Court of Appeal on Wednesday, Wellington:
A law student tentatively enters the lobby clutching a notebook. She approaches the registry desk and tells the staff member she had an assignment which requires her to watch a session of court. “Can I go in? I won’t take notes”. Looking to another staff member for reassurance, the registry officer confirmed she could go into court “as long as you don’t take notes”. The student said she wouldn’t, she just had her book so she could take notes right after.
Hanging about in the lobby (as you do) I felt a little outraged. Why all these restrictions on taking notes? As a researcher it is plain old annoying but it is also an issue of principle, what interests can infringe open justice in this way?
What both the law student and the registry staff were referring to is a convention that no one is permitted to make notes in the public gallery unless they have the permission of the Judge. It can be traced back to a 1971 judicial conference and is recorded at the bottom of a page of the June 1972 edition of the New Zealand Law Journal:
The Chief Justice, Rt Hon. Sir Richard Wild, has advised that at the Conference on Saturday, 20 November 1971, the Judges resolved that there is no general objection to the taking of notes in Court. A Judge is, however, master of his [sic] Court and as a matter of courtesy has permission should be sought by persons other than Counsel and accredited news reporters.
While according to Wild CJ’s there is “no general objection” to note taking, the matter of courtesy has become a rule of thumb in all our courts. It is drummed into law students and enforced by the court staff (even when I have permission to take notes for research they still question me and double check with the judge). The Courts of New Zealand website also makes it plain:
No-one other than members of the media may make a record in court, whether that record be in the form of notes or film or recording, unless given permission by the Judge.
The judges are often quite legitimately concerned about security. There have been a number of incidents over the years that would make a judge jumpy and they like to know who is in their court and what they are up to. Restrictions on note taking might also be needed when a witness is giving evidence at trial. But do these concerns really require what is in effect a blanket ban on writing notes on a piece of paper across all the courts, including the appellate courts?
The High Court of England and Wales thinks not. Note taking without permission had been routinely banned in the Crown Court in Cardiff until, in keeping with the trends of the day, a declared vexatious litigant Mr Ewing, brought a judicial review of the practice and had it overturned. Mr Ewing was trying to take notes for his associate, Mr Kirk a litigant for who “pursuing and defending court cases” had become “a dominant feature” of his life (at ). Deciding the judicial review, Burnett LJ (with Sweeney J concurring) describes what might be politely called the “trying situation” the Crown Court Judge faced:
The papers contain many references to [Mr Kirk’s] website where (apparently) he details what he sees as his endless struggle against injustice.Mr Kirk’s habit is to appear unrepresented and, unlike a professional advocate who owes duties to the court to conduct proceedings with reasonable dispatch and take only points reasonably arguable, Mr Kirk’s approach is to take as long as possible, to raise endless technical objections and seek to use one set of proceedings to assist him in another. … From the outset it was apparent that the appeal was being conducted by difficult litigant and that it would be far from straightforward.
Accompanying this almost-vexatious litigant was an actual vexatious litigant (having been declared so under the Senior Courts Act 1981), Mr Ewing. Mr Ewing wanted to take notes in the public gallery and presumably the notes would be used to add content to that website.
Faced with this, the Judge enforced the convention that permission had to be granted to take notes offering the justification that it was:
a conventional rule and one which is designed to ensure that no prejudicial material leaves that Court through an inexperienced reporter.
The High Court was not at all convinced however, granting Mr Ewing’s judicial review, and calling the convention “mistaken”. Burnett LJ held that:
… those who attend public court hearings should be free to make notes of what occurs. It is a feature of the principle of open justice that those attending public hearings should ordinarily be able to make notes of what occurs. For any number of reasons a visitor to a court may wish to have a record of the proceedings for later use or out of interest. In this jurisdiction there is no good reason why the starting point should be that note-taking is not allowed unless permission has been sought and granted. Note-taking by members of the public is unlikely, without more, to interfere with the due administration of justice.
The Judge suggests that concerns about what might be written on Mr Kirk’s website were a factor in enforcing the ban. He suggests the court was “troubled by the possibility that Mr Kirk would place inaccurate information on it”. Banning note taking does nothing to reduce this risk however, in fact it increases it. The law student at the Court of Appeal trying to do her assignment recognised this as she brought her notebook along to take notes immediately after, knowing her recall would fade.
Burnett LJ also interestingly picks up on a possible subtext of the ban, never stated by the Crown Court, that in preventing Mr Ewing from taking notes “the court was asserting its authority”. Burnett LJ notes that such reasoning would be a “bad” justification:
It comes to little more than a suggestion that an inroad into the principle of open justice was necessary to show who was boss.
So I would suggest it is high time the New Zealand courts reviewed the 1971 direction that a judge as “master” of their court must grant permission before notes can be taken. It is fine to impose restrictions where they are necessary and justified but in the interests of open justice, legal education and research, let us make the starting point that we can take notes without seeking permission.