Garden Court Chambers responds to Call for Evidence document: Open Justice, the way forward

Around a third of chambers’ members practise in criminal law, another 39 in family law and the remainder in civil law, comprising public and administrative law, housing law, inquests, immigration, civil liberties, and community care. In our practices we act predominantly for individuals or not-for-profit organisations. A large part of this work is either legally aided or, in the case of not-for-profit organisations, pro bono or with the benefit of a protective costs order. Some is conducted on conditional fee arrangements.

Although not always “high value” in monetary terms this work is invaluable for the individuals and organisations concerned and can often have wider public interest implications, playing a key role in access to justice often for disadvantaged groups, in ensuring equality before the law and in maintaining the rule of law by holding the executive and other public authorities to account.

Significant cohorts of the clients we represent face barriers in access to justice and effective participation in legal proceedings arising from factors such as physical or mental disability, race and ethnic origin, language, gender, education and social class. Many have a past experience of violence and abuse and are victims or potential victims of serious human rights violations in the UK and/or abroad.

For the purposes of brevity, we have removed the questions we did not respond to.

Questions on open justice

1. Please explain what you think the principle of open justice means.
Our understanding of this principle is ability for all members of society to observe the judicial process, with a number of legitimate exceptions. Open justice further is the ability of the public to obtain judicial decisions and sentencing remarks enabling people to understand the decisions courts have reached.

2. Please explain whether you feel independent judicial powers are made clear to the public and any other views you have on these powers.
We do not, as there is a large majority of the public who do not believe the powers exercised by the court, are done independently or without political influence especially the politically controversial cases. The misconception held by the public is encouraged / furthered by the manner in which members of parliament, local government and the tabloids attack judicial decisions when an adverse decision occurs. We are particularly concerned at the propensity of politicians, supported by sections of the media, to attack immigration lawyers and to create a hostile environment for lawyers engaged in upholding the rule of law.

3. What is your view on how open and transparent the justice system currently is?
Whilst the vast majority of the judicial systems is in principle open and transparent, on a practical level it is vastly opaque. This is arises for the following reasons;

• a) The vast majority of district judge chambers, and court rooms do not have a ‘public gallery’ or somewhere members of the public can watch the hearing.
• b) How matters are listed, means unless you have an understanding of how matters are listed it is not apparent what proceedings are listed for and what the issues in the specific cases are. This makes it more difficult for the public and the press to understand what cases are of public importance.
• c) The vast majority of decisions, remain unpublished and there is an inconsistency between jurisdictions as to when a judgment is published or placed on either bailli / judiciary.uk.
• d) There remains the use of antiquated language in certain applications, which makes it difficult for members of the public / interested parties to follow.

Questions on listings

6. Do you find it helpful for court and tribunal lists to be published online and what do you use this information for?
It is useful for us as practitioners for this to be published online, but for members of the public, whilst it means they can identify what is listed in a specific court or before a certain judge, they do not know what the case is in court. More information, in the vast majority of cases could be included within the listing to enable greater openness. This is something which is solely occurring the court of protection and there is no reason, why this approach could not be adopted over the vast majority / if not all jurisdictions.

7. Do you think that there should be any restrictions on what information should be included in these published lists (for example, identifying all parties)?
Yes, when there is a vulnerable party/person in the proceedings details that would enable them to be identified should not be placed on the published lists. Vulnerable people include;

• a) young persons under the age of 18,
• b) people who lack capacity therefore are vulnerable,
• c) details of parents in matters in the family court concerning contact with children or public law proceedings under Part IV of the children act,
• d) people whom have asylum claims, mental health applications, social security applications before the tribunals;
• e) other circumstances that might satisfy the criteria for an anonymity order under CPR 39.4, such as fear for personal safety, having been subject to domestic abuse, sexual or other violence, or disclosure of irrelevant and highly personal details.

