THE PEMBROKESHIRE HERALD sent a barrister to Swansea Crown Court today (Friday, May 21) to make an application that a press gagging order made last month during the James Oulton trial be now lifted.

WHY DID THE HERALD GO TO COURT?

This newspaper argues that the judge was wrong in law to make the order, as it represented an “excessive interference with the principle of open justice, and an unwarranted restriction on the newspaper’s right to free expression.”

Editor Tom Sinclair said: “We feel that it is important that all high-profile court cases are covered by the press, and that this reporting should be fair and impartial.

“This means that the newspaper wanted to report on both the prosecution and defence evidence at the James Oulton trial – but we were unable to do so as a press restriction was made halfway through the trial. This meant we could only present the prosecution evidence to our readers.”

“I believe that the order made by the Swansea Crown Court was wrong, and the court could have secured the participation of defence witnesses without a press gagging order.”

“Despite the request for the press restriction coming from Mr Oulton’s own counsel, we feel that this meant that in the eyes of the public the reporting of the case was unfair to him.”

“Although the case is over, with Mr Oulton being acquitted of all charges, it is important that courts and judges know the right way forward for future trials. There are 77 Crown Courts in England and Wales where trials of this type will crop up in the future – because of this we are asking the Royal Court of Appeal in London to decide the matter.”

WHAT HAPPENED IN COURT TODAY?

Former Haverfordwest primary school teacher James Oulton was cleared of 31 charges of sexual touching of pupils, in a case he described as ‘a witch-hunt’, on May 4.

It was not expected that the trial judge would rescind or amend her own press gagging order today, but the hearing at 10am this morning was seen by the newspaper as a steppingstone, its editor said. The matter is now expected to be heard at the Court of Appeal in London very soon.

The press restriction which The Herald is fighting had been requested by James Oulton’s legal team halfway through the trial because he felt that his defence witnesses would feel “uncomfortable” giving evidence if there was publicity about their attendance in court.

There had already been a hearing earlier in the trial by the defence barrister Christopher Clee QC to have the indictment stayed (Case thrown out for abuse of process) over an issue with witnesses, for reasons unrelated to court reporting.

James Oulton was worried that his witnesses would be reluctant to turn up and give evidence of “a good quality” if everything were being reported openly.

A statement was presented to the court with the names of eight defence witnesses – each one giving reasons why they did not want to be named in the press.

The court also had concerns about public comments on Facebook about the trial, some of which had appeared on the Pembrokeshire Herald’s page. The newspaper swiftly acted during the trial to ban public comments on news stories about the case, after being approached by the CPS.

The trial judge said that the social media posts had not impacted the jury as they were mainly from the Swansea area, whilst the newspaper’s readership was in Pembrokeshire.

HERALD ARGUES FOR PRESS FREEDOM

Barrister Matthew Paul, counsel for The Pembrokeshire Herald newspaper, said in court that “it should not be underestimated the difficult position the newspaper was put in by not being able to report on the defence part of the proceedings.”

He said: “The newspaper, which wanted to report on the whole case, took considerable flak over what has been seen as one-sided reporting.

“The 17,000 readers of The Pembrokeshire Herald would be wondering about the mystifying void in place of the reporting of the second part of the trial.”, he added.

The trial judge, Her Honour Judge Catherine Richards, presiding over the application to rescind or amend her own order, said she knew that “emotions had been running high in Pembrokeshire” – and even mentioned in court that the police had held a Gold Command meeting to discuss possible public disorder as the trial was taking place.

APOLOGY BY JUDGE TO HERALD JOURNALIST

Referring to an incident during the trial when a journalist had to be removed from the public gallery over concerns for her safety, Her Honour Richards said: “I am deeply concerned to hear what happened to the Herald’s reporter Ms Carli Newell.

“If I were aware of it, I would have taken steps to ensure that it would have been dealt with immediately.

“The public gallery, although a separate room [connected by video link], is part of the court room for the purposes of the trial and this was clearly unacceptable.”

“I would like to extend an apology to the reporter, and I will ensure that this never happens again.”

