Open Justice During Lockdown

Open justice. “The words express a principle at the heart of our system of justice and vital to the rule of law… open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse,” as Toulson LJ put it in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] QB 618. Or, per Lord Dyson JSC in Al Rawi and Others v. Security Service and Others [2012] 1 AC 531, “the open justice principle is not a mere procedural rule.  It is a fundamental common law principle.” 

The Coronavirus pandemic poses unprecedented challenges for courts in the UK and across the globe. Unfamiliar technology is being rolled out at speed, of necessity, to prevent justice systems grinding to a halt during lockdown. In many countries, journalists are no longer able to attend court hearings in person, or there are strict limits to the numbers of journalists and members of the public who can do so. Virtual attendance at hearings is working smoothly in some quarters, non-existent in others, and often somewhere in between, with reports of journalists being bumped off Skype connections and audio stopping part-way through a hearing. Access to core documents, such as Skeleton Arguments, may be problematic as journalists routinely obtain them when physically present at a hearing by asking counsel for a copy, and such informal approaches are much more difficult in the online environment. But there are many examples of remote access to hearings assisting journalists: for example, journalist Jim Waterson praised the smooth running of a preliminary hearing in Depp II v. News Group Newspapers:

“As an aside: the British court system livestreamed today’s hearing, journalists were accredited, the judge asked us all to hang up from Skype when court went into closed session, and this was easier to cover in many ways than normal court reporting. Can we keep it post-pandemic?”

Doughty Street Chambers’ media law team has a long and proud history of acting in pioneering open justice cases at every level. We consider it imperative that the vital open justice principle does not get sidelined or undermined by the sudden changes to our justice system required given this public health emergency. As journalist Catherine Baksi has put it, “when the doors of the court are closed, open justice and scrutiny by the press become even more important.”

Today we are launching a blog series focused on open justice during the lockdown. Over the coming weeks we will examine how the open justice principle is faring in courts across the UK, and our members with expertise in other jurisdictions will provide comparative analysis. We hope this blog series will provide a platform to highlight concerns and to share examples of best practice.

In this introductory blog, we summarise the importance of the open justice principle, and we highlight some of the concerns raised by journalists over difficulties they are facing in reporting the courts during lockdown.

The Open Justice Principle

The open justice principle has a long and distinguished history, stretching back to the fall of the Stuart dynasty. Its underpinning rationale and resulting benefits are many: the most commonly cited is that it is integral to protecting the rights of those involved in court proceedings, by enabling scrutiny of the judges. In 1790, Jeremy Bentham put it this way: “publicity is the very soul of justice… It keeps the judge himself, while trying, under trial." But the purpose and benefit of this key principle, “is not simply to deter impropriety or sloppiness by the judge hearing the case." It is far wider than this. It enables the public to understand and scrutinise the justice system, and it is essential to maintaining public confidence in the administration of justice. 

Transparency of the legal process is essential in a democracy, where power depends on the consent of the people governed; “open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse.” 

Open justice is also recognised as having specific further benefits, including that it makes uninformed and inaccurate comment about the proceedings less likely (or easier to rebut if made). Open justice is also inextricably linked to the freedom of the media to report on court proceedings.  Nicol J in Solicitors Regulation Authority v. Spector described two limbs to the principle at [19] - [21]: (a) the public should be free to attend court hearings; and (b) the proceedings are freely reportable. The latter aspect is of critical importance as: “for the overwhelming majority of the public physical attendance at a court hearing is not a practical option” (per Nicol J at [20]). The media acts as the public’s eyes and ears. 

Open Justice in Lockdown

The Coronavirus pandemic has resulted in fundamental alterations to the justice system in England and Wales at breakneck speed. Whilst some court buildings remain open, the objective is to undertake as many hearings as possible remotely so as to minimise the risk of transmission of Covid-19, and this requires very significant changes. HM Courts and Tribunals Service is publishing a weekly summary of its operational position during the coronavirus outbreak every Friday evening, which indicates the scale of these changes. New Protocols have been required to deal with matters such as Custody Time Limits, payment of court fees and listing priorities during the crisis. New guidance has been issued by the senior judiciary in crime, civil and family law, addressing the practicalities of conducting remote hearings, including media access to such hearings and recording hearings. To ensure the safety of those in court buildings, the Lord Chief Justice announced on 23 March 2020 that all new jury trials would be postponed, and a judicial working group has been established to consider ways to restart jury trials once safe to do so. Most inquest hearings have ceased, with a shift to paper-based decision-making.

