Written submission from the Ministry of Justice
1. The Government is committed to the principle of open justice, commonly defined by the axiom ‘justice must be done and be seen to be done’[1].
2. The principle of open justice is underpinned by the common law principles originally set out in Scott v Scott 1913, and in Article 6 of the European Convention on Human Rights, which enshrine the principle that hearings should normally be held in public.
3. Our efforts to ensure the justice system is open and transparent are embedded into the working cultures, procedures, and practices of our courts and tribunals, and within our ambitions for reform of the justice system.
4. The provision of a public gallery within our courtrooms is a key aspect of ensuring open justice. In most circumstances, members of the media have space allocated in the ‘well’ of a courtroom, recognising the media’s vital role in making sure the wider public are informed of individual cases, and see justice being done at a local, national, or international level.
5. Other key aspects of open justice and transparency include the publication of court and tribunal lists; publication of the outcome of High Court and Court of Appeal hearings, orders, or results; publication of judgments; and, the ability to request further information about a case or hearing (such as transcripts, audio recordings, and notes of hearings – depending on the jurisdiction) from the court or tribunal.
6. Appeals in the Supreme Court are broadcast by default and the Court of Appeal also broadcast some of its proceedings. In 2020 the Lord Chancellor, with the concurrence of the Lord Chief Justice, introduced legislation to permit recording and broadcasting of judges' sentencing remarks in the Crown Court but, due to the pandemic, this provision has not yet been used in practice.
7. The increasing use of technology within the justice system is a key part of our efforts to increase openness and transparency. The Government is investing £1.3bn to modernise Her Majesty’s Courts and Tribunals Service (HMCTS). This investment has given us the opportunity to not only maintain the principle of open justice, but also to enhance and expand it.
8. The coronavirus pandemic has accelerated the uptake of technology (and confidence in using it) and has strengthened open justice in a number of respects. As work continues to recover the justice system from the pandemic, we are working hard to make permanent and expand the temporary legislative provisions that were put in place which supported the principle of open justice, while continuing to deliver the HMCTS reform programme. These themes are set out in more detail below.
9. Our staff enable extensive access to court and tribunal hearings and information, resulting in widespread media coverage of our justice system. Despite the additional pressures of the pandemic, the principle of open justice has been maintained due to the hard work, commitment, and diligence of frontline staff and the judiciary, who have kept the wheels of justice turning during an incredibly difficult period. Tribute should also be paid to members of the media; they have similarly worked incredibly hard, in difficult circumstances, to ensure court reporting continues unabated.
10. We recognise that the application of guidance can, at times, be inconsistent across more than 330 courts and tribunals across England, Wales, and Scotland. Where issues are brought to our attention, we work hard to swiftly resolve these. HMCTS is committed to embedding greater consistency in its practices and is continuously improving the service it provides to the media in their day-to-day dealings with courts and tribunals. HMCTS has developed bespoke training for its operational staff and mandated that relevant teams familiarise themselves with HMCTS media guidance (expanded on below) as part of their development and capability training. Supporting the media is also a standard element of the training provided to court ushers.
11. In early 2018 HMCTS established a Media Working Group (MWG) to strengthen its relationship with the media and demonstrate its continued support for open justice via media access to courts and tribunals information and hearings. Working in collaboration with a wide range of media representatives, the MWG helps remove barriers to effective access. Its membership is drawn from local, national, print, digital, and broadcast media, and includes representatives of the Society of Editors and the News Media Association.
12. Its work takes place in the context of a significant decline over the last two decades in both the number of dedicated court reporters and the overall media coverage of local court and tribunal proceedings. This issue was highlighted as part of Dame Frances Cairncross’s independent report into the sustainability of the local newspaper industry (commissioned by the Department for Digital, Culture, Media, and Sport (DCMS) and published in 2019), and in the House of Lords Communications and Digital Committee report into The Future of UK Journalism, which was published last year.[2]
13. The MWG is chaired by the HMCTS Director of Communications and provides a forum for:
14. The MWG is focused on continuously improving how we all work together and removing barriers to effective and appropriate access. It meets formally twice a year, with interim meetings and updates on topical issues.
