granting access does not mean that the media are entitled to all material shown in the course of criminal proceedings. The Guardian News judgement set out that there may be “countervailing reasons” which outweigh the interests of open justice (see above, under ‘The General Principle and the Legal Basis for the Protocol’).
Decisions must be taken on a case-by-case basis, and disclosure may be of the whole or part of the material. Where appropriate material may be redacted.
Reasons for refusal of access may include, amongst others:
- National security.
- Public interest immunity.
- Where the publication of material could cause prejudice to current or future criminal proceedings. (This includes instances where material is to be relied upon by either the prosecution or defence during their examination of a witness at a later stage during the trial, or as part of our disclosure duties in any future potential prosecution).
- Where the publication of material could cause disproportionate distress to a victim or witness, even if they have already been seen in court.
- Where the publication of material could have a disproportionate impact on a person’s privacy; this could apply to the publication of certain images or recordings, or to the publication of personal information which is sensitive.
- Where the publication of material could give rise to a risk of harm.
- The interests of victims, witnesses and other people directly affected by a case, such as family members, should be considered when making any decision to provide prosecution material to the media. It may be appropriate to engage with them in certain cases (see below, under ‘Consideration of Victims and Witnesses’).
Consideration of victims and witnesses
The rights of the victim, including the family of any deceased, are widely recognised as an important part of any criminal proceedings. The police and CPS have an important role in making sure victims receive appropriate support and information throughout their experience of the criminal justice process, as set out in the Victims Code. However, although any views of victims, victims’ families and witnesses should be considered, the decision whether to release material rests with the police and the CPS. Where there is dispute, the CPS Director of Communications will make a final decision.
What information should be given to victims and witnesses?
It is important that victims, witnesses and families are aware that prosecution material, including photographs and footage, may be provided to the media and used in their reports.
In line with the principle of open justice, the presumption is that material which has been shown in open court will be supplied to the media on request unless there is an exceptional reason not to do so. This general principle should be explained by police to victims, witnesses and families in simple and accessible language.
Families of the deceased should also be told about the likely media reporting in advance of court proceedings and offered appropriate media handling support by the police force comms team. This should involve factual, neutral advice about the benefits and challenges of different approaches to media engagement.
Will we engage with a victim, victim’s family or witness?
Careful consideration should be given to instances when the release of material may impact on the legitimate interests of the victim, family or witness. Examples include:
- When harm to the victim is being shown;
- The victim is shown in a vulnerable or embarrassing position;
- The safety of the victim or witness could be compromised; or
- The material is likely to cause considerable distress.
What if the victim / family do not want the material to be released?
If victims, witnesses or families have strong concerns about the release of material which has been used in court, these concerns should be relayed to the force and CPS communications teams.
Decisions about the release of material following such concerns will be taken based on the individual circumstances of each case. The general principle of open justice must be carefully balanced against legitimate interests such as the right of the victim or a deceased’s family to respect for their private life.
The vulnerability and safety of victims, witness and the family of a deceased should be important factors in decision-making. Examples of where this will be a consideration include footage that shows acts of violence or explicit photographs. In addition, the police may have an operational reason to withhold prosecution material, for example if its release could lead to the identification of a witness and put them at risk. However, investigators and prosecutors must not take moral or editorial decisions about what they consider the press require for the purposes of reporting. Consideration should be given to whether material can be appropriately redacted to address concerns of victims or their families.
If, following consideration of the views of a victim, witness or family, a decision is taken not to release material, press officers should be able to explain the reason to the media.
Even where the police and CPS refuse to release material, the media have the right to apply to the court to order the release of material. This should also be communicated to victims, witnesses and family members.
Who is responsible for discussing the issue with a victim, victim’s family or witness?
The police are responsible for liaising with the victim or witness.
Specific categories of material
The protocol sets out a non-exhaustive list of the types of material most commonly requested. The protocol states:
- 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.
- 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.
Further guidance on particular categories of material is set out below.
Footage / images where people may be identified
Different considerations apply depending on what the footage or images show, and who is included. The following general guidance applies, subject to the consideration of other legal or victim issues:
- Footage which shows individuals who are granted anonymity: There are specific circumstances where victims, witnesses or defendants are automatically granted anonymity. These include victims of sexual offences and youth defendants or youth witnesses and complainants. Press officers must not share any footage or image which is capable of leading to the identity of individuals who have been granted anonymity. If the decision is taken that the footage should be shared, it must be edited first (eg. faces blurred) to ensure that the individuals cannot be identified. It is not acceptable to share unedited material even on condition that the media outlet will carry out edits prior to publication.
