6Open justice and the rule of law
Open justice
153.Open justice—the public resolution of criminal and civil disputes—is a fundamental principle of the common law. The Court of Appeal confirmed this principle in 2016, when it stated:
For present purposes and shortly stated, open justice is a fundamental principle of the common law; the test for departure is one of necessity—nothing less will do; that test may be satisfied to avoid frustrating or rendering impracticable the administration of justice.257
Our inquiry considered whether, and to what extent, the principle of open justice would be affected by the court and tribunal reform programme.
154.The Lord Chief Justice told us that open justice is one of two features of access to justice, the other being access to courts and tribunals. He continued:
The judiciary have pressed the view, which is being worked into the projects by HMCTS, that the principle of open justice means that the courts must remain as open to public scrutiny after reform as they are now. HMCTS are developing technical solutions to enable public and press access to remote hearings.258
155.The Senior President of Tribunals, Sir Ernest Ryder, has also placed on record his commitment to preserving open justice. In a speech in 2018, he noted the “staggering” numbers of disputes that are being resolved online by private dispute resolution services, such as those used by eBay and Amazon. He went on to say:
When justice slips out of sight … .the prospect of arbitrary, incompetent or unlawful conduct raises its head. Again, if we simply accept the argument that private online dispute resolution is the way in which the majority of disputes, and in some areas all disputes, may be resolved in future we accept this loss of accountability; we further accept the growth of a democratic deficit. And the same is the case if we divert public justice to an unobservable online forum. Our digital courts must be open courts.259
156.Jodie Blackstock from JUSTICE referred to open justice as being “fundamental to public confidence in the administration of justice” because it demonstrates that the system is fair and the law is being applied properly. She saw scrutiny by the media and legal journals as having an important role to fulfil.260 Likewise, the importance of open justice as a fundamental principle of the common law was emphasised by the Equality and Human Rights Commission261 and by Professor Sue Prince.262
157.The value of open justice was also explained by Mark Hanna, a journalist and senior university teacher, who listed several factors: publicity about a court case could lead to additional evidence coming forward; holding proceedings in public helps to ensure they are conducted appropriately, with honest testimony; and greater scrutiny generates public trust in judicial proceedings and supports public education. Jo King JP considered open justice essential to maintaining public confidence in the administration of justice by ensuring accountability, facilitating public censure, educating the public and deterring crime.
158.In contrast, Professor Richard Susskind argued that open justice is not an overriding principle, but one of seven aspects of justice that can pull in different directions. In a low-value claim, it may be contrary to the principle of “proportionate justice” to have parties take time off work to appear in court and incur legal costs worth more than the amount in dispute. Because many people cannot afford lawyers and court fees, there was “a pervasive problem of distributive justice”, in that the social goods of legal and court services are unevenly distributed and generally available only to those of considerable means. According to Professor Susskind, what matters is that court decisions are fair (substantive justice), that the processes are fair (procedural justice) and that participants feel that they are so:
If online courts deliver substantive and procedural justice, I cannot find any countervailing principle of justice that insists we should always favour our traditional system which is accessible to very few and too often disproportionate when it is invoked.263
Preserving open justice in online and video processes
159.HMCTS has stated that it accepts that open justice is fundamental.264 However, the PAC noted concerns among journalists about the impact of the reforms on the concept of open justice and the importance of public and media access to court proceedings, particularly practical issues relating to how journalists access information, court staff and hearings when activities are conducted online.265 HMCTS has stated that it would make lists of forthcoming cases available online and that the results of cases would be available from its Courts and Tribunals Service Centres on request. For proposed fully video hearings, journalists and the public would be able watch using “observation terminals located in viewing areas inside court buildings”.266
160.The then President of the Queen’s Bench Division, Rt Hon Sir Brian Leveson, supported this approach for fully video hearings in the criminal court, suggesting that open justice could be preserved by installing a live link from the video courtroom where the judge is sitting to the court building where the case is listed. As noted previously, case management hearings and bail applications are among the cases that he considers suitable for fully video hearings—but fully video criminal trials are not envisaged.267
161.Within the Tribunals system, much thought has been given to preserving open justice. In an Appendix to his report on The Modernisation of Tribunals 2018, the Senior President of Tribunals summarised the views of the tribunal judiciary that emerged from the Judicial Ways of Working consultation and which now underpin his plans for tribunal modernisation. One of the agreed principles is that tribunal judges “must strive to ensure that our decision making is no less open to public scrutiny than it is at present”. The solution to this issue, now agreed by the Tribunals Change Network and HMCTS, can be summarised as follows:
- to record all Tribunal hearings as the primary ‘record of proceedings’, to identify a recording solution for video hearings and continuous online resolution and to identify which hearings are to remain face to face and open and which are to be digitally open; and
- recordings will be made available to be watched or listened to by members of the public. A protocol for transcript provision will be agreed.268
162.Our inquiry received several submissions raising concerns about the risk of open justice being compromised by online processes and fully video hearings. The Council of HM Circuit Judges stated:
