The practical reality of open justice and what can be done: reflections on the justice committee’s new report

Judith Townend

Over 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:   

8.  …. “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 Gazette, Press 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).

6. The decline in court reporting has had a negative effect on open justice in England and Wales. (Paragraph 33)

Yes, and the committee points to my evidence on some of the available data and research on the decline. We can’t rely on traditional media organisations as the ‘eyes and ears’ of the public because they aren’t systematically attending most court proceedings (see Chamberlain et al, 2019). However, in making this point, I don’t think we can assume that news organisations’ court reporting activity always leads to the best societal outcomes – and future research should also consider the impact of individuals’ stigmatisation via certain formats of court reporting, and the possibility of further entrenching systemic inequalities present in the justice system (such inequality is highlighted in the 2017 Lammy Report on race and the justice system). What’s paramount, in my view, is providing justice system accountability and facilitating what Chamberlain and others have called ‘justice reporting’ – i.e. information about the functioning and outcomes of the justice system that is in the public interest to know, but not necessarily ‘newsworthy’.

7. …  “HMCTS needs to use technology and organisational reform, building on the work done with Courtsdesk News, to provide the media with the information it needs in a consistent manner, as soon as possible, to facilitate court reporting. HMCTS should also pilot the use of regional communication and information officers to support media and public access to hearings. Furthermore, the decrease in the media’s coverage of the courts also strengthens the case for the re-establishment of a courts’ inspectorate, which could help to identify wider issues within the justice system, particularly in the Magistrates’ courts and the Family Court, which are not well covered by the media. (Paragraph 33)”

These sound really useful initiatives – of course, the question here is whether services will extend beyond the ‘media’ and how that will be resourced and managed.

“10. HMCTS should publish a citizens’ charter that outlines the public’s rights to access information on the courts. (Paragraph 40)

Yes please! Again, demonstrating that the points about wider public rights have been taken on board by the Committee.

11 …. “There should be a single point of contact for all accessibility and open justice inquiries from the media and from the public … In reality, at present there is no formal official mechanism for the media or the public to raise accessibility enquiries or complaints in relation to the courts. The creation of regional communication and information officers within HMCTS could provide that point of contact for reporters and the public. The courts’ inspectorate, as we proposed in our report on court capacity, could have a specific remit to examine the operation of open justice. (Paragraph 41)

Yes – this is a really critical observation (picking up the point I opened this blog post with) and needs development, if we are to have accountability for open justice processes.

“13. Every court should list an email address on its website to enable the media and the public to request access to remote hearings. (Paragraph 44)

Yes – really important but it should be noted that email addresses are often already available – but court users often receive untimely or no responses at all (as recounted by the Open Justice Court of Protection Project for example).  

“15. We recommend that HMCTS gathers and publishes data on requests to observe proceedings remotely. In particular, it would be useful to know the number of requests received and the number of requests granted by jurisdiction. (Paragraph 49)

Yes – as the committee observes, experiences have been inconsistent – and access is at judicial discretion, if subject to legislative provision and guidance. This data is vital if we are to understand whether individuals are able to access proceedings remotely (the evidence submitted to the committee suggests that this has been impossible in some contexts, notably in the Magistrates’ courts).

17. We welcome the planned digitisation of the publication of court and tribunal lists and the consolidation into a single service in one location. (Paragraph 59)

18. …. We recommend that HMCTS considers whether the proposed digital portal should be expanded to include all court information, including results, reporting restrictions and court documents. (Paragraph 59)

Talk to any observer about courts access and listing issues are a main preoccupation.

So improvements on this front – as well as the other data categories – are welcome, but as above, the side-effects and implications for users of any new system should be considered carefully in the design and rollout. Another of the prompts for my interest in open justice was lack of access to documents, and the system is well overdue an overhaul. Of course, any digital documentation of reporting restrictions needs careful thought – at the very least marking cases that have active RROs would be an improvement on the current system.

“19. The Committee would welcome an update on the work being undertaken by the Civil Procedure Rule Committee to improve access to documents in civil proceedings. (Paragraph 64)”

Yes – as noted above.

“20. The Government and HMCTS should establish a streamlined process for accessing court documents, including courts lists, using a digital portal modelled on Public Access to Court Electronic Records (PACER) in the United States. This should also be used to inform the media of reporting restrictions, including automatic restrictions and notice of applications for reporting restrictions. (Paragraph 72)”

“21. The Government and HMCTS should conduct, or ask the Law Commission to conduct, a comprehensive review on access to documents referred to in open court and propose legislation if necessary to clarify the position. (Paragraph 73)”

“23. The proposed new digital portal should also enable access to a centralised database of reporting restrictions on cases. (Paragraph 82)”

My comments in response to Conclusion paras 17/18 apply here.

