It has been revealed that the government and judiciary are to allow certain ‘legal bloggers’ to attend family court hearings, with a view to reporting upon the proceedings. The new scheme is to be piloted for nine months from the 1st of October, during which time the necessary new practices and procedures will be assessed.
The pilot scheme is to be set up under a new Practice Direction 36J, which defines what a ‘legal blogger’ is, and sets out what identification they will require in order to be allowed into court.
There are to be three categories of lawyers who are to be authorised as ‘legal bloggers’:
1. Lawyers holding a current practising certificate. Both solicitors and barristers are required to have a practising certificate, which is renewed each year by the respective professional body. As the name suggests, the practising certificate allows the lawyer to practice, including to conduct litigation or exercise a right of audience in the family court.
2. Lawyers working for the Law School, Faculty or Department of a Higher Education Institution designated as a recognised body.
3. Lawyers attending on behalf of a registered educational charity, where the name, objects and registered charity number have been provided to the President of the Family Division.
As to identification evidence, I won’t go into details but essentially legal bloggers will be expected to carry with them identification sufficient to enable court staff, or if necessary the court itself, to verify that they are “authorised”, as above.
Thus, for example, under the first category, this will be the practising certificate itself, along with picture identification of the lawyer. Legal bloggers in all three categories will also need to have with them a signed written statement by them which confirms:
(a) that the lawyer’s attendance is for journalistic, research or public legal educational purposes, and that the lawyer has no personal interest in the proceedings and that he or she is not attending in the capacity of an agent or instructed lawyer for any client; and
(b) that the lawyer is aware of and will abide by any restrictions on the publication which follow from the proceedings being in private, for example, identification of the parties and of any children involved.
OK, so what do I think of all this? Well, contrary to what some may think I am not against increased transparency in the family courts. Furthering the public understanding of what the courts do and, most importantly, why they do what they do, must be a good thing. And of course, the legal bloggers will (hopefully) report more accurately than the journalists who are already allowed to attend hearings, who often get things wrong. Legal bloggers will also not be drawn primarily to the celebrity or salacious cases that so often attract journalists.
But there are a couple of points I wanted to make.
Firstly, some legal bloggers, by which I mean people who actually write or contribute towards legal blogs, are not lawyers. I know of at least one very highly respected legal blogger who has never been a lawyer. As we all know, there are many non-lawyers out there with a very keen interest in the family justice system. I realise that lawyers know (or should know) the rules on what can be disclosed (see paragraph (b) above), and should, therefore, be trusted not to breach those rules, but journalists are not trained in the law, and they have been allowed in. Perhaps, if the pilot is successful, it may be extended to other non-lawyers, subject of course to appropriate safeguards.
And some lawyers will not hold a current practising certificate. I have no intention of taking advantage of the new scheme, but I don’t hold a current practising certificate, as I haven’t practised since 2009. I suspect many lawyers who blog are retired, but still take an interest in the subject – they will not hold a current practising certificate. Similarly to the above, I realise that the fact that a lawyer is still practising will act as an ‘encouragement’ to ensure that they are not in contempt of court by breaching the disclosure rules, but surely non-practising lawyers who are not in education or working for a charity can also be trusted, so long as the reason for their no longer practising is not that they have breached professional conduct rules?
And my last point is this: how will legal bloggers know what hearings to attend? Will, they just attend court at random, in the hope that something of interest may crop up, or will they ‘target’ specific cases? If the latter, how will they know of those cases, if they have not yet been brought to the public attention? Through the legal grapevine? I would be interested to hear the answer to this question.
The new Practice Direction is not yet in force and so does not yet appear on the Justice website, but you can download a copy here.