15. To nurture effective working relationships between court staff and members of the media, HMCTS partnered with the Society of Editors to host regional media roadshows which brought together both groups. Six roadshows took place across England and Wales throughout 2019. This engagement exercise – attended by over 250 media representatives and staff – enabled HMCTS to garner a better understanding of media representatives’ experiences of, and interactions with, our courts and tribunals. This insight and understanding was used to inform the revised HMCTS media guidance which was announced in March 2020.
16. The MWG’s inaugural focus was to provide advice and direct input to the development of revised guidance to staff on supporting media access to courts and tribunals.
17. This guidance covers all jurisdictions and was first published in October 2018. Previously an internal document, publishing the guidance on GOV.UK provides greater transparency and clearer, more consistent, and simplified instructions on how our staff can support the media, and what court reporters can expect when they visit or contact a court or tribunal. As well as being reviewed and endorsed by the MWG, the guidance has been widely welcomed by members of the media across England and Wales.
18. In consultation with the MWG, this guidance is continuously reviewed and updated to reflect changes to policy, legislation, and the procedure rules that govern court and tribunal business:
19. Supplementary guidance has been developed in the context of the pandemic and the widespread introduction of remote hearings[3] (which is covered later in this document).
20. A significant element of the revised March 2020 guidance was the introduction of a formalised media protocol regarding the sharing of magistrates’ court lists, registers, and documents, which are an important part of facilitating media coverage of court proceedings.
21. These lists and registers have typically provided more information to members of the media (those with a valid UK press card) than that provided to the public, not least in respect of providing the addresses of defendants. This has long been regarded as important information to prevent misidentification, but the agreement to provide this detail had never been formalised before March 2020. This provision also significantly extends the ability of members of the media to report on magistrates’ court hearings since they no longer need to attend every courthouse to transcribe proceedings manually[4] - an important development in facilitating court reporting in a digital age.
22. In civil and tribunal matters there are several registers and lists that the media can access to view and search court or tribunal registers or a list of outcomes[5]. This includes registers for the Court of Appeal (Civil Division), High Court (Queen’s Bench Division, and Business and Property Courts), Upper Tribunal (Tax and Chancery Chamber), and Upper Tribunal (Immigration and Asylum Chamber).
23. Members of the media are also entitled to some case materials (e.g. statements or reports) in some cases. They are available as of right in proceedings dealt with under the Single Justice Procedure, and on request by application to the judiciary for other cases.
24. Members of the media and the public are entitled to attend all open court proceedings, including those with reporting restrictions.
25. As set out above, most courts or tribunals have dedicated seats for members of the media in the ‘well’ of the courtroom. Where this is not possible, members of the media can utilise the public gallery.
26. For high profile cases (when HMCTS anticipates a high-demand for in-person attendance by members of the media and where the court estate allows) an overspill room with a live video feed from the courtroom where the hearing is taking place will be facilitated to increase the number of dedicated media seats. Where possible, a dedicated media area or room is also made available[7].
27. The pandemic brought unprecedented challenges for our courts and tribunals, and we are proud to have worked closely with the judiciary to keep the justice system running, making decisive interventions to increase court and tribunal capacity to ensure that justice never stopped. The use of video and audio technology within our justice system predates the pandemic but, as outlined below, the pandemic has significantly increased its use.
28. In all cases, it is for a judge, magistrate, or tribunal panel to decide the way a hearing is to be heard, having considered the circumstances of the hearing, the needs of the participants, and deciding what is in the interests of justice.
29. If a case is being heard remotely, members of the public and media can ask the court or tribunal to facilitate remote observation of that hearing by contacting the court directly. HMCTS’s online guidance sets out how it uses telephone and video technology.
30. It is important to note that the way a hearing is heard, with participants attending remotely or in-person or a combination of the two, has no bearing on whether the hearing is held in public (open court) or in private. This is a judicial decision.
31. Members of the media must be given access to observe open hearings regardless of how they are being heard. They have the right to observe most private hearings too (with some limited exceptions).
32. The HMCTS reform programme was launched in 2016 with the overall aim of a courts and tribunals system which is just, proportionate, and accessible to everyone.
33. To respond to the pandemic, and keep our courts and tribunals operating, we have had to adapt quickly and make immediate changes to our ways of working and our use of technology. It is more important than ever that we complete our programme of reform so we can recover from the impacts of the pandemic, ensure our future resilience, and provide a platform for future development to meet the demands of an ever-changing society.