“25. HMCTS should explore whether greater use of technology, such as AI-powered transcription, could be piloted to see whether it can be used to reduce the cost of producing court transcripts. HMCTS should also consider whether the sentencing remarks in the Magistrates’ courts could be routinely recorded and transcribed on request. HMCTS should also review its existing contracts for transcription services to ensure that transcripts are more accessible to the media and the public. (Paragraph 87)”

“28. All Crown Court sentencing remarks should be published in audio and/or written form. HMCTS should ensure that the necessary resources are made available to enable sentencing remarks to be published. (Paragraph 97)”

The cost and difficulties associated with accessing transcripts is an access to justice scandal so it’s good to see it addressed here. The Lammy report of 2017 suggested the publication of sentencing remarks but nothing ever happened to progress that (at least publicly). Again, my comments about court user impact need to be considered. Lammy also recommended extending the ‘sealing’ of some court records to assist rehabilitation, which opens a question about how to balance transparency and access to sentencing remarks with offender rehabilitation? Would the remarks be available for only a temporary period?

“29. We are concerned over whether the Ministry of Justice has allocated sufficient funding to ensure that the court reform programme can overcome some of the barriers to public and media access to information on courts. We ask the Government to provide a status update on any ongoing projects that are designed to enhance open justice, outlining how much funding has been allocated to deliver them and providing a date by which they will be completed. (Paragraph 98)”

“32. HMCTS should commission an evaluation in June 2023 to examine how the new [remote courts] framework has worked in its first year of operation. (Paragraph 110)”

It’s been a great disappointment that many aspects of open justice have been overlooked in the court reform programme and that there has never been any overarching and comprehensive public consultation on how open justice mechanisms should look. More transparency and accountability on the new framework is needed. 

“35. More widely, we recommend that HMCTS and the Judiciary commission research to determine which civil and criminal proceedings could be suitable for broadcast and video archiving. In principle, we would support the extension of broadcasting and recording to civil trials that do not involve oral evidence. In the criminal context, the broadcast and recording of sentencing in Magistrates’ courts could also be beneficial. However, we do not support the broadcasting of any elements of criminal trials other than the sentencing remarks of the judge. (Paragraph 119)”

This is the longstanding debate over broadcasting of court proceedings – despite my interest in open justice, it’s an aspect I haven’t written on directly. My instinct is to be aligned with the committee’s recommendations here – certainly in the absence of further robust and independent research (including in jurisdictions where more extensive filming takes place).

“39. The Government should review the procedure and seek to enhance its [Single Justice Procedure] transparency by ensuring that any information that would have been available had the cases been heard in open court is published in a timely fashion. (Paragraph 130)”

This is an issue that journalists have been very concerned about, as SJP has been rolled out and expanded. Again, I think there’s a tension with individual privacy and rehabilitation rights that needs to be factored into the design of any publication system.

“40. The Government should clarify and strengthen the governance structures on open justice. The Senior Data Governance Panel should be formalised and its powers and remit should be defined and published. It is vital that the decisions made by the Panel are as transparent as possible. The positive work of the Media Working Group should be built upon and it should be empowered to make recommendations that are then considered and decided upon by the Senior Data Governance Panel. A separate court information user group should be established to represent the interests of groups other than the media, such as court observers, NGOs, researchers and law tech that can also make recommendations that are considered and decided upon by the Senior Data Governance Panel. (Paragraph 134)”

And last but certainly not least: data governance and user consultation. It’s been disappointing to have heard so little about the work of the SDGP. As several respondents noted, it must be put on a more formal footing and made more transparent. This would play an invaluable role in addressing some of the transparency/privacy tensions I have referred to in this post. And the committee calls for a court information user group, which was the main ‘ask’ I made in my oral and written evidence, so I am very pleased to see it make the cut. While the media plays a vital public interest role in communicating the work of the courts, other public voices are important too – those from NGOs, academia and legal industry – as well as other sorts of participants in court proceedings. 

The final part of the report’s conclusion is dedicated to the Family courts, and I direct you to Lucy Reed’s post at the Transparency Project for an expert commentary on those aspects.

In sum, a welcome and important report which pays attention to practical realities and makes sensible recommendations to Government. It does overlook some of the tensions at play in the move to systematic digital dissemination of court data (and privacy and equality impacts in particular), and to that end more research and policy development is needed, drawing on the work of The Legal Education Foundation, Connected by Data, the Open Data Institute and other organisations with expertise in data governance and access to justice/social equality. I – and other collaborators in the field – would be very willing to be part of this exercise through a new court user information group, should the Government take up that recommendation.

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/@jtownend. More about her policy work here.

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