The Transparency Project – written evidence (CIC0019)
House of Lords Constitution Committee
Inquiry into the Constitutional Implications of COVID-19
- This is the response of The Transparency Project, a registered charity (no. 1161471) whose objects include the advancement of public legal education and the promotion of the sound administration of justice, particularly in relation to family law. It explains and discusses family law and family courts in England & Wales, and signposts useful resources to help people understand the system and the law better. For further information see its website, http://www.transparencyproject.org.uk/.
- This response has been prepared on its behalf by:
- Paul Magrath, Incorporated Council of Law Reporting for England and Wales (ICLR) and trustee of the Transparency Project
- Dr Judith Townend, University of Sussex and member of the Transparency Project
- We have focused our response to the Call for Evidence on questions of particular relevance to open justice and transparency, data protection, lay participants and litigants in person, and public legal education.
- The initial transition to remote hearings under the coronavirus lockdown was achieved with remarkable speed thanks in large measure to willing and enthusiastic collaboration between practitioners and the judiciary. It was a case of “all hands on deck”, using what one judge called a “smorgasbord” of different approaches and platforms. In doing so, traditional roles shifted, and the implications of this need to be considered and reviewed. For example, the setting up of hearings was often managed by practitioners, using their own software. Practitioners might even be required to manage the recording of the hearing, before passing it to the judiciary for archiving and possible transcription. The decision as to the mode of hearing remained with the judge in each case, but the practical implementation was often managed by the legal practitioners.
- The Transparency Project was one of the organisations assisting in the drafting of guidance, The Remote Access Family Court, which was issued by Mr Justice MacDonald and has been updated several times: see The Remote Family Court – where does transparency fit in?
- Remote hearings appear to have worked well at the higher end of the range, in the senior and appellate courts, where the judiciary and practitioners are well resourced and supported. As the Rapid Consultation report of the Civil Justice Council led by Dr Natalie Byrom revealed, commercial litigation fared well under remote conditions and practitioners remained enthusiastic for its continued use in the future. But remote hearings appear to have worked less well for cases involving lay parties and litigants in person, as several posts on the Transparency Project blog attest.
- It was perceived in some cases that lay parties felt marginalised or ignored in a virtual process that lacks the formal layout and hierarchical geography of the traditional courtroom. The tendency of screen hearings to focus on a smaller number of speaking roles can leave non-speaking participants feeling overlooked. The informality of remote hearings, with participants appearing from sometimes distracting home environments, could rob the proceedings of their due solemnity, particularly in cases of emotive subject matter or involving vulnerable parties. See, in particular, a blog post by Celia Kitzinger, Remote justice: a family perspective.
- Also on the Transparency Project blog: Remote Justice : A Judge’s perspective and Remote Justice: A legal blogger’s perspective.
- There were also issues for those needing technical or learning support: see Socially distanced courts for the digitally excluded
- What works or appears to work for professionals, who may be well furnished with IT equipment, does not necessarily work so well for lay parties and litigants in person, whose equipment, bandwidth, physical isolation, technological ability and attention capacity may not be nearly as good. There are risks of “digital exclusion” which, though anticipated and prepared for by HMCTS in the pre-Covid-19 period of development of online court facilities, could not be implemented under lockdown because they required face-to-face support.
- A major concern for the Transparency Project has been the openness to scrutiny of remote hearings. In principle, a functioning justice system must be observable by third parties – not only by members of the press, but ordinary members of the public, and other professionals such as those working for NGOs or in research. A remote court should be as subject to public scrutiny as a physical court, subject only to the limits of technology.
- This means access to remote hearings should be provided to members of the public on the same basis as to the press, except in relation to matters only accessible to media representatives on the basis of accreditation (such as access to private hearings in family cases, or access to additional listing information in magistrates’ courts).
- At present, however, there is an assumption that providing access to media reporters is sufficient to constitute, or is equivalent to, open justice. This is made manifest in Practice Direction 51Y, inserted into the Civil Procedure Rules under emergency coronavirus legislation, which states: “Where a media representative is able to access proceedings remotely while they are taking place, they will be public proceedings.”
