I was preoccupied by whistleblower and source protection issues last week (more on that soon) so I haven’t had as much time as I’d like to look at the new Prisons and Courts Bill, published on Thursday (23 February). As anticipated, many of its features raise issues for courts access – both physical and virtual.
Though I am yet to consider the Bill documents in full detail, I am concerned at this stage that the proposals in the draft legislation and accompanying documents that impact on physical and digital courts access have not been subject to open and thorough public consultation. I also think it’s important that this is not understood as a black-and-white open justice issue: while access to courts information is crucial, there are also important issues relating to privacy and rehabilitation of offenders to address – an important policy discussion that hasn’t happened to date.
In the coming weeks, I’ll provide more detail and comment but in the meantime, here is a quick overview of the aspects salient to courts access.
The government has published a bill that covers prison safety and reform, court reform, the judiciary and whiplash compensation. Of relevance to transparency and courts access, are its proposals on ‘virtual’ hearings via video or telephone conferencing and ‘online convictions’, whereby offenders charged with some less serious criminal offences, such as train fare evasion, will be able to plead guilty online, accept a conviction, be issued a penalty and pay the penalty.
Prior to the Bill’s publication, there has been some – limited – discussion about the extent to which these sorts of proceedings would be open. There had been public discussion about the possibility of physical ‘viewing centres’ to allow public access to virtual proceedings. Additionally, in its consultation on ‘Transforming Our Justice System’ including plans for online convictions, the Ministry of Justice touched on the prospect of publishing online listings and results, but without providing full detail. In response to the consultation, At the time I – on behalf of the Transparency Project group – raised concerns about the lack of detail provided and mentioned issues that need further open consultation in relation to transparency and access, as well as privacy and data protection, and rehabilitation of offenders. For other relevant posts on this topic, please find reports of recent events on online courts here and here.
I have not yet scrutinised the bill in detail, but here are some preliminary observations:
- Part 2 of the Bill concerns provisions for virtual hearings. It will enable criminal and civil courts and tribunals to make directions to live-stream a hearing which is not taking place in a physical courtroom. Additionally, the Government intends to make it possible for these to be viewed by members of the public and media using a screen in a court building.
- The Explanatory Notes accompanying the Bill explain that legislative provision is required to create offences that protect participants and prohibit ‘recording or transmitting live-streamed proceedings photography and sound recordings in the context of virtual hearings and live-links’. These are designed to mirror existing offences in physical courts, as provided for in Section 41 of the Criminal Justice Act 1925 (prohibitions on photography in courts) and the Contempt of Court Act 1981 (prohibiting the making of unauthorised sound recordings).
- The Bill appears to contain no direct mention of online listings for virtual or online convictions, though makes reference to these in the Explanatory Notes (paras 33-34), saying that the Government intends to ‘maintain’ transparency by ‘regularising listings and publishing results online’.
Relevant clauses of the Bill (which I will comment on in more detail in due course):
Audio and video technology: criminal courts
- Clause 32: Expansion of availability of live links in criminal proceedings. Schedule 4 (live links in criminal proceedings) has effect.
- Clause 33: Expansion of availability of live links in other criminal hearings. Schedule 5 (live links in other criminal hearings) has effect.
Public participation: court and tribunal proceedings conducted by video or audio
- Clause 34: Public participation in proceedings conducted by video or audio. Schedule 6 (public participation in proceedings conducted by video or audio) has effect.
- Law Society Gazette report on the Bill, focusing on open justice issues
- Prisons and Courts Bill: Overarching documents
- Prisons and Courts Bill: Impact assessments
- Prisons and Courts Bill: Equalities statements
- Gov.uk fact sheet on open justice
- Gov.uk fact sheet on video-links and virtual hearings
- Gov.uk fact sheet on online procedure and online procedure rules committee
- Gov.uk interactive image of a court
Image: Ministry of Justice