Written evidence from Public Law Project

 

  1. Public Law Project (PLP) is an independent national legal charity. For 30 years, PLP’s mission has been to improve public decision-making and facilitate access to justice, through a mixture of casework, advocacy and research. PLP’s vision is a world in which individual rights are respected and public bodies act fairly and lawfully.
  2. Since 2017 public law and technology has been a specific focus area for PLP, including conducting empirical research, scrutinising developments and hosting events in the area of online courts. In April 2018 PLP published a research report, The Digitalisation of Tribunals: What we know and what we need to know,[1] and in June 2019, PLP’s Deputy Legal Director Sara Lomri gave oral evidence to the Justice Select Committee’s inquiry into court and tribunal reforms. More recently, in April 2020 PLP hosted an event on the changes to courts and tribunals due to the COVID-19 pandemic entitled, Remote Justice? Access to courts and tribunals during the pandemic, and published two pieces of empirical research on the use of online courts in the context of the Administrative Court and the First-tier Tribunal (Immigration and Asylum Chamber).[2]
  3. This submission draws on our experiences of observing remote hearings during the first wave of the COVID-19 pandemic in the UK in order to respond to Terms of Reference numbers two, three and five. We observed these hearings as researchers, but our pathway to accessing them as members of the public was the same as that taken by members of the media.

ToR 2: What barriers there are to the media obtaining information from the courts 

  1. As part of PLP’s empirical research into Judicial Review during the COVID-19 pandemic,[3] we observed four remote judicial review hearings between 7 and 14 May 2020, in order to understand how remote hearings were working in practice. Between 23 and 29 April 2020, we also observed 13 immigration bail hearings in the First-tier Tribunal (Immigration & Asylum Chamber), as part of our empirical research into online immigration appeals.[4] These experiences revealed a number of barriers to us obtaining information from the courts and observing remote hearings.
  2. To gain access to remote judicial review hearings, we had to view the daily cause list when it was published online the afternoon before a hearing, identify the hearing we wished to observe and then email the contact given on the court listings. They would then respond with the relevant joining details. In our experience this contact was generally either a specific clerk or the generic listings office email address. We had hoped to observe more hearings, but on a number of occasions there was either no response or a late response from this designated email contact. Whilst this was during the first wave of the COVID-19 pandemic when remote hearings were a relatively new phenomenon in this context, we are concerned that access to observe remote hearings rests on an extremely timely response from either a generic email address, or a clerk who is no doubt experiencing significant email traffic.
  3. The wording associated with the invitation to observe as a member of the public in the Administrative Court could be misleading to anyone, including researchers, students or other interested persons, who are not members of the media but who wish to observe a hearing. Next to remote hearing listings at the Royal Courts of Justice, it reads: ‘[i]f a representative of the media wishes to attend a remote hearing they should contact the listing office and then gives the relevant email address.[5] There is no mention of other legitimate interests in observing a hearing. Open justice is a much wider principle than media access to courts and cannot be narrowed to this one, albeit very important, interest.[6]
  4. To gain access to remote immigration bail hearings, we followed a similar process to that described above for the Administrative Court. A key difference was that listings in the First-tier Tribunal (Immigration & Asylum Chamber) do not include a point of contact for members of the public wishing to observe hearings. Instead, they simply state that ‘[a]ny other person interested in joining the hearing should contact the relevant hearing centre directly so that arrangements can be made.[7] We were able to contact the relevant person only by already being aware of the email addresses of the bails listings teams at the hearing centres we wanted to observe. Other members of the public who wish to observe hearings may not already have this information.

ToR 3: What could be done to make information on court cases more transparent and accessible