- If the footage / image shows an incident in a public place eg. CCTV footage which shows a fight in the street: There is no legal requirement to blur the faces of passers-by who are not involved in the incident. Depending on the specific incident shown, you may make a judgement that it is reasonable to request that media outlets blur faces prior to publication or broadcast and many publications will do this in line with their own editorial guidelines.
- If the footage / images are taken place in a private place eg. police body worn video taken inside a home: This is more likely to be a breach of privacy and therefore no material should be released in which individuals other than the defendant may be identified. Material may be released after being suitably blurred. The prosecution team can advise whether the material was redacted before being shown in court.
Prosecution documents read out in court
A document that has been read out in full should generally be provided unless legitimate interests such as those set out above mean that it should be withheld or redacted. Documents which may be read out in full include opening notes, agreed witness statements and formal admissions. Note that where a witness gives live evidence, their witness statement will generally not be part of the evidence relied on in open court, and so should not be provided.
Where only part of a document has been read out in court, only that part should be provided to the press and the remainder should be redacted. This will need to be confirmed with lawyers prior to release.
Where all or part of an ABE (Achieving Best Evidence) interview or pre-recorded cross-examination or re-examination is admitted as the evidence of a prosecution witness, that recording will be prosecution evidence. However, these measures will be used where the witness is in a vulnerable category and/or due to their fear or distress about giving evidence. Accordingly, the legitimate interests of the witness will generally mean that the recording should not be provided.
The CPS may release the prosecution opening note in advance to assist accurate reporting in court. Please note the decision for timings of the release of this rests with counsel, however, CPS press office will represent media’s wishes to have this as early as possible.
This must always be clearly marked with the following disclaimer:
“It is provided strictly on the following terms:
- It is for the use only of the person who has requested it and is not for onward transmission.
- It should only be used to aid factual reporting of the opening of the prosecution case, as and when it is presented in court.
- It is provided on a ‘check against delivery’ basis. Therefore, each piece of information contained in the document is separately embargoed – it is not to be used in any way until it is given in open court.
- You should check with the court as to whether any reporting restrictions are in place in this case.”
Hard copies of the opening note may be handed out to reporters in court. The CPS may also agree to share electronically to accredited media on the undertaking that it is to assist their understanding of the prosecution case, and not for quoting if the reporter is not in court to verify that it has been delivered.
Prosecution documents not read out in court
There may be good reasons not to provide all or part of some prosecution documents which are not read aloud in court because of their confidential nature, such as some medical reports or victim personal statements. In these cases, the legitimate interests of others in maintaining confidentiality are likely to outweigh the interests of open justice; this may apply even if the court has made reference to the document or quoted from it in open court. [6]
However, documents relied on by the prosecution may sometimes be provided to the media even though they have not been read out in court. For example, this may apply to prosecution skeleton arguments or written submissions. These may be provided to media for the purposes of writing news background pieces but on the understanding they should not be used verbatim.
The media are expected to be aware of the limitations on the use of such material, for example that legal arguments held in the absence of the jury must not be reported before the conclusion of the trial. [7]
Because of the complications arising in such cases, those making decisions as to whether such material should be released should consult with the prosecutor.
Material shown during the prosecution opening
Material shown during the prosecution opening has not been formally adduced into evidence. However, unless there are reporting restrictions, the media may report what has been said and shown during the opening. Accordingly, material shown to the jury during the opening may be provided to assist with fair and accurate reporting. However, this is subject the usual exceptions discussed above, and any decision to issue material at this stage should be taken following discussion with the prosecutor in the case to avoid the risk of prejudice to the trial.
Photographs of injuries
Subject to the victim considerations set out above, these may be released.
Police custody photographs
Unless relied on in open court by the prosecution, requests for police custody photographs should be referred to the police.
Guidance for police is set out in the College of Policing Authorised Professional Practice on Media Relations [8]:
“Information at the end of criminal proceedings
Where appropriate and where there is a legitimate policing purpose, forces can proactively release information about court outcomes as a way of improving public confidence in the criminal justice system.
Specifically in respect of images, the police, as the legal copyright owner, are responsible for releasing an offender’s custody photograph. The image may be released upon a guilty verdict unless there is a court order or legitimate policing purpose preventing their identification. Images may be released as soon as possible after the verdict to allow the media to publish them contemporaneously, ie, in their next available edition or broadcast. The image can be released again upon sentence if necessary.”
Defence material
The CPS/the police have no obligation to release defence material.
The media should contact the defence if they would like access to defence material.
FAQs when considering requests
How does the protocol apply to sentencing hearings where the defendant pleaded guilty and so material has not been relied on in open court during a trial?