Any addresses, dates of birth or other personal information like this should not be published to the general public as there would be a serious risk of fraud, scam callers, or harassment of an individual if the information became open to the public at large. It would highly likely amount to a breach of GDPR.
As to what additional information could be published as to the details of the cases, as in the court of protection, the following are examples of what could be published to the public at large;

• a) in children contact cases the listing could say: the application concerns whom a child should live with and what school they should attend.
• b) Immigration: challenge to refusal to issue spousal visa.
• c) High Court Judicial Review: application to challenge Rwanda Policy on the following grounds…
• d) Criminal Courts: plea and case management hearing, in a case where Defendants are charged with Grievous Bodily Harm.

Questions on accessing courts and tribunals

12. Are you aware that the FaCT service helps you find the correct contact details to individual courts and tribunals?
No

Questions on remote observation and livestreaming

14. What are your overarching views of the benefits and risks of allowing for remote observation and livestreaming of open court proceedings and what could it be used for in future?
The benefits to allowing remote observation and livestreaming is increasing the openness of the court proceedings, and therefore a greater understanding as to what takes places in our courts. This educational benefit to the public as a whole is a significant benefit. Further, it increases the ability of interested parties and/or the media to attend the hearings as it significantly reduces the costs of attending such hearing.

The overarching concern is the fact that it is significantly more difficult, indeed impossible, for a court to prevent proceedings being recorded and/or photographs being taken. The reason for this is firstly, there is no security search undertaken as would occur if they were attending in person. Secondly, it is possible to record images / video / audio on most smart devices covertly without the court or parties being aware this is taking place. Thirdly, there is a limited ability for the court to in circumstances when they believe a recording has taken place, to check the device.

A further concern is around the risk proceedings will be reported inaccurately or incorrectly. Individuals / members of the public are not regulated like members of the press, legal professionals, court reporters who have to accurately reflect what has occurred before a court.

We have recent experience of a lengthy Tribunal trial conducted entirely on-line. Quite properly, members of the public were permitted to observe and not to participate. However, they could not be prevented from accessing the “chat” function. Although they were reminded, at the beginning of each sitting, that the chat function should only be used for technological queries, there were several instances when observers commented on evidence, submissions or indeed on the individual lawyers and/or witnesses in the chat function. This was highly inappropriate and thought should be given to ensuring that observers cannot comment at all, with a different avenue made available for observers to raise technological difficulties.

15. Do you think that all members of the public should be allowed to observe open court and tribunal hearings remotely?
The ability for a member of the public to observe proceedings remotely should always remain as a discretion for the tribunal/court, but we struggle to see the justification as to why the starting point should not be that all members of the public can observe proceedings remotely. The reasons why they should be excluded, should remain the same that apply to anyone who sought to attend the hearing in person.

16. Do you think that the media should be able to attend all open court proceedings remotely?
Yes, as this would provide greater transparency and openness as it would enable them to observe in a day more cases and therefore bring cases of public importance to the attention of the public. As the media, would be subject to professional standards this would address any risks that might arise around what is reported and making sure confidential information is not disclosed.

17. Do you think that all open court hearings should allow for livestreaming and remote observation? Would you exclude any types of court hearings from livestreaming and remote observations?
Yes, facilities should be available to all courts and tribunals to enable them to allow remote observation and/or livestreaming where possible. Save for the restrictions that are currently in place, as to which proceedings can be held in private, no specific cases should be excluded.

19. Do you think that there are any types of buildings that would be particularly useful to make a designated livestreaming premises?
Council Offices or Local Government buildings.

20. How could the process for gaining access to remotely observe a hearing be made easier for the public and media?
Questions on broadcasting

21. What do you think are the benefits to the public of broadcasting court proceedings?
We agree with the comment that a benefit of broadcasting proceedings would be to demystify the court process, and enable people to observe proceedings in circumstances when they do not have smart devices to enable them to attend remotely.

