Justice Policy Series, Part II: Open JusticeOver the past few years – especially in the first year of COVID-19 and the emergency move to remote proceedings – it was frustrating to witness bold claims about the provision of access to court hearings and reporters’ rights when the evidence on the ground was that reporters and other observers were having difficulties entering courts and accessing virtual hearings.

When asked about what journalists could do if they encountered an issue, the Lord Chief Justice told the House of Commons justice committee in November 2021 that journalists could complain to local courts, and indeed, they occasionally wrote to him, but that there was no formal complaints system [Q35-37]. Given the number of regular complaints voiced via social media (let alone privately) by reporters, journalism lecturers, charities, and others attempting to observe courts, this does not seem a workable system.

Frustrations on the ground led to me coordinating an open letter in 2020 which was published on the Inforrm blog, as well as other sites, that received a response from the then CEO of HMCTS. The letter, signed by several journalists, academics and representatives from NGOs drew attention to public (as well as media) rights of access to the courts and the obstacles potential observers were facing, at odds with the official claims being made about open courts. This was part of an effort to challenge and expose a gradual slide into an ‘accredited journalists’ only approach – as we’d seen deployed in terrorism/national security related cases (highlighted by Lawrence McNamara on Inforrm in 2016).

It was pleasing therefore, when the House of Commons Committee on Justice decided to initiate a short inquiry into open justice in autumn 2021. Though the terms of reference focussed on the media’s role in court reporting, many submissions – including my own and that of some of the signatories to the 2020 letter – emphasised that the principle of open justice applies more broadly, and that other sorts of observers – academics and NGOs for example – also need rights of access – and for these rights to be operationalised in practice.

The committee held just two oral hearings, though there was substantial written evidence supplied alongside. I was privileged to be among the witnesses giving oral evidence – alongside the PA’s Emily Pennink, and Maeve McClenaghan, who was then employed at the Bureau of Investigative Journalism (she has since moved to the Guardian). Both these journalists were able to provide the practical detail missing from earlier sessions: Pennink in her capacity as a reporter at the Old Bailey, and McClenaghan from systematic and large-scale observation of possession hearings. A second session featured Sir Andrew McFarlane (President in the Family Division), John Battle (Head of Legal and Compliance at ITN, and Chair at the Media Lawyers Association), and Dr Natalie Byrom (Director at Legal Education Foundation).

In the sessions last November and January, the committee asked a range of on point questions, drawing out issues around access to basic information about court proceedings and documents, obstacles to observing proceedings, and some of the legal and ethical issues present in contemporary and increasingly digitalised court observation and reporting.

It was then a case of waiting to see what they would recommend. Would they stick to the original terms of reference framed in terms of ‘media’ rights or take a broader view of open justice, considering the practical issues and rights of the general public and other kinds of observers? What sort of practical recommendations would result?

A year on, the report has landed and can be read here. The main headline in the accompanying news item is ‘Court system failing to support public understanding of justice system’, so immediately it was apparent that the committee did take on board the point that this wasn’t just about traditional news media organisations but other sorts of court users too. In the opening discussion on open justice, the committee draws on Natalie Byrom’s and my own broader description of open justice to encompass ‘information transparency’:

  • The transparency of the administration of the courts;
  • The quality of the data collected and published by HMCTS;
  • Accessing court hearings and court documents;
  • The accessibility of judgments; and
  • How the courts communicate with the media and the public.

And perhaps most gratifyingly, it acknowledges the practical issues at play. In its conclusion, it highlights the evidence from Maeve McClenaghan and colleagues to make some fundamental points:

  1.  …. “The legal and constitutional status of open justice is immaterial if journalists face the sort of hurdles experienced by the Bureau of Investigative Journalism. Those barriers have the potential to create a chilling effect for journalists and the public by discouraging them from exercising their right to attend hearings. Everyone working within the justice system, especially judges and court staff, has a role to play in translating the principle of open justice into reality. (Paragraph 39)

The report is easily navigable and has been reported on by the Law Society GazettePress Gazette, the Justice Gap among others.

You can read an initial response by Daniel Cloake aka ‘Daniel the Mouse’, a regular and prolific court observer/blogger, which makes some very important observations about the press card system and the need for reform. There are Twitter responses (and perhaps some on Mastodon too) from various groups/individuals too, including Spotlight on Corruption, an organisation I have worked with on this issue in the past.

Here are my responses to some the main recommendations, based on my experiences and research of court observation and open justice, from page 51 of the report / final section:

“2. The Lord Chancellor and the Lord Chief Justice should consider producing a White Paper that clarifies and publicises the right of the public to attend court hearings and access information on court proceedings in the digital age. (Paragraph 11)”

This is an idea derived from Ed Owen’s written evidence. Ed Owen is the former director of communications at HMCTS (2017-20) so is in the unusual and useful position of sharing inside practical insights, while no longer representing the Government as a spokesperson. This sounds a useful initiative though I must confess in the current political context – with the Bill of Rights again looming large and given the recent history on media policymaking – I am a little nervous about how it would look in practice. It would be a great shame if such an initiative ended up solely focussed on institutional media rights, at cost of considering broader issues – public rights of access but also the privacy implications of new methods and systems for sharing data.

3. Open justice is a common law principle, and it is for the courts to determine its requirements in particular cases. However, responsibility for deciding how the principle should operate should not be left to the courts alone. Deciding the proper limits of open justice can often give rise to significant policy questions that Government and Parliament can only tackle through legislation. (Paragraph 19)

Yes. The report highlights the way in which the practical machinery around the delivery of open justice has blocked rights of access. For example, in the Cape Intermediate Holdings v Dring case decided in 2019, the UKSC recommended that the relevant bodies consider the issue of (non—party) public access to court documents. We are yet to hear an update from the Civil Procedure Rule Committee on this – something the report asks for (latest via @mouseinthecourt: open justice will be discussed at the committee’s December meeting).

4. The internet and social media are changing the way that the public access court proceedings, which is making the work of the courts more accessible; but this also presents dangers for the administration of justice. In the digital age, it is vital the Government, Parliament and the Judiciary work together to ensure that a balanced approach to open justice is achieved so that public scrutiny of justice can be secured without damaging the quality of the justice administered in the courts. (Paragraph 20)

It’s hard to disagree with this. It presents simply a very complex context. The judges’ nervousness around wholesale access to remote hearings is apparent in the written evidence. There’s lots to disentangle here: whether widespread public access (in its most liberal form, this is livestreaming of proceedings) will undermine proper systems of justice and facilitate abuse of the process and harm individuals; and also what the day-to-day impact on court users will be. The latter aspect isn’t considered overtly in the report, but is something I think does warrant more attention as part of further development of digital infrastructure.

How does digital access to personal information – in a far more systematic form than we’ve had to date – affect offender rehabilitation and rights to private and family life? It’s overly simplistic to say that open justice overrides those concerns: as demonstrated in important work carried out by the charity Unlock, around the ‘right to be forgotten’ and rehabilitation, and in High Court cases considering online accessibility of spent convictions information and individuals’ erasure rights (under the previous data protection regime).

Dr Judith Townend is senior lecturer in media and information law at the University of Sussex and author of ‘Justice System Data: A Comparative Study’ (2021) among other publications relating to open justice and public access to courts. She tweets (for the time being) @jtownend and now on Mastodon mas.to/@jtownendMore about her policy work here.

This post originally appeared on the Open Info and Ideas blog and is reproduced with permission and thanks