During my time as a stagiaire at the European Court of Human Rights, I remember gazing upon the strange building. Standing, as it does, like a huge oil repository, it reaffirmed initially my aversion to modern architecture. However, when a colleague explained that its glass structure represented transparency and accessibility, it suddenly made sense. That court wouldn’t have existed had it not been for British draftspersons, whose creativity contributed immeasurably to the European Convention on Human Rights. It is a natural facet of the British psyche to hold openness and transparency dear to our justice system. It is therefore important that, in an ever-changing technological environment, as judges and the justice system adapt, we ensure that the principle of open justice remains intact.
Openness v anonymity
In the words of Lord Dyson, at paragraph 11 of Al Rawi and others v Security Service and others:
“The open justice principle is not a mere procedural rule. It is a fundamental common law principle.”
In spite of this, there are some suggestions that it is at risk. Commentators recently have been arguing convincingly that open justice is under threat from out-of-touch judges, who are yet to adapt to the impacts of the internet. For example, one report focussed on a recent case where the judge pressured counsel to agree to an anonymous trial, so as to prevent jurors being prejudiced by information reported in newspapers.
The trouble, of course, was that social media had ensured that much of the information at issue was already in the public domain, just as was the case in PJS v News Group Newspapers Ltd. There, the Supreme Court allowed an appeal against the Court of Appeal’s decision to set aside an interim injunction preventing a newspaper from disclosing the details of the case. Lord Toulson realised that the confidentiality aspects were illusory, and therefore stated, in his dissenting opinion, that “the court must live in the world as it is and not as it would like it to be.”
So how should it be? The starting point should be that all civil proceedings are open. That is not to say that there aren’t circumstances where privacy is unjustified. CPR 39.2 makes clear that the general rule is that all hearings should be held in public, but it also provides for private hearings where the court considers that to be necessary in the interest of justice. Most of the criteria prescribed to justify private hearings appear at first glance to be reasonable; for example, matters relating to issues of national security or the protection of children or vulnerable persons. However, jurists should be alert to the risk of “mission creep” in granting privacy or anonymity all too readily. In the criminal sphere, one of the main arguments for not amending the law to grant anonymity to those suspected of sexual offences is that it would contradict the principle of open justice. Just as the principle remains paramount in such circumstances, so it should remain the default position in civil cases, unless there are very strong reasons to the contrary.
In July 2016, the Court of Appeal in Da Costa and another v Sargaco held, in a case involving claims of insurance fraud, that it had been wrong for the judge at first instance to exclude the first claimant from the trial while another claimant gave evidence. As identified in the judgment, the starting point must always be that a party is entitled to be present throughout the hearing of a civil trial. However, the Court of Appeal considered that, as a whole, the exclusion did not render the trial unfair. Although, upon reading the judgment, the reasoning in that case is understandable, it is important to guard against the dilution of the open justice principle. Again, if one looks at the criminal law, the basic right remains that a defendant should be able to face his or her accuser in open court. Should not the same standard apply in civil hearings?
Open justice is relevant to any discussion of Briggs LJ’s final report on the structural reform of the civil courts. Briggs LJ promotes the use of an online court (OC) for claims valued at under £25,000. Are disputes transparent if carried out behind a firewall? If you read the Bar Council’s response to Briggs LJ’s interim report, the point is made that:
“It is fundamental that any proposed system must provide access to justice… It is also vital that the principle of open justice is not lost. The ability of the public to hear argument and see how decisions are reached is an important element of our civil justice system.”
Furthermore, the Law Society has asserted that:
“… the importance of Viscount Hewart’s aphorism that “not only must Justice be done; it must also be seen to be done” remains valid and it will be important that, as an integral part of the roll-out, consideration is given at every stage to the impact on public confidence in the justice system and how this can be maintained, for example though ensuring transparency in decision-making, the visibility of the decision-makers and making engagement with the OC optional.”
Technology offers many opportunities in the legal sphere, as it does in other aspects of commercial life. However, it is important that in moving forward to embrace these opportunities we do not lose sight of the need for transparency in our justice system.
There are so many reasons why the English justice system is viewed as a benchmark across the legal world, but open justice has to be at the top of the pile. As I’ve written before, industry experts will be keeping a keen eye on the programme of court reforms, which includes Briggs LJ’s proposals. No doubt the judiciary, practitioners and academics will rise to the challenges and opportunities presented by technological reform, just as the legal system has adapted in the past to ensure its longevity. In doing so, open justice should be a paramount consideration.