Open justice is a dearly held principle in liberal democracies. Being able to see – and read – what goes on in our courts is regarded as a fundamental safeguard so that the public can ensure that they are just and fair. Ensuring information about the courts is in the public domain also helps to inform public understanding of the law and the way the courts work. It is also pretty vital in ‘common law’ jurisdictions like England and Wales, where the case law is the law, that people know about the legal principles that are being developed.
For these reasons, there has been growing concern about the use of private (or ‘in camera’) hearings in the family courts and the Court of Protection. The media, who must apply to court to be allowed to sit in on a case, and are prevented from reporting the details of cases unless the court has given them permission, have been especially noisy in their criticisms. Family justice campaigners have also argued that this prevents the public from knowing about unfairness in these courts (and misbehaviour by public authorities). These claims are difficult for defenders of the system to rebuke, when so much of what goes on is not in the public domain. Privacy in these courts is also problematic for researchers, like myself, who would like to know more about who is using these courts and why. Judges can choose to publish anonymised judgments, but they tend to only where they establish new legal principles, rather than the run of the mill cases the courts hear every day.
But there are some good reasons for holding hearings in private and restricting publicity. These cases concern some of the most intimate, personal, and distressing issues that come before the courts. Cases in the family courts often concern children, including cases where there are allegations of sexual, physical and emotional abuse. The Court of Protection hears cases about a person’s ‘mental capacity’ and ‘best interests’. Very often these also concern allegations of abuse, or they may be about things like a person’s financial affairs, sex life, living arrangements or medical treatments. On the one hand, these are precisely the kinds of issues where we want to know the courts are dealing justly. But on the other hand – who would want the details of such intimate and private matters splashed all over the newspapers? What child would want to grow up with the whole world knowing about childhood allegations of abuse? What adult would want the world to know about their sex life, their medical difficulties, their most personal relationships with others?
The courts have dealt with this issue on a case by case basis, balancing rights to privacy against rights to freedom of expression. The courts have heard from families who actively want their story to be in the news, because they feel they have experienced injustice. They have also heard from people who are bringing agonisingly painful issues to court, where the last thing they want is the media doorstepping them and putting them on the front page. Very often it is difficult to know what the people at the heart of these cases – children, and people with impairments such as dementia or learning disabilities – feel about publicity.
Campaigners for open justice will have been heartened when Sir James Munby was recently appointed as President of the Family Division and the Court of Protection. Munby has long been an outspoken defender of the principle of transparency, and he has picked up pushing through transparency reforms from his predecessor – Sir Nicholas Wall. He has already published two ‘practice directions’ (here and here) about cases where the courts ‘commit’ a person to prison for contempt of court. Courts have powers to use ‘committal’ to enforce their orders, like orders prohibiting people from publishing information about private cases or limiting contact between people. The practice directions build on existing court rules which say that committal hearings should be held in public, and if they are not then the name of the person, the nature of the ‘contempt’ and the punishment should be published. However, the guidance also says that judgments in committal proceedings should be published on the British and Irish Legal Information Institute (BAILII) website so the public can easily find them.
New draft guidance also canvasses views on the routine publication of anonymised judgments in a much larger number of family and Court of Protection cases. Pilot studies suggest this may have resource implications, which may be resisted in a time of austerity. However, I believe this does provide a better way of accommodating the desire for anonymity with the assurances and information offered by greater transparency. This won’t go as far as some campaigners and some sections of the media want, but it is certainly a very interesting start. Watch this space…