Documents submitted to the court explained that some of those in the public gallery had threatened the journalist with violence, been generally obstructive. It was also in evidence that the newspaper had received threatening phone calls and messages warning the newspaper not to report on the trial.

In relation to the application to lift the gagging order made last month, Matthew Paul, for The Herald, questioned whether such a reporting restriction was necessary. He highlighted that press gagging orders should not be imposed “unless there is an overriding need, and no other solutions than making an order, to ensure open justice in a democratic society.”

He said: “The order was imposed for the comfort of the witnesses rather than because that there was evidence of a physical threat to them.

“Witnesses could have been put at ease, for example, by the use of screens in the court room, or by having discussions with the police about how to handle any potential abuse”.

Her Honour Judge Catherine Richards asked Mr Paul if he understood the difference between a prosecution witnesses and a defence witness and securing their attendance at court – to which Mr Paul replied he did. Mr Paul went on to explain that the court had a “battery of weapons to use against a witness who refused to attend.”

Citing case law, he then explained that the higher courts had always sided with the principle of reporting court cases openly, even when there had been difficulties these had been “got around”, he explained.

He told Swansea Crown Court: “The basis on which the order was made was incomplete and did not balance the rights of open justice, and ensuring witnesses attended court without getting hassle.  

“And it IS their comfort we are talking about – there is no threat to their lives or property – we must side with open justice.”

Mr Paul said that in making the press restriction during the trial itself, the court had effectively “promised” the witnesses that their names would be kept out of the press and that they had “attended the court on that promise.”

He therefore suggested to Her Honour Judge Catherine Richards that she may consider the second part of his application. Rather than completely rescinding the press restriction, Her Honour could make an Excepting Direction (an amendment to the original order), as a “reasonable compromise” which would keep the “witnesses names and photographs” out of the paper, he suggested, but would allow for “reporting of the rest of the defence case.”

APPLICATION REFUSED BY JUDGE

Mr Paul’s application was, after all, for “revocation of reporting restrictions OR an excepting direction pursuant to section 46 (10) and (11) of the Youth Justice and Criminal Evidence Act 1999”.

At the end of the hearing Her Honour Judge Catherine Richards said: “I do not revoke the order – it was, on the evidence necessary. On the second part of the application, I do not think that an Excepting Direction would be in the public interest, and therefore the application is refused.

Judge Richards said: when making the original order: “The Herald initially reported proceedings with a link to its Facebook page. Some of the comments added were of concern to the defence.

“Those comments required no formal action, but I am satisfied that the witnesses have expressed concern.

“One has been disciplined due to her support of the defendant. I am satisfied that the quality of their evidence is likely to be diminished, and that a restriction is necessary.”

At a previous hearing Judge Richards, who has been a Crown Court Judge since being appointed by The Queen on 27 April 2020, had said that The Pembrokeshire Herald had “rightly and properly” reported on the case.

STATEMENT FROM EDITOR

Speaking after the hearing, Herald editor Tom Sinclair said: “There are many good reasons why some evidence and some details of some cases are subject to reporting restrictions. The law makes those circumstances clear.

“We do not, however, believe that the evidence given in this case met the criteria for such a sweeping restriction.

“That is why we are taking this matter to the Court of Appeal for a definitive ruling on the issues raised by the Judge’s order.

“Court reporting fulfils a vital function. Justice must be seen to be done and reporting what happens in court makes sure it’s seen by as many people as possible.

“Being able to report only one half of proceedings, the unintended effect of HHJ Richards’ ruling, meant we could not do our job of giving our readers the whole story of a difficult and emotionally charged case.
The timing of the Defence’s application meant we had already reported the Prosecution case but were stopped from doing the same for all the evidence given on Mr Oulton’s behalf.

“It’s one thing to ignore an important case, in fact that’s very easy. That’s cowardice. It raises important questions about what else those who fail to report controversy are keeping from the public because they’re afraid to report the whole story.

“When justice takes place behind closed doors, or if it is not reported by the press, it is never seen to be done.

“And that can never be right.”