Well before the implementation of the HRA, open justice was recognized as essential to ensure public scrutiny of the operation of the court system as well as provide information to the public (see  Scott v Scott [1913] AC 417).

The principle of “open justice” is a fundamental one which is deeply rooted in the common law and which is subject only to narrow exceptions. As Lord Diplock put it in Attorney General v Leveller Magazine Limited [1979] AC 440 at 450A to C.

“If the way that courts behave cannot be hidden from the public ear and eye, this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice. The application of this principle of open justice has two aspects: as respects proceedings in the court itself, it requires that they should be held in open court to which the press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is communicated publicly.”

The principle has been reinforced by articles 6 and 10 of the Convention. As Lord Steyn said in the case of In Re S (A Child) (Identification: Restrictions on Publication [2005] 1 AC 593, para 15.

“under the ECHR there is a general and strong rule in favour of unrestricted publicity of any proceedings in a criminal trial … the common law has long adopted a similar approach”

The common law position was rationalized following the introduction of Civil Procedure Rules and the implementation of the HRA, where the court as a public authority has to act compatibly with convention right.

Exceptions To Open Justice

Article 6(1) expressly recognises that the press or public may be excluded from all or part of the trial. It provides;

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

Furthermore the European Court has recognised in B v United Kingdom; P v United Kingdom that the Article 6 requirement to hold a public hearing was subject to exceptions  [2001] 2 FLR 261 . The court said:

“….the requirement to hold a public hearing is subject to exceptions. This is apparent from the text of Art 6(1) itself which contains the proviso that ‘the press and public may be excluded from all or part of the trial…. where the interests of juveniles or the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice’. Moreover, it is established in the Court’s case-law that, even in a criminal law context where there is a high expectation of publicity, it may on occasion be necessary under Art 6 to limit the open and public nature of proceedings in order, for example, to protect the safety or privacy of witnesses or to promote the free exchange of information and opinion in the pursuit of justice …”

For the purpose of Article 6, a “determination” must in general be a final determination of a civil right or obligation or a criminal charge. Accordingly interim decisions in interim hearings will not be subject to the guarantees under Article 6. Although there is a general right to a public hearing this is therefore subject to exceptions and does not apply to interim hearings except where they finally determine the issue.

If the trial is held in private, there is an obligation to hand down a written judgment in public. However there may be exceptions where it is not possible to produce an anonymised or abridged version. Whether or not the hearing is in private, where a public judgment is being handed down it should avoid reference to the private/confidential material. This principle applies even where the court has declined to restrain the information so that it is for the defendant publisher to decide whether to publish and risk a claim in damages, otherwise the judgment would undermine any available remedy in damages.

Accordingly the default position is open justice in relation to the nature of hearings and public availability of court documents and documents referred to in court. The court may derogate from some or all these open justice principals where there is evidence justifying such a course of action. The exceptions to open justice principals include anonymising of proceedings, private hearings and withholding of documents from public inspection.

As the court made clear in Terry v Person Unknown[2010] EWHC 119 (QB), any application for such derogations should be supported by evidence in an application. Tugendhat said in the Terry case:

“Open justice is one of the oldest principles of English law, going back to before Magna Carta. It is now set out in CPR39, and in Art 6, in terms which it is unnecessary to repeat here…” [106]

He went on to point out

“There is of course an obvious difficulty in at the same time complying with the principle of open justice and giving an effective remedy for threatened misuse of private information. But as was stated in Re S, there is no presumptive priority between ECHR rights. That applies as much to tensions between Art 6 and Art 8 as it does to tensions between Art 8 and Art 10. Art 8 does not have a presumptive priority over Art 6 and open justice. Each derogation from Art 6 and open justice must be justified on the particular facts of the case, in accordance with the intense scrutiny required.” [108]