- For a number of reasons that is simply not the case. Even if the media reporters who cover the courts are assumed to be the “eyes and ears of the public”, the fact remains that journalists only cover a tiny proportion of the hearings that take place each day. The decline of court reporting, especially at a local level, is well documented: see for example the Cairncross Review report.
- At a time when many journalists have been laid off or furloughed, by reason of the lockdown, this decline in court coverage is likely to be exacerbated. Moreover, while the interests of the press in covering courts may be to provide public scrutiny and ensure proper accountability, they are just as likely to be the aims of furthering circulation and profitability by finding a sensational story.
- The scope of access should include legal bloggers, for example, such as those the subject of the pilot established by Family Procedure Rules, Practice Direction 36J, which ran from 1 October 2018 and is now being extended until 31 December 2020. This enables three categories of person to attend private family hearings on the same basis as accredited media representatives currently can under the Family Procedure Rules, namely:
- Practising lawyers
- Non practising lawyers working for a Higher Education Institution
- Non practising lawyers working for a registered educational charity whose details have been placed on a list with the President’s office. (The Transparency Project is such a charity.)
- In public proceedings, court observers include academic researchers, students, justice campaigners, charities supporting the interests of prisoners, immigrants, refugees, victims of crime et al, family members and supporters of court participants, as well as interested members of the public; all have legitimate aims in observing court proceedings in civil as well as criminal courts. But it appears possible to exclude them by the assumption that all of their interests are served simply by making the proceedings accessible to accredited members of the press.
- For an example of public interest observation, see the recently established Open Justice Court of Protection Project: https://openjusticecourtofprotection.org/
- See also: Judith Townend, Transparency Project blog, Covid-19, the UK’s Coronavirus Bill and emergency ‘remote’ court hearings: what does it mean for open justice?
- Access to remote hearings, where available to the press and public, is subject to information being provided in the cause lists enabling an observer to join the session. Such information was not, initially at least, being provided in a consistent way.
- Provision for public access is made in legislation and court rules and guidance but, in practice, it has not always been facilitated. This was the subject of an “Open letter by from NGOs and academics on open justice in the Covid-19 emergency”, published on 29 May 2020, which noted that while efforts were being made in some courts to enable non-media public attendance, “In reality, in many cases, members of the public – including many of the signatories to this letter – have encountered severe obstacles when trying to observe the justice process, particularly in the lower courts”. The signatories “urge the government, judiciary and court service to engage with groups beyond the traditional media to improve the public’s ability to see that justice is done”, and to “expand the range of data collected on remote proceedings in order to better monitor experiences of court users, and the implications for fair and equal access to justice.”
- While court lists in the Royal Courts of Justice and Rolls Building have generally been clear about whether hearings are in chambers / private or open to reporters, the provision of access details has sometimes been inconsistent and in some cases non-existent. Court lists for criminal courts and for county courts outside London, usually provided via Courtserve, were generally not providing any such contact details, even for open hearings.
- There needs to be a consistent, standardised approach, enabling anyone entitled to attend or listen in to a hearing (including the public) to find out how to do so, and also to be able to find out more about the case to ascertain whether they might wish to attend it remotely. If the use of remote hearings is likely to continue into the mid to longer term there needs to be a consistent policy and rules and a means of complaining where access is denied: no such complaint/appeal mechanisms currently appear to exist, other than to apply to the court (which may involve fees and other expense). However, it is fair to point out that the listings have recently improved a good deal in the consistency of information they provide about joining for the public as well as the press.
Judgments, hearing transcripts, and recordings
- Another assumption that is often made is that open justice is served by publication of judgments. Where, as in the family courts, the hearings are not open, the publication of appropriately anonymised judgments is a good way of providing some basic transparency and accountability. But for hearings that need not be conducted in private, or do not result in a written judgment, the publication of the judgment is not the complete answer to the question of open justice. Justice must be seen to be done in terms of process as well as result. It is not just the outcome that is under scrutiny, but the administration of justice and the functioning of the justice system.
