Earlier this year a crown court dismissed fraud charges against Barclays, dealing a potentially fatal blow to the only UK prosecution of a bank for financial crisis-era wrongdoing. Due to restrictions on media reporting, the reasons for the dismissal are unknown, meaning the public has been left in the dark about why the UK’s most significant financial crime prosecution of the past decade has collapsed.
Unfortunately, such secrecy is commonplace in major economic crime cases where linked trials are the norm and judges are fearful of jury prejudice. Indeed, a recent report by my organisation Corruption Watch found that reporting restrictions are far more common in economic crime cases than in other types of criminal proceedings. The majority of foreign bribery trials that have come to court in the past two years have been covered by orders limiting press coverage. The Serious Fraud Office, which is often widely criticised when its cases fail to yield results, is also unable to publicise two major corporate convictions due to blanket reporting restrictions.
In July 2018, Alison Levitt QC, who is being tipped by some to be the next director of public prosecutions, said at an event at the Bingham Centre in London that the judiciary seems to be ‘much more sensitive’ about juries being prejudiced in economic crime cases compared to other types of criminal proceeding.
Levitt noted that the Court of Appeal has repeatedly held that juries can be expected to follow judicial directions not to read media reports, including in highly publicised cases involving preacher Abu Hamza and the murderers of Stephen Lawrence. However, she said that in comparison, judges in less high-profile economic crime cases often diverge from the line of the Court of Appeal, opting for a stricter approach and imposing reporting restrictions that curb freedom of expression.
The over-use of such restrictions is just the tip of the iceberg. Inadequate court lists, which are designed to inform the public when and where cases are being heard, are also seriously undermining transparency in economic crime cases.
Last year a major corruption trial of a World Bank consultant received no contemporaneous coverage in the national media despite revealing details of flagrant and large-scale wrongdoing. During the trial, the jury heard that the consultant took over 60 separate bribes to steer numerous multi-million dollar contracts in some of the world’s poorest countries. Court lists contain so little information that the national media simply did not know that a trial of significant public interest was taking place. In the past year alone, two major corruption trials as well as an internationally significant judicial review have not been covered contemporaneously by the press due to poor court lists.
Even when the press are aware of and able to report on a court case, it is likely that they will find it difficult to do so owing to the inaccessibility of even the most basic court documents.
Despite the Court of Appeal stating that documents should by default be accessible by the public, they cannot generally be obtained in criminal cases without instructing counsel. In civil cases, it usually takes weeks to obtain a single document, a process that involves multiple trips to the courthouse and can cost upwards of £50. Transcripts of hearings are also prohibitively expensive, often costing more than £20,000 for a three-week trial.
Generally, a UK-based reporter can more easily access court documents from any US federal court, which are available online, than from the Royal Courts of Justice in London.
Urgent reform is needed to bring greater openness to economic crime cases as well as the wider court system. At the very least, the government should introduce an online platform for public access to court documents, as well as provide more detailed court lists and ensure that the media is being given sufficient advance notification of reporting restriction applications. It’s worth noting that in many cases, court documents are already available online for lawyers instructed in proceedings.
The ongoing £1 billion transformation of the court system represents a once in a generation opportunity for implementing these open justice reforms.
However, at present the government is only taking tentative steps towards greater transparency. Civil servants have been instructed to focus largely on maintaining current levels of open justice during the £1 billion reform, and only if possible to introduce improvements. A recent Ministry of Justice consultation on the future of the court system also made no mention of the term ‘open justice’.
It seems that the type of full-bodied reform needed to bring proper transparency to the courts is not a priority for this government. This is puzzling as the benefits of open justice are widely noted and uncontroversial, whether it be fuller confidence in the rule of law, better quality investigative journalism or a sharpening of the deterrent effect of court sanctions in economic crime cases.
In the words of Lord Shaw the principle of open justice is a ‘sound and very sacred part of the constitution of the country’. The government should not lose sight of this.
First published July 25, 2018