When a judge is sentencing a defendant who has pleaded guilty, the primary material they will rely on will be the oral submissions of the prosecution and defence advocates. The open justice principle will generally be satisfied by access to the courtroom. The fact that the prosecution submissions will be based on underlying evidence does not mean that the judge will have viewed the evidence or that such evidence needs to be provided under the open justice principle.
However, where material is specifically relied on by the prosecution in open court, then the same principles apply as for material relied on at trial and it may be released subject to consideration of the legitimate interests of others. This may apply, for example, where images have been handed to the judge or video footage has been played during the sentencing hearing.
Some types of material are specific to sentencing hearings:
- Victim personal statements (VPSs): these are frequently read out in court in whole or in part, either by the victim or by a third party on their behalf, including by the prosecutor. In such cases, the contents may be reported to the media, and victims should be informed of this in advance as it may be relevant to their decision as to whether they would like their VPS read out.[9]
- Reports such as pre-sentence reports or medical reports: these are typically court documents rather than prosecution documents, and as such are not covered by the protocol. Requests for such material should be directed to the court. In any event, they will usually be confidential, even where they have been referred to or quoted from in court, and would not be provided.10
- Material relied on by the defence alone during sentencing hearings, such as character reference: this is not prosecution material and as such is not covered by the protocol. Requests for such material should be directed to the defence or court.
Where it is necessary to release material under the open justice principle, this will amount to lawful processing under UKGDPR.
How do reporting restrictions affect decisions to release material?
While the general principle of open justice is central to the rule of law, there are circumstances when the Courts will impose reporting restrictions. Reporting restrictions can be automatic or imposed by the judge, which are sometimes called discretionary reporting restrictions. Automatic reporting restrictions include restrictions that prevent the publication of information that could identify a complainant of sexual offences or a youth witness, victim or defendant in the youth court. Discretionary reporting restrictions include orders under section 4(2) of the Contempt of Court Act 1981, which postpone the publication of reports that could create a real risk of serious prejudice to proceedings; they are often imposed where the reporting could impact on the fairness of future linked trials.
Where reporting restrictions are in place, material should not be released where publication of that material would breach those restrictions. However, where the only reporting restriction is an order under section 4(2) of the Contempt of Court Act 1981 postponing the publication of reports, material may be shared with media under embargo for publication when the Court lifts the restriction. If material is released under embargo, is it the responsibility of the journalist to keep abreast of developments in proceedings which might impact when material may be safely published.
Those making decisions as to the release of material to the media should ensure that they are aware of all restrictions that are in place. However, responsibility for complying with reporting restrictions lies with the media, and they should also always check the latest position with the court.
What is the copyright position?
Copyright cannot be given as a reason not to provide prosecution material to the media: section 45 of the Copyright, Designs and Patents Act 1988 states that copyright is not infringed by anything done for the purposes of judicial proceedings or for the purposes of reporting on those proceedings (other than copying another published report of proceedings).
Legal professional privilege
Requests for material covered by LPP or PII on analogous grounds may be declined in all cases, although the issue is highly unlikely to arise in respect of material relied on in open court.
Does the protocol cover magazine / newspaper feature requests?
The protocol specifically covers contemporaneous reporting of court proceedings. That may include feature pieces. Requests for material for non-contemporaneous features should be considered on a case-by-case basis.
What if a victim wants to do an exclusive deal with a media outlet?
There have been rare occasions where a victim has objected to material being released because they want to pursue an exclusive media arrangement. This runs contrary to the stated aim of the protocol to achieve openness in reporting criminal proceedings. Material should not be given on an exclusive basis.
What if the CPS and police disagree about the release of materials?
Decisions may be finely balanced, particularly if the concern relates to consideration of victim issues. The CPS has the final say over whether to release materials during a trial but should take into account the views of the police. If it is not possible to reach agreement, consult the CPS Director of Communications, who may decide to seek legal advice.
What is the process if media are unhappy about a decision not to provide material?
The protocol includes an appeal process, whereby the media can refer requests to the CPS Director of Communications for consideration.
The decision may take into account a number of factors including legal issues, representations on behalf of the victim or victim’s family, from prosecutors as well as concerns raised by police.
The media may also approach the trial Judge to request material. There is a process set out in Part 5 of the Criminal Procedure Rules for this. If the Judge determines that the material should be released, the CPS or police should comply as quickly as possible.
Issuing material
Timing
Prosecution material should generally only be released after it has been relied on by the prosecution during a trial or sentencing hearing. (As above, an exception may be made for opening notes.)