34. The principle of open justice is central to the way the justice system operates, and HMCTS is committed to enhancing open justice as it delivers the reform programme.
35. The reform programme is comprised of a series of projects delivering change across all jurisdictions. Within this wider programme of modernisation are several key projects that will underpin and expand openness and transparency:
36. The Publications and Information (P&I) project will digitise the publication of court and tribunal lists of upcoming hearings and make them available online and nationwide to the public and media.
37. P&I will consolidate information that is currently published in a variety of styles and formats, and published across various websites, into a single service accessible in one location on GOV.UK.
38. The Video Hearings (VH) service supports fully remote and hybrid[8] hearings. It will become the default audio and video platform for all remote hearings, replacing the range of tools currently in use (such as CVP and Microsoft Teams). It is currently in use in a range of tribunal chambers, as well as being tested in civil and family cases at the Birmingham Civil and Family Justice Centre.
39. The principle of open justice has been embedded into the design of the VH service. As with other platforms currently in use, observers can access a hearing remotely, using their own personal devices, or travel to observe from a public gallery (when a courtroom is being utilised). The option of remote observation expands the opportunity for public inclusion, responds to the needs of those who are unable to travel to court or tribunal buildings, and may support more efficient court reporting through members of the media observing public hearings from their workplace.
40. The Single Justice Procedure (SJP) was introduced as a more proportionate way of dealing with straightforward, uncontested, summary-only non-imprisonable offences which almost exclusively result in a financial penalty.
41. A case dealt with under SJP is decided in the same way as any other case in a magistrates’ court, except that it is decided by a single magistrate (advised by a legal adviser) out of court, and without the defendant and prosecutor present. The magistrate must comply with the same legal safeguards as all other proceedings, and the Sentencing Council sentencing guidelines apply in the same way.
42. Under the SJP, the defendant always retains the right to opt for a full hearing in open court. Should the defendant continue via the SJP, non-parties (i.e. members of the public or media) are not afforded the ability to observe proceedings as they would be able to in open court. However, the principle of open justice continues to apply. Criminal Procedure Rule 5.11(3) ensures that information on the identity of the defendant, prosecutor, offence(s) alleged, and any reporting restrictions is published for five business days once the case is ready to be heard.
43. Criminal Procedure Rules oblige courts to give members of the media and other interested third parties certain additional information on cases upon request. Magistrates’ courts must provide SJP court lists[9] of both pending cases and copies of the court register to the media. The media are also entitled to see prosecution statements, the witness statement(s), and any defence mitigation for SJP hearings.
44. The Judicial Review and Courts (JRC) Bill, which is currently before Parliament for its consideration, will, if approved, make it clear in law that the SJP can be used to prosecute legal persons, such as corporations, as well as individuals. Often corporations are charged with offences which are suitable for the SJP. This can include lorry overloading, for example. This measure will ensure that a corporation can benefit, in the way an individual can, from the speed and convenience of having such cases dealt with under the SJP. Other JRC Bill changes are discussed later in this document.
45. Work is now focused on completing the rollout of Common Platform, the new digital case management system for all criminal courts in England and Wales. A list of pending SJP cases on the Common Platform is published online each day.[10]
46. Current practice is that courts circulate listings in advance by email to media organisations to enable the media to select, attend, and report on hearings of public interest.
47. HMCTS has worked with the Caerphilly Observer and Courtsdesk to evaluate the effect of enhanced provision of magistrates’ court listing and registers. The purpose of these pilots was to explore the benefits of providing listing and register information in a form that makes it easier to search, sort, and filter, and include alerts on topics of interest, with the aim of measuring any change in the quantity and/or quality of court reporting.
48. Early findings indicate these pilots have been a success. When advance listings can be more easily compiled, searched, and sorted, media organisations are more able to make good use of the information. In the pilots there were measurable improvements in media coverage. These outcomes will feed into any changes to be made to the format and methods by which HMCTS provides advance listing information under the media protocol - which will always be a free service to all accredited media organisations. HMCTS will also explore how enhanced listing services could be supported in the future.
