Open justice has two meanings. The first is the justice to which we have access: of everyone being able to go to the courts to enforce or defend their rights. Open justice in this meaning has long been under attack. Legal aid has been removed or restricted, even in areas such as social security and family matters; court fees have increased, including employment tribunals; and courts have closed. Parliament can pass more and more laws, but citizens are less and less able to rely on legal rights when it matters.
"The fiction is that justice is open unless there is a reason for lack of transparency"
The second meaning of open justice is about justice being seen to be done. Here, public access to information about what is going on in courts is in as much of a bad state as access in the first sense. This is not just because of reporting restrictions in sensitive cases where there is often a public interest in access being limited. It is because of a combination of a culture of secrecy, illiberal rules and casual obstructions. It is quite difficult to find out what is happening even in cases of fundamental public importance. This has real-world implications for the rule of law in the UK.The fiction is that justice is open unless there is a reason for a lack of transparency. This is true in the trivial sense that a person can, in theory, walk into a court building (if they find one open and in session) and sit in on a hearing which is taking place. But that curious visitor will have difficulty knowing which courtroom and the nature of the case in advance, and so it is usually only those who already know about a case or random tourists who ever do turn up. And many minor hearings take place in judges’ chambers where there is no real chance of sitting in (and nowhere to sit if you do).
In the United States, there is legitimate concern over the rule of law and the operation of democratic institutions (see Dahlia Lithwick in this month's Prospect). Yet the “docket” of case documents, containing pleadings and evidence, is often published on the internet, and so anyone can find out about the details of a case before a court. But in England, the court file is kept away from public eyes, and it takes determination, luck and skill for a third party to obtain even the primary statements of case. There can be no good reason for this.
In a rare concession to modernity, the young Supreme Court is filmed, its sessions easily viewable on YouTube if only rarely seen on television news, as are some Court of Appeal hearings. But these remain anomalous in the system they sit atop. There can be no sound recording of other public hearings, while transcriptions of court hearings come late and can be obtained only on paying an extortionate fee. No photographs or sketches can take place in the court precincts, and those famous courtroom sketches have to be done by the artist on the streets outside from memory.
Until recently, the lack of immediate access to court information was offset by court reporters working for local newspapers. By reporting on cases year in, year out, they would learn what was what, and became the prism through which light could reach the courts. But the role is now almost non-existent. And this has the sad knock-on effect that none of the reporters who join national titles now have any practical experience of court reporting.
All this is in the context of fear about reporting live cases. Strict laws of contempt of court and (often misconceived) notions of “sub judice” prevent all but the hardy or indeed the reckless discussing a case as it happens.
The effect of the darkness is that there is little public understanding of the law and of the justice system in the UK. Most people, for example, probably believe UK judges use gavels and UK lawyers say “objection, your honour” when both are ghastly Americanisms. These popular misconceptions are minor quibbles, but the lack of familiarity with the basic processes of the British courts leaves them as an alien world as far as citizens are concerned. And that distance between the citizens and their courts does real damage.
A national newspaper can call judges “enemies of the people” for upholding the supremacy of parliament. Diligent and selfless barristers can be trashed as “legal aid fat cats.” And few will know any different. What many people think they know about the judiciary and lawyers are no more than caricatures. And this in turn feeds into a political and media culture which perversely champions the government over the individual.
There is no single solution to this. There are some glimmers, however: the Court of Appeal and the Supreme Court are doing sterling work in respect of the relatively few cases they hear. But the greater problem is structural and cultural and pervades the routine work of the courts: the public business of courts is generally treated as the private business of those concerned.
Leave the public with no understanding of the justice system, and that system will ultimately be more vulnerable to the sort of assaults now seen in EU states Poland and Hungary, let alone elsewhere in the world. Such attacks do not come out of nowhere. They are more likely to occur in a context where courts are neither seen nor understood, and not in jurisdictions where justice is visible and understood.
The statue of Lady Justice on Old Bailey is not blindfolded. That is another popular misconception. But she may as well be. It is time to take off the blindfolds that prevent access to understanding what happens in our courts.