It is important to confirm with someone from the prosecution team precisely what material has been relied on before releasing it. That could be a CPS lawyer, prosecution Counsel, paralegal officer or a police officer in court. These checks should be made as soon as possible, although there may be a delay when all parties are involved in the ongoing trial. Press officers should log the details of the person who confirmed that the material may be released.
The protocol was developed to assist with contemporaneous reporting. The issue of contemporaneous reporting is an important one for court reporters, because it gives them the protection of absolute privilege. This means that it covers reports which run as soon as is practicable after the court hearing. For newspapers, this will mean in the next edition (whether it is daily or weekly) and for broadcasters, the day of, or the day following the hearing.
The media are responsible for ensuring the accuracy and legal basis for their own reporting. CPS and police press officers may issue prosecution material, once it has been relied on in open court, at any point during the trial, and, if there is a conviction, at sentencing.
It is reasonable to assist with requests for material for a period of one month following the conclusion of proceedings, when it is for the purpose of reporting the trial.
Clarifying requests
The request should specify what material is being sought and explain why it is required, since the protocol applies only to the release of material for the purposes of contemporaneous reporting. Where any of this is unclear, the police or CPS may ask for clarification.
Who is responsible for providing material?
The CPS and police share responsibility for providing prosecution materials in line with the protocol. Either organisation may be contacted with requests during a trial and following conviction. Good communication between the two parties will help to identify who is best placed to manage a request. There may be practical reasons why one is better placed to assist, such as easier access to the material requested or greater capacity to deliver material in a timely way taking into account other operational demands.
In cases where it is anticipated that there will be significant media interest, it is good practice for police force and CPS press officers to agree in advance the approach to managing the release of material. It is helpful to draw up a schedule of material for release, agree the clearance process and put in place an agreed method of distribution.
In a high-profile case, there may be a significant demand from media for all material shown in court. This can place a burden on the organisation providing the material. Forces and/or CPS should make reasonable efforts to fulfil requests but, in those circumstances where limited resources mean they cannot fulfil every request or do so as quickly as desired, media must take responsibility to refine their requests and understand it still may not always be possible to deliver all the material on the day it is first used in court.
What happens when a defendant pleads guilty and so the material is not shown in court?
The protocol is clear that the same principles apply – if the material has been provided to the sentencing Judge, or referred to in their sentencing remarks. Or material provided to the judge to inform sentencing, even if not shown/read in open court because the defendant has pleaded guilty prior to trial.
Can material be issued on an exclusive basis to specific media outlets?
No. All eligible material must be made available equally.
How can material be shared?
Material which is appropriate for release may be shared with the media by any suitable means. Most often this will be electronically, via email, a digital transfer service (eg. DropBox / Egress) or a password protected website.
In some exceptional instances to aid contemporaneous reporting, it may be necessary to share unedited material with the media on the explicit basis they edit this before publication to remove anything sensitive or which breaches the requirements of the protocol or reporting restrictions.
Further information
The following guidance and policies may be of interest.
College of Policing: Authorised Professional Practice: Media Relations
https://www.college.police.uk/app/engagement-and-communication/media-relations
Judicial College: Reporting Restrictions in the Criminal Courts
https://www.judiciary.uk/guidance-and-resources/reporting-restrictions-in-the-criminal-courts-4th-edition-update/
HM Courts & Tribunals Service: Staff guidance on supporting media access to courts and tribunals
https://www.gov.uk/government/publications/guidance-to-staff-on-supporting-media-access-to-courts-and-tribunals
The Ofcom Broadcasting Code
https://www.ofcom.org.uk/tv-radio-and-on-demand/broadcast-codes/broadcast-code
Society of Editors: Editors’ Code of Practice
https://www.societyofeditors.org/resources/editors-code-of-practice/
The Code of Practice for Victims of Crime in England and Wales
https://www.gov.uk/government/publications/the-code-of-practice-for-victims-of-crime
Part 5 Criminal Procedure Rules 2020 and Criminal Practice Directions 2023
https://www.gov.uk/guidance/rules-and-practice-directions-2020
Footnotes
[1] See rule 5.7(1) of the Criminal Procedure Rules
[2] Dring v Cape Intermediate Holdings Ltd [2019] UKSC 38
[4] Alsaifi v Amunwa [2017] EWHC 1443 (QB)
[5] presscards.co.uk
[6] See paragraph 2.6.11 of the Criminal Practice Direction
[7] Paragraph 2.6.11 of the Criminal Practice Direction
[8] https://www.college.police.uk/app/engagement-and-communication/media-relations
[9] Paragraph 27 of the Joint Agency Guide to the Victim Personal Statement