49. In 2022, HMCTS will launch its Catalogue of Open and Accessible Data. The catalogue will compile a single index of the many services already offered that are published data series (such as HMCTS management information), transparency information (such as court listings), or other services such as the transcriptions services. The catalogue will also list data titles which HMCTS thinks it is appropriate to make accessible as reusable public sector information and will explain how to obtain these data. The HMCTS Data Access Panel has been reviewed and revised in preparation for the provision of more and better data in 2022 and beyond.
50. From April 2022, responsibility for the storage and publication of courts and tribunal judgments and decisions will be transferred to The National Archives[11].
51. Judgments are a primary source of law and access to them is a fundamental right, central to the rule of law and the principle of open justice. This new service will offer a central and secure database of judgments, ensuring the law remains accessible to the public and under the enhanced information security arrangements of The National Archives.
53. The Coronavirus Act 2020 achieved this by allowing the courts and tribunals to disapply the prohibitions against photography in court (conferred by section 41 of the Criminal Justice Act 1925) and prohibitions against recording sound (conferred by section 9 of the Contempt of Court Act 1981) for the purpose of making these transmissions. A new offence was also created to prohibit the unauthorised recording and re-transmission of these hearings by those observers.
54. These emergency powers have worked well and supported the principle of open justice during the pandemic by allowing our courts and tribunals to safely admit members of the public and media to view proceedings, while also safeguarding the court users against misuse of these transmissions.
55. Recognising that the use of video and audio technology will continue, the Government is seeking to expand and make permanent those temporary remote observation powers via the Police, Crime, Sentencing and Courts (PCSC) Bill, which is currently before Parliament for its consideration.
56. We are seeking to expand the remote observation powers in two ways:
57. The powers in the PCSC Bill will not facilitate the wide broadcasting of proceedings. These powers, if approved by Parliament, will instead allow courts to direct transmissions of proceedings to identified individuals who have directly requested access before a hearing, or to specific ‘designated livestream premises’.
58. Broadcasting of proceedings to unidentified observers can take place in the Supreme Court and in specific senior courts of record via regulations under sections 31 and 32 (respectively) of the Crime and Courts Act 2013[12]. This power has been used to allow the broadcasting of proceedings in the Court of Appeal[13].
59. This power has also been used to enable the broadcasting of sentencing remarks by judges in the Crown Court[14]. However, due to the prioritisation of the pandemic response, its introduction has been delayed.
60. At the outset of the pandemic, the Government also utilised section 32 of the Crime and Courts Act 2013 to enable the Competition Appeals Tribunal (CAT) to broadcast its proceedings via a link on its website[15]. This has also worked successfully with a recent case[16] concerning Newcastle United Football Club seeing around 33,000 individuals from over 50 countries interested in watching the hearing, with around 4,000 observers watching the hearing at any one time. The MoJ is now working with the Department for Business, Energy & Industrial Strategy (BEIS) and the CAT to make this power to broadcast permanent. A new statutory instrument is expected to be brought forward in the Autumn of 2021. This will strengthen the principle of open justice.
61. The Judicial Review and Courts (JRC) Bill contains measures which, if approved, will help avoid unnecessary hearings.
62. For cases that could be heard in either a magistrates’ courts or a Crown Court, defendants will have the option to provide an indication of their plea online and, where this indication is ‘not guilty’, the decision to hear the case in a magistrates’ court or Crown Court will also take place online, thus removing the need for an in-person magistrates’ court hearing to determine this.
63. Defendants will require a legal representative to engage with this new online process as it will be managed by the Common Platform (see above). The online plea will remain only an indication until the defendant appears at a subsequent court hearing to enter a binding plea.
64. It is important to note that it will be entirely optional for defendants to use this new online process, and they will always be able to opt for an in-person hearing. Furthermore, whenever the court deems an in-person hearing to be more appropriate, this online process will not be offered.
65. In relation to open justice and transparency, the outcome of this new online process will still be published by the magistrates’ court, once the process has been completed (i.e. the indicative plea has been entered and the decision on where to hear the case has been made). Any subsequent in-person hearings taking place at a magistrates’ court or Crown Court would be listed publicly, and the usual rules for access by members of the public or media will apply.
66. The JRC Bill will also introduce a new online process for dealing with certain specified summary-only, non-imprisonable offences. This will mean that adults who plead guilty to the most straightforward uncontested cases can opt to have their case dealt with online. If defendants choose this option, they can be convicted, sentenced, and pay their fine quickly online, without the involvement of a magistrate, or the need to attend court in-person.
