Open justice

Open courts, open reporting, open decisions and open documents

Open courts, open reporting, open decisions and open documents are the fundamental components of open justice, senior judges in England and Wales have agreed. Their aspirations are set out in a paper published last month by the transparency and open justice board established last year by the lady chief justice and chaired by Mr Justice Nicklin.

As I reported on Friday, the board has asked the justice secretary to allow judicial review claims to be live-streamed in the same way as civil and family appeals.

Broadcasting from the Court of Appeal criminal division began in 2013

Some of those who responded to my report on social media argued that the judiciary needed to go much further. As far as the senior judiciary is concerned, those critics are pushing at an open door. But, as the board accepts, “it cannot act alone”. What are the chances that others will give it the support it needs?

Let’s begin with the key objectives published for consultation last month. The first paragraph is wonderful. The second is not unreasonable. The third raises a significant concern.

Here’s paragraph 1:

The inevitable caveat appears in paragraph 2:

That, in itself, is not unreasonable — although saying “don’t blame us” in three different ways is perhaps a little over the top. All statutory rules are ultimately the responsibility of parliament and clearly they cannot be overturned by the judiciary.

Paragraph 3 is pretty blunt:

Some? I’d say many. In explanatory notes published alongside its draft, board members acknowledge that agreeing the key objectives is only the first stage of reform. They recognise that

the next phase of the board’s work will be to engage with all courts and tribunals and to ask them to carry out an evaluation of the extent to which their current practice and procedure achieve the key objectives. Where they do not do so, the relevant courts and tribunals will be asked to formulate a change programme that would see the key objectives being realised.

As part of that reflective exercise, the courts and tribunals will be asked to identify any obstacles to achieving the necessary changes. The board fully recognises and understands that changes may need time and sufficient resources to be achieved fully.

Let’s take another look at paragraph 1 above. Identifying the subject-matter of a case is something that the claimant could be asked to do when lodging a claim, perhaps by selecting a heading from a drop-down list. The remaining details in sub-paragraph (1) should already be known to court staff.

Access to core documents is quite another matter. The initiating document — a claim form, for example, or an indictment — will be readily available. But some information it currently includes will have to be withheld from the public at large. Parties will argue, not unreasonably, that their home addresses should not be published. And people who allege they are victims of certain sexual offences are entitled to anonymity. So documents will either have to be checked and redacted by trained staff or restricted to authorised observers.

Access to audio-visual evidence and even written documents will need careful consideration. Criminal trials will presumably require greater restrictions than civil claims. Family cases will fall somewhere between the two. There must be limits to the quantity of evidence that the courts and tribunals service can be expected to host on its servers.

Access to hearings should be less of a problem but there will still need to be investment in audio-visual equipment, some of which currently amounts to little more than a sound feed for reporters trying to watch remotely. Transcripts are still prohibitively expensive despite rapid improvements in technology.

Comment

I am not suggesting for a moment that the board’s objectives are wrong in principle. As it said in explanatory notes published last month,

many areas that are critical for the success of the initiative depend on collaboration with HM Courts and Tribunals Service and the Ministry of Justice; and support from members of the judiciary at all levels.

Let’s start with members of the judiciary. We don’t often hear what they think about moves to open up the courts. But this was the view of Judge Haigh, a circuit judge sitting at the family court in Manchester in August 2023:

If you want to know my view on the transparency project, it is not supportive. I have always felt these cases are deeply private and my judgments are there really for the parents — to help them, to help the families. They are not for public consumption or to allow press and journalists to further their journalistic ambitions.

Haigh made these remarks during what he expected would remain a private hearing. I explained in some detail a few months later how his comments came to be reported.

You might think this attitude is uncommon. But we saw something similar in the decision of Mr Justice Williams to stop reporters naming family judges who dealt some years ago with the case of the murdered schoolgirl Sara Sharif. Next week, the Court of Appeal will be deciding whether his decision should be upheld; the two-day hearing will be live-streamed from Court 71.

I would expect most judges to offer cautious support for greater openness, in public at least. Any objections are likely to be expressed as practical rather than principled: “love to go along with this but I simply don’t have the time”.

We can expect something similar from the Ministry of Justice: “love to go along with this but we simply don’t have the money”. So the board will have its work cut out in the coming years to win the support it needs.

But win it must. A reader reminds me of remarks made by Lord Denning in 1955. There was, said the future master of the rolls, “a newspaper reporter in every court. He sits through the dullest cases in the Court of Appeal and the most trivial cases before the magistrates. He says nothing but writes a lot. He notes all that goes on and makes a fair and accurate report of it. He supplies it for use either in the national press or in the local press according to the public interest it commands. He is, I verily believe, the watchdog of justice.”¹

Those days are long gone. As it becomes ever harder for legacy news organisations to provide serious coverage and analysis of legal developments, the courts themselves must do all they can to create improved lines of communication with those of us who cover their work — and with the public at large.

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1. Sir Alfred Denning, The Road to Justice, 1955, quoted by Lord Justice Watkins VC in the Felixstowe Justices case, 1986