The connection between the principle of open justice and the reporting of court proceedings is not merely functional. It follows that the principle of open justice is inextricably linked to the freedom of the media to report on court proceedings.

Two elements make up open justice: the first is that justice should be done in open court so that the people interested in the case, the wider public and the media can know what is going on; the second is that the names of the people whose cases are being decided and others involved in the hearing should be public knowledge.

Article 517 of our criminal code provides for judicial discretion in banning the publication of names in legal proceedings, allowing judges and magistrates to restrict the disclosure of information to protect vulnerable parties or ensure fair trials, but this power should not be unlimited and must be balanced against the public's right to open justice and freedom of the press.

Regrettably, our judiciary has lately been loosely using its discretion to ban publication of an accused person's name or order a case to be heard behind closed doors.

It is a central principle of criminal justice that the court sits in public so that the proceedings can be observed by members of the public and reported on by the media. This enhances public understanding of the process and bolsters public confidence in the justice system.

Media reporting is critical to all these public interest functions.

There are occasions, however, when it is necessary to make an exception to these principles to protect the rights of children or the identities of some adult complainants, for example. Such issues often arise at short notice, and the law relating to the decisions that have to be made can be complex.

A publication ban is a court order that prohibits the publication, broadcast, or transmission of certain information that would otherwise be available in open court proceedings. The purpose of a publication ban should be to protect the integrity and fairness of judicial proceedings or the privacy and safety of litigants or third parties.

A publication ban may prohibit the publication of any information that would identify a particular witness or victim in a criminal proceeding, thus exposing him or her to danger. Another good example is that at bail hearings, publication bans can be applied to prohibit the publication of any details or evidence disclosed that can compromise the integrity of the eventual trial.

A magistrate's or judge's decision to ban the publication of trial proceedings can be an abuse of discretion if it is not justified by a clear legal basis and if the ban is broader than necessary to achieve its stated purpose. This abuse occurs when the ban infringes upon the public's right to access information about the justice system or the media's ability to report on court proceedings.

It has been recognised for many years that press reporting of legal proceedings is an extension of the concept of open justice and is inseparable from it. In reporting what has been said and done at a public trial, the media serve as the eyes and ears of a wider public, which would be absolutely entitled to attend but for purely practical reasons cannot do so.

The principle of open justice, however, has never been absolute. Indeed, there is a long-established tradition in case law in favour of privacy, such as when dealing with children or people who are mentally incapacitated. This is also the case for situations where aspects of a case are commercially sensitive or concern national security, such that allowing reporting would undermine the case itself.

Our judiciary should ponder at length on the circumstances in which the law allows it to exclude the media, withhold information, or postpone or ban reporting before considering whether it would be a proper and appropriate use of any such power in the case before the court.

The principle of proportionality requires that any order must be narrowly tailored to the specific objective the court has in mind and must go no further than is necessary to achieve that objective. Overbroad orders should be set aside, as should those that last too long.

Dr Mark Said is a lawyer