67. Only certain specified offences will be eligible for this procedure and, initially, only the following three offences will be in scope of the AOCSSP process:
68. The Government will only consider extending the procedure to additional offences once we have fully reviewed how it is working.
69. Defendants will need to actively opt-in to using this procedure and will be provided with all the information they need to make an informed decision, including:
70. Defendants can choose to have their case heard in court at any point before accepting the conviction. The court will also have the power to set aside a conviction in the event that a defendant fails to understand the consequences of their decision to accept the conviction and penalty.
71. In relation to open justice and transparency, as with the SJP; case information, including details of cases due to be considered and outcomes, will be made available to the media and other interested parties in line with the Criminal Procedure Rules.
72. The pandemic has had a big impact on the operation of our justice system, especially during periods when restrictions were in place across our estate (such as social distancing measures). However, HMCTS has adapted well and ensured the justice system never stopped. In May 2020, England and Wales was one of the first jurisdictions anywhere in the world to resume jury trials.
73. Early in the pandemic the Government designated public interest journalists as essential workers, allowing them to continue to attend courts and tribunals in-person, along with other parties and all those involved in running our courts and tribunals.
74. While courts remained open, social distancing meant that public access had to be managed across the estate and there were fewer seats available for use by all court users, including the media. Seats were still reserved for the media, but inevitably in lower numbers and sometimes in ‘linked rooms’ via a live video link where a hearing took place across multiple courtrooms.
75. As staff and reporters adjusted to new ways of working, HMCTS responded by setting up a dedicated phone line for the media to provide technical support to the media and to help connect them with hearing venues when needed. This escalation process and phone line remains in place and has been promoted via representatives on the Media Working Group to members of their own organisations.
76. Because of the rapid expansion in the use of remote hearings in response to the pandemic, and because of the travel restrictions that were in place at the time, HMCTS took steps to publish all court and tribunal lists (including magistrates’ lists) online for the first time. This provided the public with information about where and how listed cases will take place (e.g. remotely or in-person). This played a significant part in maintaining our openness and transparency.
77. We have invested an additional £153m in our courts and tribunal buildings over the course of the pandemic, the biggest single investment in court estate maintenance for more than 20 years. We spent £113m on a range of emergency measures to tackle the impact of the pandemic, including the recruitment of at least 1,600 additional staff and the rapid deployment of hardware and software to facilitate remote hearings (especially the deployment of CVP which now facilitates thousands of remote hearings every month and enables remote observation to ensure the principle of open justice is maintained).
78. In addition to this, the Autumn Budget and Spending Review 2021 has given the MoJ its biggest budget increase in a decade. Almost half a billion pounds will be injected to fuel recovery in the criminal justice system - reducing court backlogs and delivering speedier justice for all.
79. The United Kingdom is a founding member of the Open Government Partnership (OGP). Established in 2011, it is an international coalition of over seventy countries committed to upholding the core values of transparency, accountability, and public participation in government.
80. HM Government’s relationship with the OGP is managed via the Cabinet Office. Officials have been working collaboratively with civil society groups via a series of Multi-Stakeholder Forums (MSF). Through these forums, government-wide commitments are collaboratively developed and published in a National Action Plan every two years. We are currently working towards the publication of the fifth National Action Plan (NAP5) which will cover the period 2021-2023.
81. NAP5 will, for the first time, contain open justice as one of its key themes thus will contain a number of commitments on this topic. Progress against delivering the commitments made in NAP5 will be subject to independent and public evaluation. It is anticipated that NAP5 will be published by the end of this calendar year.