22. Please detail the types of court proceedings you think should be broadcast and why this would be beneficial for the public? Are there any types of proceedings which should not be broadcast?
The following proceedings could be broadcast;

• a) The vast majority of court of appeal hearings, save for those which are so fact specific which means the confidentiality of the parties were required could not be maintained.
• b) Sentencing remarks in criminal cases.
• c) Handing down of judgments – this though would require a change in approach from the court, as when judgments are handed down they are not in fact read out. So there may be cases in which the court may be decide to have their judgment broadcast.
• d) Upper Tribunal and Employment Appeal Tribunal

The following proceedings should not be broadcast for the following reasons;

• a) Criminal Trials (excluding sentencing) – it is difficult to see how a full trial could be broadcast as it would require a significant amount of time and effort to edit or pause the broadcast when inappropriate/offensive/distressing material is discussed. Something which is possible to do for sentencing due to how sentencing remarks are structured. The reality is courts are not designed for live broadcasting, as there would be no way to show what is going on in the whole of the court room, whilst protecting witnesses, jurors right to privacy. Further there is a significant risk confidential / personal information could be shared with the public as a whole.
• b) Family Law Proceedings concerning children and or public law proceedings – this is due to the right of privacy of the parents in such cases, and there is a real risk that if proceedings were broadcast parties may not be able to participate fully and effectively. It would be very difficult for proceedings to be conducted if they were broadcast, as identities would have to be keep confidential and in reality the public would only be able to see the judges’ face as the parties sit next to or behind their lawyers so camera’s could not be focused on the lawyers.
• c) Court of Protection Proceedings – save for proceedings, where reporting restrictions are lifted, all of these proceedings should not be broadcast. Also a number of these cases, like wise with the criminal cases are very distressing and upsetting and broadcasting would be detrimental to the parties and the wider public.
• d) Tribunal Hearings – the vast majority of these hearings involve litigant in persons, whom already find it in the vast majority of cases difficult to represent themselves. Therefore adding in the fact they are broadcast would be infringing on their right to a fair trial and ability to participate fully with the legal process.

23. Do you think that there are any risks to broadcasting court proceedings?
The risks of broadcasting court proceedings include;

• a) Fewer people may be willing to be witnesses and/or give oral evidence, if they are aware they are going to be broadcast on live television. This is particularly concerning for victims of any criminal actions, family or personal matters.
• b) There is an increased risk personal/private/confidential information could be disclosed to the public at large. Which is particularly more problematic if it is being broadcast, as at least currently it occurs in a court room the judge can see who is present and make appropriate orders.
• c) Fewer victims will bring their cases to trial.
• d) There would be a risk of intimidation / retribution following any concluded matter especially in criminal / family proceedings.
• e) Witness intimidation / jury intimidation if they are identified. Whilst it is accepted this can occur currently, there is an increased risk with it being broadcast due to the ability to search them easier.
• f) There is the risk that whilst it may demystify matters, there is also the risk that it may result in things being misreported and/or dramatized by the tabloids/individuals. With the latter not being subjected to a code of conduct.

Questions on public access to judgments

27. In your experience, have the court judgments or tribunal decisions you need been publicly available online? Please give examples in your response.
Practitioners generally use specialist subscription websites. In principle, the decision to make all judgments of higher Courts available on the National Archives website is welcome. We are not able to comment on the effectiveness of the website.

28. The government plans to consolidate court judgments and tribunal decisions currently published on other government sites into FCL, so that all judgments and decisions would be accessible on one service, available in machine-readable format and subject to FCL’s licensing system. The other government sites would then be closed. Do you have any views regarding this?
Having them all in one place would be beneficial as it would mean having to search less locations. But what will need to be done is for all the judgments held on the other sites, to be transferred to the new location. Signposting off the old website/address would also be beneficial, especially to lay parties and litigants in persons.

30. Besides court judgments and tribunal decisions, are there other court records that you think should be published online and/or available on request? If so, please explain how and why.
We think the only other things that should be available online would be the sentencing remarks of any criminal proceedings and/or contempt proceedings. It is unclear as to what other information could be made available and put online.

31. In your opinion, how can the publication of judgments and decisions be improved to make them more accessible to users of assistive technologies and users with limited digital capability? Please give examples in your response.
We have limited experience in relation to this matter, but the key thing would be to ensure the online website is fully compatible with assistive technologies and to ensure if a party requests it, printed versions can be made available to them.

