The Court of Appeal today took a bold step forward in advancing court transparency. The decision in R (Guardian News and Media Ltd) v City of Westminster Magistrates Court ( EWCA Civ 420) established in common law for the first time the right of ordinary people and the media to obtain documents that are used in court cases.
It has been a long time coming. The UK has undergone a transparency revolution over the past 10 years. The Freedom of Information Act 2000 (FOIA) has forced over 100,000 government bodies to make the information that they collect and use in daily actions available on request to the public. Recent government initiatives have made the expenditures of government bodies and local governments available online. Parliamentary bills, reports and proceedings are available online quickly.
The courts were an early proponent of openness: open justice has been a principle since the 17th century. It is essential to ensure that courts are accountable by allowing any person to attend court hearings. But as other government institutions have become more open, courts’ practices have not evolved to the same extent. The decision to allow tweeting (in principle) is welcome and the Bailii initiative and others have resulted in many decisions becoming publicly available, but many gaps remain.
The Justice Wide Open event at City University a few weeks ago revealed that there were many legal and practical limits to open justice. Few local newspapers now cover local courts and even the larger national media only attend a few cases; transcripts remain the commercial property of the court reporters and video and audio recording of cases is forbidden for reasons that are hard to understand; non-media such as community micro-sites have little access to anything; the FOIA only has limited application to the courts.
In this case, the growing practice of judges and the lawyers moving to a more document-focused case system and referring to documents that are only partially read out triggered the need to change the rules. An average court case is a bewildering series of references to documents contained in the large boxes on the judges’ and parties’ tables. A member of the public or reporter has little chance to follow, especially when the documents are non-public and only briefly summarised. This decision will allow for better scrutiny of the arguments and the evidence, which is especially crucial in extradition cases where a foreign government is demanding the handing over of persons based on crimes different than under UK law.
The court based its decision on the common law rather than the still evolving case law on the right to access from the European Court of Human Rights, which is still being resisted by the courts here. But after reviewing cases from Canada, the US, New Zealand and South Africa, the court found that the rest of the world had moved forward on this and considered it wise to follow suit.
A strange aspect of this case was that the US government was the only party opposing the release of the documents. The documents that the Guardian were trying to obtain were so basic you really do have to wonder why there was any opposition to their release, especially since no arguments were made that their release would cause any harm. Had the case been held in the US, they would have been routinely made available to anyone who wanted them. Perhaps it was US fear of having to release evidence in more controversial future cases, such as the potential extradition of Julian Assange to the US.
In the US, the Public Access to Court Electronic Records system allows anyone for a very small fee to be able to access most documents submitted electronically, including the briefs in any federal court case. It has over a million users. Taking this decision forward, the UK should now adopt a similar system of proactive disclosure. In the 21st century, open justice should be online justice.
This article originally appeared in the Guardian “Comment is Free” Liberty Central, and is reproduced with permission and thanks.