The Transparency Project is a registered charity (no. 1161471) whose objects are, in summary, to make family justice clearer. For further information see its website, http://www.transparencyproject.org.uk/.
This response has been prepared by Paul Magrath, Incorporated Council of Law Reporting for England and Wales (ICLR), trustee of the Transparency Project.
In line with our charitable objectives, this response focuses on the parts of the Bill dealing with the courts, and in particular on matters relating to open justice and transparency, lay participants and litigants in person, and public legal education. These constitute “other human rights concerns”, thereby falling within the scope of the committee’s Call for Evidence.
The right to a fair hearing enshrined in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms imports the notion of access to justice in a wider sense, which includes access to information and understanding about the justice system. Article 10 (freedom of expression, including the right to impart and receive information) is also engaged in the principle of open justice.
On the other hand, the need to ensure the proper administration of justice, particularly in the context of matters of privacy and confidentiality, necessarily engages Article 8 as well, and other articles of the Convention may also be engaged in particular cases.
Part 12 of the Bill is concerned with the courts and court procedures. This substantially re-enacts and extends some of the temporary provisions introduced by the Coronavirus Act 2020 designed to enable remote hearings to be live-streamed or recorded, thereby enabling such hearings to take place while respecting the principle of open justice, while also providing safeguards against the risk of unauthorised recording or broadcasting of such hearings. Our observations on these provisions are primarily informed by our observation and experience of the position under the existing Coronavirus Act regime.
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 at least 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 specified categories of individuals such as the media 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 there is an assumption that providing access to media reporters is sufficient to constitute, or is equivalent to, open justice. This is made explicit in Practice Direction 51Y, inserted into the Civil Procedure Rules (CPR) under the 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 scope of access should include legal bloggers, for example, such as those the subject of the pilot established by Family Procedure Rules (FPR), Practice Direction 36J, commencing on 1 October 2018 and currently set to run until 31 December 2021. 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.
Court Listing
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 – and requests for links not always responded to in time to enable attendance.
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 29 May 2020: https://www.transparencyproject.org.uk/open-letter-from-ngos-and-academics-on-open-justice-in-the-covid-19-emergency/)
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.
Another assumption that is often made is that open justice is achieved 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 level of transparency and accountability – though publication rates are very low and publication distribution patchy. 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.
Moreover, it is apparent that even the publication of judgments is not being managed in a consistent and comprehensive manner. See the submissions of the Media Lawyers Association and the Press Association to the Transparency Review which is ongoing under the leadership of the President of the Family Division: https://www.judiciary.uk/announcements/update-family-divisions-transparency-review/)
Consideration should be given to properly funding a permanent central archive of judicial material. (There is some evidence that this may already have been considered: see Law Society Gazette, Government considers plans to create national hub for court judgments https://www.lawgazette.co.uk/news/government-considers-plans-to-create-national-hub-for-court-judgments/5108426.article )
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.
CPR Practice Direction 51Y (made under the current legislation) 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.
One of the great open justice success stories of recent years has been the retention of recordings of live-streamed hearings in the Supreme Court and the Court of Appeal, which provides live access to observers and “catch-up” access via YouTube. The temporary provisions of the Coronavirus Act have not, however, been interpreted as permitting any extension of this benefit to other hearings: see, for example, R (Good Law Project and others) v Secretary of State for Health and Social Care [2021] EWHC 346 (Admin) (which we wrote about here: The PPE procurement case: transparency missed in both politics and law https://www.transparencyproject.org.uk/the-ppe-procurement-case-transparency-missed-in-both-politics-and-law/ )
We would recommend that thought is given to further amending sections 85A and 85B of the Courts Act 2003, and/or rules of court to enable courts to permit the recording of hearings for subsequent public access.
Recent cases have illustrated the need for a clearer approach to the provision of access to court and tribunal documents: see
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.
Concluding remarks
There is more detailed information on a number of the topics canvassed above in our response to the President of the Family Division’s call for evidence and submissions to the Transparency Review, linked here: https://www.judiciary.uk/announcements/update-family-divisions-transparency-review/
15/05/2021
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