- Moreover, it is apparent that even the publication of judgments is not being managed in a consistent and comprehensive manner. There is a haphazardness about the way judgments are distributed and revised. This problem long predates the Covid-19 arrangements, but the focus on open justice under lockdown provides an opportunity to recalibrate the importance of maintaining the public record in a consistent way. Where judgment is now merely deemed to have been handed down in open court, at a particular time, it is all the more critical that it should be immediately accessible to public view. Consideration should be given to properly funding a permanent central archive of judicial material.
- Publication of judgments is one aspect of this maintenance of the record. Another is the recording of all hearings, and the preservation and, where necessary transcription, of such hearings. Again, this appears to be being managed in a somewhat haphazard manner, partly by reason of the variety of platform being used.
- Practice Direction 51Y appears to contemplate access to recordings of remote hearings but only (a) on application to the court, and (b) in a court building. Although in theory this offers reporters and researchers an opportunity to catch up with a missed case, it is not apparent how easy this would be in practice, given that it seems to involve physical access to a court.
Access to court documents
- Recent cases have illustrated the need for a clearer approach to the provision of access to court documents: see Dring (on behalf of the Asbestos Victims Support Group) v Cape Intermediate Holdings Ltd  UKSC 38;  AC 629 (SC) and  EWHC 1873 (QB) (Picken J) and Newman v Southampton County Council  EWHC 2103 (Fam);  WLR(D) 473.
- In a physical hearing, it is easy for a court reporter to ask for sight of court documents, such as pleadings, appellants’ notices and skeleton arguments, but no provision is made for such access in the remote hearing environment unless the platform itself provides a way of circulating such material. The civil litigation document management platform, CE File, is accessible to reporters and researchers, and it appears that some search fees have been reduced, but here again there is an opportunity to develop a system in which open justice is baked in. Consideration should be given to a joined up archive of court documents, listing, hearing records and judgment distribution.
Data protection and security
- There are obvious risks, where hearings are conducted remotely, of access to hearings or documents being accidentally provided to the wrong persons. In the early days of the lockdown, there were widespread reports of the risks of “Zoom-bombing” (unauthorised intrusion or posting of content during video-conference sessions) which no doubt strengthened the case for HMCTS in deciding which platforms to approve (Skype for Business and Microsoft Teams, with BT Meet Me for telephone meetings), and to develop and roll out its preferred Cloud Video Platform to all courts as soon as possible.
- In at least one recent case, remote access in a civil High Court hearing was wrongly provided to observers outside the UK without the court’s permission: Gubarev v Orbis Business Intelligence Ltd  EWHC 2167 (QB);  WLR(D) 464 (DC).
- A common problem even in pre-Covid-19 times has been anonymisation errors and the risk of jigsaw identification of anonymised parties in judgments from private family law hearings which have been released for publication under the Transparency Guidance issued by Sir James Munby when President of the Family Division in 2014 (see Practice Guidance: Transparency in the Family Courts: Publication of Judgments  EWHC B3 (Fam);  1 WLR 230 and In re X (A Child) (Application for Reporting Restrictions: Media Notification)  EWHC 1668 (Fam);  4 WLR 116).
- In the context of GDPR and the Data Protection Act 2018, while data processes carried out in performance of judicial functions are excluded from the scope of regulation by the Information Commissioner’s Office, it is not clear how the Judicial Data Protection Panel is managing these risks or dealing with complaints of alleged breaches of data protection in relation to published judgments and other records, and the same issue necessarily must arise in relation to data breaches in relation to remote hearings.
The need for more research
- The Transparency Project would echo and support the urgent plea for more consistent and comprehensive research to be conducted into court users, whether and how they are engaging with the court system, both in relation to physical hearings and online processes. The recommendations were made by Dr Byrom in the CJC report and in her earlier report Digital Justice: HMCTS data strategyand delivering access to justice (Legal Education Foundation).
- For additional covid-related posts on the Transparency Project blog, see http://www.transparencyproject.org.uk/tag/covid/
On behalf of the Transparency Project