It is extremely important that the progress that has made in terms of transparency of the justice system is not lost through the reform process. The importance of the courts being open to public scrutiny in order to maintain the public’s faith and trust in the system and the judiciary is a fundamental principle of the rule of law.269
163.The Transparency Project accepted that the Reform programme offered huge opportunities to increase transparency and understanding of the justice system. It was, though, critical of lack of public consultation specifically addressing “legal and practical questions of access, observation and publicity of proceedings”. It did, however, note that there had been discussions with small stakeholder groups, such as the HMCTS Open Justice group that advised on guidance for HMCTS staff (published in October 2018) which was restricted to members of the media.270 Taking into account the fact that Supreme Court hearings are available to watch online, as are many Court of Appeal hearings, the organisation stated:
The digital court reform programme has never clearly articulated how the principles of open justice will be addressed when physical courts are replaced by online and virtual processes.271
164.Similar observations were made by Professor Sue Prince from the University of Exeter, who thought it was unclear how the HMCTS Reform Programme intended to preserve open justice. She commented that little detail was available of how public observation terminals would function in practice, and doubted whether these devices would “meet the weighty demands of the principle of open justice.” The Bar Council echoed these concerns:
This throws up many questions about where these terminals will be situated when space is so limited already, about how capacity will be managed when there is high demand from the public to view a particular case, how judges will continue to manage attendance at hearings by those who should not be present […], about the increasingly difficult question of information security, and even about the future of the Rehabilitation of Offenders Act 1974 in a world where a conviction may live permanently online.272
165.The Magistrates’ Leadership Executive, as well as Transform Justice, thought that the principles of open justice had already been compromised by the introduction of the Single Justice Procedure, under which pleas are entered online/on paper and defendants are sentenced on the papers in a closed court.273 Transform Justice expressed concerns about compromises to open justice from online social security appeals and the potential introduction of virtual hearings.274
166.The former Secretary of State, Rt Hon David Gauke MP, told us by contrast that new developments provided an opportunity to enhance open justice:
I do not see that there is inconsistency between using video hearings and having transparency and openness, but we may need to do things differently. We need to take the opportunity, to make it more convenient for people to be able to follow hearings, for example.275
Mr Gauke confirmed the Government’s thinking that people would be allowed to observe fully video hearings from within a court building—although this would be subject to judicial agreement and successful integration of software with courts. While there were sensitivities as to what could and should be shown, “we are clearly moving in the direction of greater openness.” Susan Acland-Hood added: “we will absolutely not tolerate less openness than now, when we have a choice.”276 She illustrated this point by explaining that HMCTS had decided to publish single justice procedure lists centrally online, rather than relying on hard copy print-outs and displaying them at a single court.
167.Open justice is a centrally important principle, and one which helps to maintain the rule of law. We do not doubt the Government’s preference for maintaining public and media access to courts and tribunals, but this appears to be a secondary consideration within its drive for modernisation, and one that we fear may fall by the wayside because of competing priorities in delivering the reform programme.
168.We recommend that, in consultation with the senior judiciary, HMCTS prioritises the development of effective and accessible technical solutions supporting open justice to keep pace with the evolution of digital and video-enabled processes that take justice out of conventional courtrooms.
Open justice and the media
169.Public access to the justice system is only one aspect of the open justice principle. The Transparency Project argued that courts should be accessible to the media, as well as to academic researchers and public interest organisations.277 The University of the West of England expressed concerns that the reform proposals would create further barriers preventing the reporting of the courts by the local media. They noted that: “[t]he number of dedicated Court Reporters on local newspapers is shrinking, and given the distances reporters would have to go to listen in on an online hearing at a booth at Court [this] can impose a further deterrent.”278 Mark Hanna, a journalist and senior university teacher, emphasised the important role of the news media in maintaining the openness and transparency of the justice system; he described journalists who report court and tribunal proceedings as acting as “the eyes and ears of the public.” He argued that, against the background of declining reporters covering court proceedings, particularly in regional newspapers, it was even more important for the HMCTS reforms not to diminish media coverage of judicial proceedings.279
170.Mr Hanna pointed out that there had not yet been any testing of whether journalists could cover fully video hearings as easily hearings in physical courtrooms; in a physical setting a reporter can ask lawyers or legal advisers when they need to check the spelling of names or the wording of charges, and can also make contact with the parties and their lawyers after the case has concluded. In a virtual setting, this would also be more difficult. He was also concerned about potential tension between journalists and members of the public if they had to share the same viewing area/observation terminals. He suggested that, for criminal cases, accredited journalists might have limited access to key case information on the Common Platform (such as the prosecution summary), subject to any reporting restrictions that might apply. He drew attention to the PACER (Public Access to Court Electronic Records) system in the USA, through which most electronically filed documents in appellate, district, and bankruptcy courts are made available, and suggested that, in civil and tribunal cases in this jurisdiction, journalists could have access to the digital record of evidence and case management decisions, subject to privacy safeguards.