32. In your experience has the publication of judgments or tribunal decisions had a negative effect on either court users or wider members of the public?
It is not clear as to what is meant by negative effect, as any judgment that is adverse to one party, and is made publicly available will potentially have a negative effect. For example, the decisions around the Rwanda Policy, the judgment of Mr Justice Foxton concerning Neil Gerrard (former partner of Dechert), Coleen Roney v Rebekah Vardy. These are high profile decisions, but the same impact is / will be potentially felt by anyone with an adverse findings against them. This should not prevent the publication of judgments and decisions.

We do acknowledge that there will be limited occasions when the publication of judgments can and have placed parties at risk, but our experience is the court & tribunal are very aware of this and put in safeguards where necessary. We believe that the practice of providing anonymity to parties and witnesses is an initial safeguard against negative effects. Therefore, what should remain, is a discretion for a court or tribunal to refuse to publish a decision in appropriate circumstances.

Question on public access to sentencing remarks

40. Do you think that judicial sentencing remarks should be published online / made available on request? If that is the case, in which format do you consider they should be available? Please explain your answer.
We think it would be of assistance is sentencing remarks were made available on line, and they should be in searchable form and accessible on the FCL. The reason why accessibility is important is that it not only informs practitioners and other judges of sentences given, but it ensures a consistency in the approach taken to sentencing. A further benefit, of publishing the remarks, is that it enable the public at whole to understand how the decision was reached by the court, as to the appropriateness of the sentence. It would also enable members of the public, media and other interest parties to raise issues with approaches taken or how guidelines could be outdated and therefore reconsidered.

Questions on access to court documents

41. As a non-party to proceedings, for what purpose would you seek access to court or tribunal documents?
There are the following potential reasons why a non – party may seek access to court or tribunal documents –

• a) Whether the proceedings are raising a similar point they are in similar litigation. Trying to establish if the case sets a precedent, which they have to follow
• b) Just to understand what is going on in a particular case, and therefore report on what is occurring whether that be in a traditional tabloid or social media/twitter etc.
• c) To find out if there is useful information around a research topic they are conducting.

42. Do you (non-party) know when you should apply to the court or tribunal for access to documents and when you should apply to other organisations?
Lawyers/legally qualified persons and the media are aware how to obtain such documents. It is though not clear for lay persons/litigant in persons/interested parties.

43. Do you (non-party) know where to look or who to contact to request access to court or tribunal documents?
Yes, but we are lawyers.

44. Do you (non-party) know what types of court or tribunal documents are typically held?
No, as the rules depend from jurisdiction to jurisdiction.

46. How can we clarify the rules and guidance for non-party requests to access material provided to the court or tribunal?
We recommend the procedure in the court of protection where there is a transparency order provided to anyone who attends any of the hearings which are in public. This could easily be adapted to an order / guidance that is provided to anyone who attends whether remotely or physically. It reduces the need for either the lawyers or the judge to explain to them what is happening and what they are and are unable to do. This also means it is clear what can and can’t be done, meaning there will be less confusion and chance of people innocently breaching any rules.

47. At a minimum, what material provided to the court by parties to proceedings should be accessible to non-parties?
It is not possible to provide a blanket policy which is applicable to all jurisdictions, as they do not have the same documents in all cases and they have different reporting restrictions/provision around confidentiality. But as a minimum, non-parties should have access to a brief summary of what the proceedings are about so that they are able to follow what is occurring in the hearing. This should include access to pleadings, potentially anonymised, and to witness statements once those statements have been adduced in evidence.

48. How can we improve public access to court documents and strengthen the processes for accessing them across the jurisdictions?
One way to do so, is to require the lawyers to be more conscious as to the fact that if they have members of the public or interested parties in a hearing, to see whether any require / seek to see documents. Require lawyers to have copies of certain documents redacted where necessary, so if someone requests them then they can. Additionally provide the ability to share documents with the public, securely but without having to disclose your professional or judicial email addresses.

Questions on public legal education

58. Do you think the public has sufficient understanding of our justice system, including key issues such as contempt of court? Please explain the reasons for your answer.
No. We derive this from the inaccurate speculation and coverage of cases reported in the media. The principal inaccuracies often derive from the media.

59. Do you think the government are successful in making the public aware when new developments or processes are made in relation to the justice system?
No. This particular government prefers to attack lawyers, human rights, and the role of the Courts. That is fundamentally irresponsible of Government.