Given the scale and pace of this change, across all parts of the justice system, technological teething problems are inevitable (as was frankly acknowledged in the Civil Justice in England and Wales: Protocol Regarding Remote Hearings, 26 March 2020, [4]). However, there are many examples of the sudden shift to remote hearings working smoothly, particularly in the higher courts. Live-streaming of Supreme Court hearings is long established, and so the changes required have been very limited (online viewers can now get a glimpse of the Justices’ and advocates’ book collections and home décor). The Royal Courts of Justice Daily Cause List sets out details for representatives of the media who wish to attend a remote hearing.

But there are repeated examples of problems in the criminal courts, particularly in the magistrates’ courts. By way of example:

• Freelance court reporter Josh Mellor described on twitter a tortuous morning in April attempting to secure remote access to a hearing at Wimbledon Magistrates’ Court. He was invited to come down in person, and then had to make written representations explaining why he should be able to attend a public hearing remotely during the pandemic. He waited two hours before getting permission from the court. He was also able only to attend one particular hearing, and he could not dip in and out of different cases to see if there was anything newsworthy. When he got remote access to the hearing, it was difficult to hear, and at the end the legal advisor hung up before he could check certain matters as he usually would. His conclusion? “Overall conclusion of remote hearings at magistrates’ courts is that it’s not good enough yet. It’s difficult to get through, when you do you can’t hear anything, and then you can’t ask the lawyers any questions at the end. I really hope it improves."
• This week, Sian Harrison of PA reported serious difficulties with being able to follow an important hearing: “This case was the appeal against conviction and sentence of Michael "Basil" Seed, one of the men responsible for the Hatton Garden heist - a high-profile case likely to generate interest, and the hearing was mostly inaudible.”

Many journalists have reported frustration with significant cases not appearing on magistrates’ court lists, and there being no way of knowing of their existence until a press release is received after the hearing from the CPS or the police. This issue was raised a month ago on twitter, by Tristan Kirk, the courts correspondent for the Evening Standard:

• “Two announcements from CPS & Met Police - man jailed for stealing masks from hospital, another jailed for coughing at police. It's good they were caught & jailed, but worryingly neither case appeared on magistrates court lists. Open justice can't be served just by press releases.” 

Josh Mellor again highlighted this problem last week, describing what he saw as “the dubious state of open justice” at Uxbridge Magistrates’ court. He was unable to observe a hearing because “they couldn’t dial into Scrubs and virtual court at the same time,” so he missed a hearing which resulted in substantial press coverage about an Uxbridge man who pleaded guilty after spitting at a bus driver and police officer. Mr Mellor said, “now his face has been plastered all over the national news thanks to a police press release allowing the public to pour scorn on him, but where is his side of the story? Where’s his mitigation? The judge’s sentencing remarks?”

A stark example of the importance of open justice, and allowing journalistic access to the courts, can be seen in the first conviction of a person for being outside their home without reasonable excuse. Marie Dinou was prosecuted and convicted under the Coronavirus Act 2020, Sch. 21, but when the case was examined by journalist Fariha Karim of The Times and our colleague Kirsty Brimelow QC it transpired that she had committed no such offence, and her conviction has since been quashed. The case was a significant one, but the press was unaware it was taking place as there was no indication from the listings that the first coronavirus prosecution was to be heard. The case – and thus the error – was only identifed thanks to a police press release, which alerted the journalist to the case, and led to her digging to find out more. Since then, a further wrongful conviction has been identified by The Times, and the CPS has for the first time ever launched a review to re-examine every charge, conviction and sentence brought under the new legislation. Several cases are being relisted so that they can be overturned after being found to have been incorrectly prosecuted. This is a salutary reminder of the importance of open justice letting in the light and allowing the press and public to scrutinise the workings of the law.