The illusion of open justice

The judiciary seem exercised by the future of open justice. They are consulting judges and magistrates on the digital court reform programme and assert that ‘the public should be able to see and hear that which they can currently see and hear in court’.

The problem is that open justice is not a reality now. The public has access to most criminal courts, and many civil courts, but cannot observe most family courts, and many civil cases too. Even if you do want to observe a court, public interest is not exactly welcomed. It is very difficult to work out what is going on, or actually to hear what is happening in many court rooms.

Those who try to take notes are sometimes (wrongly) told they are not allowed, and there is often nowhere to even buy a cup of tea. When I observe magistrates’ courts, there are seldom any other curious members of the public, either in that court-room or in the whole building. There are witnesses and the friends and family of defendants, the occasional student, but seldom ordinary citizens.

Pamela Attfield is a citizen keen to learn more about the system. But her experience makes one wonder if judges really do support open justice. This non-practising solicitor wanted to watch small claims cases in Watford County Court. She failed to get through on the phone to find out what day small claims were heard (no surprise to lawyers here), so had to drop in to the court just to get the information.

She returned to the court on 23rd March 2017 and was told, via the legal advisor, that the Judge presiding over small claims said she was not allowed in the court room on spec. The Judge said Pamela should notify the court in advance, and request permission to attend, which could be refused at the Judge’s discretion.

The indomitable Pamela went home, found a copy of the Civil Justice Council ‘A guide to bringing and defending a small claim’ 2013. This says that ‘members of the public are free to sit in the room and listen’ and that the Judge can order that the hearing be in private only if it is believed that it would be in the interests of justice to do so. Pamela returned to court that day, but was still banned by the Judge from her court room.

Pamela returned the following week and tried again, quoting the guide. This time the legal advisor said the Judge would only let her into the court if she gave her full name and address, and if the litigants agreed to her observing. When she was allowed in, the case turned out to be about parking. At the end of the next case the Judge informed Pamela that such cases were not suitable for being observed because the room was small and ‘because few of the applicants and defendants were represented, the presence of a member of the public made them feel uncomfortable and she would therefore prefer me to attend a different court’. When Pamela returned to the court that afternoon she was banned from observing this Judge’s small claims cases. ‘I was told that they were sensitive matters and that, in any event, it was entirely at the Judge’s discretion and she did not want me in her room,’ she said.

Pamela, having assumed courts were open, was shocked by the whole episode and tried to complain directly to the court. The court suggested she should complain to the Judicial Complaints Investigations Office (JCIO), but they, in turn, said that it was not a matter of judicial conduct

‘The JCIO explained that the judge was entitled to conduct the hearing as she thought was in the best interests of the parties involved. The JCIO stated that judges were entitled to make decisions and manage hearings free from outside interference by officials (including the JCIO), government ministers or other judges, and the judicial disciplinary process could not be used to challenge a judge’s decision. The only way to do so was through the Courts.’

Yes, read that again. The only way for an ordinary person to challenge the seemingly arbitrary decision of a judge to ban them from watching a supposedly open court hearing is to judicially review the decision. It’s incidents like this that fuel the tabloids’ antipathy to the judiciary. In too many areas, judges are, in practice, unaccountable.

The senior judiciary espouse the principles of open justice but they are supporting a court reform programme which will see thousands more criminal cases dealt with through the (totally closed) single justice procedure, and others go on video or online. It is pie in the sky to think that a criminal case dealt with online can ever be as open as one dealt with in court – apart from anything you cannot see the process of decision-making online, just the outcome. Open justice is indeed in jeopardy, both from unaccountable judges and from the new digital system. But who is fighting for justice to be ‘seen to be done’ as well as done?

This article first appeared here and was published on the Justice Gap on May 21, 2018