Open justice champions

Sounds good — but what will they do?

Supporters of courtroom transparency are intrigued by something Mr Justice Nicklin said during a lecture last week. Nicklin, who chairs the judiciary’s transparency and open justice board, was delivering a lecture to the courts and tribunals observers’ network at Green Templeton College, Oxford.

Mr Justice Nicklin speaking last Wednesday

Nickin’s open justice board — and HM Courts and Tribunals Service — were aware that there could be “issues” with people gaining timely access to remote hearings, he said. So the courts and tribunals service was “working to provide open justice champions”. These individuals would be “regionally based and it is intended that they will provide a single point of contact to assist in resolving open justice issues”.

That’s all we were told. The Law Society Gazette understands that open justice champions will be mid-level civil servants who will be responsible for giving people resources and information. At a regional level, it said, the champions would assist court staff in understanding what can and cannot be provided to the public.

Comments

Judith Townend, reader in digital society and justice at the University of Sussex and chair of the courts and tribunals observers’ network, said:

Mr Justice Nicklin’s engagement with the practical issues on the ground, as well as his recognition of a broader range of court observers than the traditional media, is to be welcomed. The creation of a stakeholder committee accompanying the transparency and open justice board was a good first step and these new roles within HM Courts and Tribunals Service could be useful in terms of removing obstacles that court observers regularly encounter. But those initiatives won't fix the problems — or resolve some of the current tensions — alone.

Daniel Cloake, who blogs as Mouse in the Court, said:

Whilst the idea of open justice champions might sound good, the notion that they are needed at all signifies a cultural problem at HM Courts and Tribunals Service that should, in my opinion, be corrected first.

Most open justice issues, especially ones which it’s anticipated can be dealt with over the phone, should be solved by having an easy-to-read document clearly setting out the rights of the public that can be accessed by all. Having been told last week by the team leader at Clerkenwell and Shoreditch County Court the entirely false proposition that “As you are not a party to the claim. The court cannot provide documents or discuss any aspect of the claim in question” the suggestion that this isn’t a problem with culture and training, but one which can only be fixed by having a helpline, is wrong.

Penelope Gibbs, director of Transform Justice, said:

Without eyes on the court, miscarriages of justice happen more easily. Our CourtWatch project, which recruits volunteers to observe magistrates’ court, has shown that people are keen to observe justice in action. But the courts are not always welcoming or accessible. Open justice champions could be the advocates that court watchers need.

Helen Taylor, deputy director of Spotlight on Corruption, said:

Open justice champions could play a valuable role helping courts across the country embed transparency in their operations and resolve the daily challenges that thwart effective access for public observers. But this initiative will only deliver meaningful results if there are system-wide reforms that harness technology to ensure open justice is a practical reality — including sufficiently detailed listing information, better access to remote and live-streamed hearings and a centralised database for free public access to core court documents.

Celia Kitzinger, co-director of the open justice court of protection project, said:

I worry that open justice champions will be placed in an impossible situation. I’m also concerned that they won't have any clear understanding of the barriers and obstructions impeding those of us who want to observe and report on the courts; nor, I fear, will they have the practical skills to fix them.

After observing more than 600 Court of Protection hearings myself, I am now spending a lot of time trouble-shooting for other members of the public who can’t find a case in the (woefully inadequate) public lists; or aren’t sent a link in time for a hearing (or the link doesn’t work); or there’s a “private” notice on the court door; or the reporting restrictions are incomprehensible and unjustifiably draconian; or the judge is unwelcoming.

At the very least, the new open justice champions need proper support and training (as do all HM Courts and Tribunals Service staff, lawyers and the judiciary) covering the law and practice of transparency. Members of the courts and tribunals observers’ network would be happy to offer this.

Can justice be delivered in private?

The judge began his lecture with a question. “If justice is done but no one sees it,” he asked, “can we truly say it has been done?”

In a narrow sense, he accepted, a private arbitration hearing can resolve a dispute independently and according to law. “Arguably, however, ‘justice’ in its wider meaning means inherently public justice.” Any derogation from open justice must be no greater than necessary.

Nicklin cited a case from 2000 in which the Court of Appeal had set aside the decision of an industrial tribunal because it had sat behind a locked door in an area marked PRIVATE NO ADMITTANCE TO PUBLIC BEYOND THIS POINT.

Access to information

But there was more to open justice than that; those attending court needed access to information about the cases being heard:

The well-recognised objectives of open justice are hardly likely to be realised if, although the proceedings are conducted openly, the audience cannot understand (or at its most prosaic, hear) what is going on.

If advocates and the court adopt an impenetrable shorthand, or whose reliance upon silent written submissions and unspoken written witness statements means that the bulk of the arguments (and evidence) is never publicly articulated, then the product is more likely to be closed than open.

Justice may be done in the individual case, but the objectives of open justice will not have been served. Whilst courts must be efficient in the administration of justice, that should not be at the expense of open justice.

To that end, he explained, the civil division of the Court of Appeal was piloting the publication of skeleton arguments in cases that were to be live-streamed. An example is an appeal to be heard tomorrow in which Fajr Ellis, who served 28 years of a life sentence in prison for attempted murder, is challenging what he says is a breach of his right to education.

These written summaries are normally provided to reporters attending court hearings. Parties are sometimes reluctant to release them until the hearing begins. But the pilot project demonstrates that the Court of Appeal has no problem with advance publication of skeleton arguments in civil cases — or, implicitly, with reporters’ previews published ahead of a hearing.

Resources were always a challenge: Nicklin pointed out that the provision of skeleton arguments in some civil appeals “would not have got off the ground without the support of an already very busy team member in the Court of Appeal office putting in a considerable amount of extra work”.

But, he suggested, a simple change of practice would make skeleton arguments much easier for observers to follow. That would involve parties including hyperlinks — like this one — to the cases they cited.

It’s really very easy once you know the shortcut.