  1. First, court and tribunal listings need to be updated with sufficient time before the end of the working day for an observer to contact the listed email address and receive a response. Trying to secure joining details on the morning of a hearing is not always successful and therefore risks restricting public access to hearings.
  2. Second, to assist with this timely response, the email contact should be considered carefully and always clearly identified on listings. A central point of contact for observation requests may assist with dealing with requests efficiently. Alternatively, if this would slow the process down, it should be the relevant court clerk that is listed, rather than a generic email address, and they should be briefed to expect such requests and know to respond to them promptly. A pre-determined subject line given next to their contact address on listings may also assist in recognising these requests and prioritising them. This is already the practice at Birmingham Administrative Court, where they suggest observers use the following subject line: ‘MEDIA/PUBLIC ACCESS REQUEST – (case name e.g. Smith v Jones) – (hearing date)’.
  3. Third, the wording of these invitations to observe must always reflect the full principle of open justice, including reference to other members of the public as well as the media. It must be a meaningfully accessible pathway for all members of the public and not reliant on professional contacts.
  4. Fourth, public observers need to be able to access relevant court documents, as they would be able to at an in-person hearing. It is important that there is a clearly identified point of contact for observers to request this information and the relevant documents are sent in reasonable time. The Civil Procedure Rules (CPR 5.4C) allow a non-party to proceedings to obtain from the court the statement of case and any public judgements or orders, as well as, if the court gives permission,a copy of any other document filed by a party, or communication between the court and a party or another person.’ Open justice demands that this be upheld for remote proceedings as well.

ToR 5: The effect of court reform and remote hearings on open justice

  1. Ongoing court reforms and the rapid expansion of the use of remote hearings have presented both challenges and opportunities for the maintenance of open justice. Digital technology certainly has the potential to enhance open justice if accessibility is improved in line with the recommendations we make here. Removing the need to travel to court can not only benefit the parties to the proceedings, but lay observers and members of the media too. For this reason, we would recommend that for hybrid remote hearings where the judge sits in open court, observers should still have the option of observing the hearing remotely via the video conferencing platform.
  2. The Police, Crime, Sentencing and Courts Bill and the Judicial Review and Courts Bill both indicate that the expansion of the use of remote hearings during the COVID-19 pandemic is to be continued beyond the pandemic. The former makes specific provisions for the remote observation and recording of court proceedings and the latter for civil, family and tribunal cases to be progressed online, including through the use of remote hearings. It will fall to secondary legislation and the implementation of both Bills to detail how open justice will be upheld and public access, including but not limited to media access, will be secured.
  3. In light of these developments, for open justice to be upheld there may be a need to provide additional guidance or training to judges about in camera hearings and reporting restrictions. Research suggests that judicial discretion in granting in camera hearings or reporting restrictions may become more commonplace as a precautionary measure, if they are concerned about footage or documents being published online.[8] If the use of remote hearings is to be further expanded, honest and evidence-based guidance around the risks and benefits of public access to remote courts may be needed to avoid a possible chilling effect on open justice.

October 2021


[1]Thomas, R. & Tomlinson, J. (2018) The Digitalisation of Tribunals: What we know and what we need to know. https://publiclawproject.org.uk/resources/the-digitalisation-of-tribunals-what-we-know-and-what-we-need-to-know/

[2] Tomlinson, J. et al (2020) Judicial Review in the Administrative Court during the COVID-19 pandemic. https://publiclawproject.org.uk/content/uploads/2020/04/200420-JR-during-COVID-19-Research-paper-for-publication-final.pdf; Tomlinson, J. et al (2021) Judicial review during the COVID-19 pandemic, Public Law, January, 9-19; Hynes, J. et al (2020) Online Immigration Appeals: A Case Study of the First-Tier Tribunal.  https://publiclawproject.org.uk/content/uploads/2020/08/200825_Online-Immigration-Appeals_FINAL.pdf

[3] Tomlinson, J. et al (2021) Judicial review during the COVID-19 pandemic, Public Law, January, 9-1.

[4] Hynes, J. et al (2020) Online Immigration Appeals: A Case Study of the First-Tier Tribunal.  https://publiclawproject.org.uk/content/uploads/2020/08/200825_Online-Immigration-Appeals_FINAL.pdf

[5] See: https://www.gov.uk/government/publications/royal-courts-of-justice-cause-list/royal-courts-of-justice-daily-cause-list#administrative-court-daily-cause-list

[6] Bosland, J. and Townend, J. (2018) Open justice, transparency and the media: representing the public interest in the physical and virtual courtroom. Communications Law, 23 (4). pp. 183-202.

[7] See: https://www.gov.uk/guidance/immigration-and-asylum-daily-court-lists

[8] Bosland, J. and Townend, J. (2018) Open justice, transparency and the media: representing the public interest in the physical and virtual courtroom. Communications Law, 23 (4). pp. 183-202.