Open justice rises up the agenda

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Category: Law Commentaries

Created on Friday, 04 October 2013 00:00

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Open justice rises up the agenda

Supreme court president says judges should avoid closed sessions as lord chief justice sends new instructions to courts

Joshua Rozenberg

Open justice is "a fundamental feature of the rule of law in any modern democratic society", the most senior judge in the UK said on Wednesday.

Lord Neuberger, president of the supreme court, told reporters that all judges should minimise the extent to which it was necessary for them to sit in closed session. Courts should also do all they could to mitigate the unfairness of a closed hearing. And Neuberger applauded press campaigns aimed at improving openness in the courts.

A day later, the new lord chief justice, Sir John Thomas, cited one of Neuberger's decided cases in new practice directions that he issued for the criminal courts of England and Wales. These instructions to courts take effect from the beginning of next week.

The case was one in which the Guardian won the right to see documents used in criminal cases. Sitting in the court of appeal last year with Lord Justice Hooper and Lord Justice Toulson, Neuberger overturned rulings by two lower courts and ordered the release of material sought by this newspaper in the course of an extradition hearing. Quoting Toulson, Thomas's practice directions say that open justice is a principle "at the heart of our system of justice". There are exceptions, but these have to be "justified by some even more important principle". And it was not the job of a court to make editorial judgments based on how much material was available already to the media.

Court rules say that basic information must normally be provided on request, such as the identity of the lawyers and the judge or magistrates. Disclosure of other documents is a matter of discretion but copies should normally be provided of documents that are read aloud or treated as if they are read aloud in their entirety. These include experts' reports, skeleton arguments and written submissions.

What happens when only part of a document has been read or summarised aloud? That may happen when a written statement is used instead of oral evidence. If a copy is requested by a member of the public, the court should consider whether it is proportionate to make a party provide an edited version of the document. If the request comes from an "accredited member of the press", the reporter may be shown the whole document on condition that matters not read out in court are not used or reported.

What, though, is an "accredited" member of the press? Many reporters carry a widely recognised press card issued by a group of media organisations. But some of the most incisive reporting and commentary on legal matters these days comes from academics and practitioners writing on blogs and other websites. They don't carry press cards.

The practice directions get round this problem quite neatly by saying that if an application for access to information is made by legal representatives instructed by the media, or by an accredited representative who is able to produce a press card, "then there is a greater presumption in favour of providing the requested material". The authority given for this principle is a ruling by the European court of human rights in 1991 that the Guardian and the Observer had been wrongly prevented from reporting the memoirs of the former MI5 officer Peter Wright once his book, Spycatcher, had been published in the United States. More broadly, the practice directions provide a fascinating overview of criminal procedures in England and Wales. It comes as no surprise to find that defendants are entitled to be present when tried in the crown court. But they are not required to attend and the court has a discretion to hold or continue a trial in the defendant's absence. The directions set out the circumstances that the court should take into account before proceeding without the defendant.

Special care is needed when police officers, prison officers or staff working for prosecuting agencies are called to serve on juries. The court needs to ensure they have no links with the defendant. If a juror has difficulty in reading the oath, the judge should consider whether there is likely to be written evidence that would cause the juror difficulties.

There are detailed arrangements for vulnerable witnesses. They may be shown photographs or video recordings of the rooms in which they will be asked to give evidence using live links. When vulnerable defendants are on trial, courts may restrict attendance by members of the public – though facilities for reporting the proceedings must be provided.

Any party or witness is entitled to use Welsh in any magistrates court in Wales without prior notice. The law does not permit the selection of a jury whose members speak Welsh. If a defendant in England wishes to give or call evidence in Welsh, the case should not be transferred to Wales. Instead, an interpreter should be provided.

These directions are likely to answer pretty well any question that may arise in criminal proceedings – except one. What should the court do if a defendant insists on wearing a full-face veil, or niqab? On this, the directions are silent.

But we do now have an authoritative ruling on this from the president of the supreme court. As Neuberger said, "it all depends on the circumstances".

Source: The Guardian.com, Friday 4 October 2013