171.Media access to court and tribunal proceedings, an important element of open justice, is likely to become more challenging because of digital and video processes. We recommend that the senior judiciary convene a working group to consider how to protect and enhance media access to proceedings, taking into account approaches used in other jurisdictions such as the PACER system in the USA.
Rule of law
172.The rule of law is accepted as a fundamental constitutional principle. The late Lord Bingham of Cornhill, former Senior Law Lord, established eight principles which secure the rule of law, including:
- the law should be accessible and predictable;
- the law must afford adequate protection of fundamental human rights;
- means must be provided for resolving bona fide civil disputes without prohibitive cost or inordinate delay; and
- adjudicative procedures provided by the state should be fair.
173.Several witnesses raised concerns about the potential impact of reforms on the rule of law. The Law Society thought some projects in the programme gave insufficient weight to the need for legal advice or representation, which they feared would impact on the principle that everyone be treated equally and fairly.280 The Criminal Justice Alliance pointed to digital exclusion and suggested that digitisation of the justice system may, without careful planning, undermine the rule of law.281 According to Law for Life, the independence of the justice system, together with low levels of trust in government, make it important that an online justice system presented through gov.uk should signpost to independent sources of information and support.282 The Bingham Centre for the Rule of Law suggested that a user’s perception of the justice system’s independence from government and trust in the system might be undermined by their having to set up an online account via gov.uk, using a webpage with a design similar to those used for government services.283
174.In relation to the reform programme, the legal commentator Joshua Rozenberg has referred to the “legislative drip-feed” that replaced the Prisons and Courts Bill, which fell when Parliament was dissolved in 2017. This Bill would have introduced statutory underpinning for several reforms, including procedure rules for the online court, and provisions for online indications of plea and automatic online convictions.284 The Bingham Centre argued that the court and tribunal reform programme had a “paramount constitutional significance,” and referred to a “democratic deficit” created by failing to underpin the programme by legislation or give it sufficient Parliamentary scrutiny—particularly after the loss of the Prisons and Courts Bill.285
175.The Senior President of Tribunals, Sir Ernest Ryder, accepted that the Bingham Centre had “an interesting hypothesis” and agreed that the transformation programme had significant constitutional implications. However, he did not consider that splitting the Prison and Courts Bill into three or four discrete Bills changed “the overall effect of the legislative umbrella within which we will work.” He also thought that the reform programme had sufficient parliamentary scrutiny—including from the Justice Committee and the PAC.286 He continued:
If you were to put in more scrutiny, you would risk inconsistent and overbearing pressure on those who have to run reform operationally. They are spending a huge amount of their time on that scrutiny already.287
176.Former Secretary of State, Rt Hon David Gauke MP considered that the role of the court system as part of the rule of law was sufficiently central to thinking and communication on the reform programme, but stressed that the court system had to change in response to new technology:
Ensuring that we improve the system and that it is one that works for members of the public is an important part of the rule of law—that there is a means to seek redress or deal with a particular issue in a way that is effective, efficient and user-friendly.288
177.Modernisation of the court and tribunal system has potential constitutional implications which merit the scrutiny of Parliament.
178.Given the importance of preserving and communicating the independence of the justice system from the Executive, we recommend that existing access to online justice processes only via the gov.uk website be discontinued and replaced without delay.
257 Times Newspapers Ltd v Abdulaziz [2016] EWCA Crim 887 (08 July 2016)
259 Sir Ernest Ryder, Senior President of Tribunals. “Securing open justice”. Max Planck Institute, Luxembourg, 1 February 2018.
260 Q233
261 CTS0075
262 CTS0061
264 See HMCTS press release: New media guidance issued to all court staff, 24 October 2018.
265 House of Commons Committee of Public Accounts. Transforming courts and tribunals, Fifty Sixth Report of Session 2017–19, 20 July 2018, HC 976, para 22
270 The Transparency Project (CTS0021) and Guidance to staff on supporting media access to courts and tribunals, HMCTS
284 Two bills have been introduced into Parliament. The Courts and Tribunals (Judiciary and Functions of Staff) Bill, which received Royal Assent in December 2018, introduces greater flexibility in the deployment of judges, and allows suitably qualified court and tribunal staff to handle straightforward matters under judicial supervision. The Courts and Tribunals (Online Procedure) Bill would establish a new Online Procedure Rules framework to support the use of online procedures in civil, family or tribunal cases, together with an Online Procedure Rule Committee (OPRC).
285 Dr Jack Simson Caird from the Bingham Centre elaborated on the Centre’s thinking at the seminar that we held on the evaluation of court and tribunal reforms. A note of this event is appended to this report.
Published: 31 October 2019