Case studies
Despite the challenges of the pandemic, HMCTS has administered a number of high-profile cases that have attracted significant media attention. Specific arrangements have been put in place, amidst a raft of social-distancing related restrictions to keep people safe, to effectively uphold the principle of open justice. Here are a number of notable examples:
Date | Court | Hearing | Provision for media |
August 2020 | Central Criminal Court (Old Bailey) | R v Hashem Abedi (Manchester Arena Bombing case, trial and sentencing) | Ten seats were available in the main courtroom, a further nine in an overspill courtroom, and a further 14 seats in separate courtroom were available for media representatives. Media seats were also available in separate Cloud Video Platform (CVP) linked sites in Leeds, Newcastle, and Glasgow. |
October/November 2020 | Royal Courts of Justice, London | Johnny Depp v News Group Newspapers (libel hearing) | Normally 13 media seats are available in the courtroom where this case was heard (Court 38). Through altering the courtroom seating setup, this was increased to 20 for this case. |
Sept 2020 & January 2021 | Westminster Magistrates’ Court sitting at the Central Criminal Court | The Government of the United States of America v Julian Paul Assange | One courtroom used for media overspill, and CVP was used to allow remote access for 162 accredited media representatives/organisations. 17 media representatives were able to attend in-person. |
March 2021 | Royal Courts of Justice, London | HRH The Duchess of Sussex -v- Associated Newspapers Limited | Approximately 50 media representatives/organisations attended by CVP or Microsoft Teams. |
March 2021 | Exeter Crown Court | R v Mangori (murder trial) | A separate courtroom was provided for media representatives. CVP links were also issued daily to the Press Association and local media. |
May 2021 | Lowry Theatre (temporary Nightingale court, extension of Manchester Crown Court) | R v Peter Metcalf, Donald Denton and Alan Foster (Hillsborough trial) | 12 seats were reserved in the top tier of the court for media representatives and a separate/linked media room provided an additional eight seats. Space was provided at St George’s Hall in Liverpool where proceedings were also livestreamed to the families. |
November 2020/June 2021 | Royal Courts of Justice, London | Vardy v Rooney (defamation case) | All hearings took place remotely by CVP with a link provided for approximately 30 media representatives and other observers. |
July 2021 | Royal Courts of Justice, London | Atmani & Others v The Royal Borough of Kensington and Chelsea & Others (and other claims arising out of the Grenfell Tower fire) | Parties attended in-person and remotely. A CVP virtual room was provided for around 20-25 media representatives. |
Sept 2021 | Central Criminal Court (Old Bailey) | R v Wayne Couzens (sentencing hearing) | Ten seats were available in this courtroom (Court 10) and an overspill courtroom (Court 19) provided an additional 29 seats. CVP was also available for media representatives. |
[1] Based on Lord Chief Justice Hewart’s remarks in R v Sussex Justices 1924.
[2] Government responses were issued to the Cairncross review in January 2020 and to the Communication and Digital Committee’s Report in March 2021.
[3] Hearings where all participants are participating via audio and video technology.
[4] The provision of magistrates’ court lists and certain other information to the media, is governed by Criminal Procedure Rule (CPR) 5.8, the Magistrates' Courts Rules 1981 66A – 66E, and the supporting media protocol on sharing magistrates’ court lists, registers and documents. They have all been updated since March 2020 - the Protocol imposes obligations on both HMCTS and the media to ensure that information is distributed and used appropriately.
[5] Court of Appeal – Civil Division; Upper Tribunal (Tax and Chancery Chamber) Register of cases; Decisions; Upper Tribunal (Immigration and Asylum Chamber) Decisions on appeals to the Upper Tribunal; High Court - search court registers and request copies of public documents (office copies).
[6] Hearings where all participants are in the courtroom.
[7] ANNEX A outlines some recent case studies.
[8] Hearings where some participants are in a courtroom and others are participating from elsewhere.
[10] Single Justice Procedure Court Lists.
[11] They do so under their statutory duties of the Public Records Act 1958.
[12] Section 32 of the Crime and Courts Act 2013 allows the Lord Chancellor, with the concurrence of the Lord Chief Justice, to disapply the prohibitions on photography and sound recording in court in specific jurisdictions in secondary legislation in order to allow recording, broadcasting, or publishing of proceedings. The Supreme Court has been livestreaming proceedings since its foundation in 2009 due to it being exempt from the prohibitions of photography and sound recording in court (by virtue of section 47 of the Constitutional Reform Act 2005). It is covered by section 31 of the Crime and Courts Act 2013 also.
[13] Statutory Instrument 2013/2786 and Statutory Instrument 2020/631.
[14] Statutory Instrument 2020/637.
[15] Statutory Instrument 2020/801.
[16] St James Holdings Limited v The Football Association Premier League Limited.