All round the world, courts and tribunals are moving from physical buildings to a virtual presence. In doing so, they are taking various views about appropriate technology, procedures and the extent to which they see this as a permanent or temporary move. In England Wales, the existing court modernisation programme has provided some preparation and some expectation that Covid 19 arrangements will be continued after the present emergency. But, as was apparent from a Young Legal Aid Lawyers webinar yesterday, criminal defence practitioners, in particular, have major issues about the technology and its configuration, for example how it should allow them to consult with clients during a hearing. However, let us return to these on another day. For the moment, we can concentrate on a different issue: their impact on the principle of open justice and remote courts.
Open justice is a widely revered common law principle going back beyond Magna Carta that, nevertheless, often proves a bit awkward. The classic example of an institution which breached its principles was the Start Chamber, which had proved rather handy for a number of Tudor and Stuart monarchs inclined to autocracy. The classic articulation of open justice’s purpose comes more recently from Lord Woolf: ‘The need to be vigilant arises from the natural tendency for the general principle to be eroded and for exceptions to grow by accretion as the exceptions are applied by analogy to existing cases. This is the reason it is so important not to forget why proceedings are required to be subjected to the full glare of a public hearing. It is necessary because the public nature of proceedings deters inappropriate behaviour on the part of the court. It also maintains the public’s confidence in the administration of justice. It enables the public to know that justice is being administered impartially.’
A modern statement of the principle of open justice lies in Article 6 of the European Convention of Human Rights (similar to, but a little expanded beyond, Article 14 of the International Covenant on Civil and Political Rights) which says that ‘In the determination of his civil rights and obligations or of any criminal against him, everyone is entitled to a fair and public hearing … ‘ and that ‘Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.’
And, thus, the stage is set for a range of contemporary tension points often articulated in terms of the competing interests of the press and media against the government and the privileged. These have arisen in relation to open justice issues as far apart as terrorism trials and footballer’s secret injunctions prohibiting publication of various ill-advised amorous adventures.
Remote hearings also, of course, raise open justice issues. In principle, Her Majesty’s Courts and Tribunals Service has no problem in acknowledging its duty of operationalising this as best it can. Its guidance notes on hearings during the Covid 19 crisis notes, for example, that ‘open justice is a fundamental principle in our courts and tribunal system’. This is reflected in statute. The Coronavirus Act 2020 has specific provisions ‘enabling the public and see’ digital proceedings (Schedule 25). These specify that a judge ‘may direct that the proceedings are to be broadcast … for the purpose of enabling members of the public to see and hear the proceedings.’ On the other side, the Act creates, however, offences for the unauthorised recording or transmission ‘of an image or sound which is being [so] broadcast’.
The statute and the HMCTS’ construction are buttressed by judicial guidance: ‘remote hearings should, so far as possible, still be public hearings. This can be achieved in a number of ways: (a) one person (whether judge, clerk or official) relaying the audio and (if available) video of the hearing to an open court room; (b) allowing a media representative to log in to the remote hearing; and/or (c) live streaming of the hearing over the internet, where broadcasting hearings is authorised in legislation. The principles of open justice remain paramount.’
The highest courts in the land have little problem with virtual hearings. Here, you have to say that technology has acted as a boon. And, to be fair to the HMCTS and Judiciary, the Youtubing and Livestreaming of the most important cases has technically been done well. The Supreme Court has livestreamed its proceedings from the beginning and coverage is unaffected even where advocates are appearing remotely. Video coverage was extended to selected cases of the Court of Appeal (Civil Division) as early as November 2018. There is a video archive of past hearings. Thus, court proceedings that are bound to attract much media interest such as the fate of the Chagos Islanders, the legality of antique ivory sales and Heathrow’s Third Runway are available to all.
But two problems remain. First, access in lower courts is not so easy. Back in 2011, William Perrin, an inveterate open data campaigner who once advised Tony Blair on technology, called for a ‘Transparency Charter’. ‘In the interests of transparency and confidence in the justice system, people should be able to find out easily, on the internet: what cases are expected to come up in a court from the time that they are scheduled; name, address and specific charges in all cases available from the time the case is scheduled (see footnote); the full names, including first names, of judges, prosecution and defence lawyers, witnesses, and other professionals who speak during proceedings (e.g. magistrates’ clerks giving legal advice) from when they are known; judgements handed down from the end of the working day on which the case is concluded; next stage of the case. … Case information should be flagged where restrictions apply and those restrictions set out in writing.’ Mr Perrin’s call for his charter made it to the Guardian in 2012 but, alas, little further.
Campaigners like Professor Celia Kitzinger and Penelope Gibbs of Transform Justice have lobbied hard for consideration of the practicalities of how the Covid provisions are being implemented in practice.
This is Ms Gibbs’s latest blog: ‘But is justice being compromised by the rush to remote justice? I’ve been trying to find out ever since the beginning of lockdown. According to HMCTS, thousands of court hearings are being held remotely each week. But despite many emails I have not been given access (nor I think has any non media observer) to any remote criminal hearings. I know it’s technically possible and no-one has explained why I can’t link in from home as lawyers do. I can only assume HMCTS and the judiciary are nervous about potential recording.’
To be fair, the problem is twofold. First, there is the access to the information of cases but, second, access for members of the public who are being treated differently from accredited journalists. Some of these like Derby Telegraph’s Martin Naylor really like the increased access of the digital system once they get access to it. ‘So while I am afforded a tiny window into the home lives of the professionals who I would normally meet each day, me in a suit and they in their wigs and gowns, via cameras on the top of our laptops, I am also visiting the flats and houses of the defendants through the same technology. I would like to add that I could not do this without the help from all involved at the court who have bent over backwards to help me and whose thanks I give. And as justice is meted out during this strange time we are living through, I find this both brilliant and utterly fascinating.’
Two senior Labour politicians – David Lammy and Lord Falconer have argued that ‘all court cases – with the exception of certain criminal, family and youth cases – should be streamed online and accessible to all.’ So, all members of the public should get the same access as Mr Naylor.
But not quite so fast. HMCTS and the judiciary might legitimately be concerned about unauthorised recording which is not only an offence but also a legitimate concern. It is generally accepted that witnesses may well be affected (or, worse, put off from giving testimony at all) by a knowledge that they could be recorded. Some might play to an extended gallery; others might be ashamed; recordings might be circulated for titillation or taunting. Mr Lammy and Lord Falconer are experienced enough lawyers and politicians to put in some caveats to their demands: they are important and need to be spelt out. Once we are through the Covid 19 emergency we should have rules about which cases should not be broadcast.
There are two longer term lessons. We need:
- a transparency charter along the lines suggested nearly a decade ago by Mr Perrin; and
- a clear statutory prohibition on the video broadcasting or recording of criminal trials – or, at least, that part of them which is concerned with the evidence of witnesses of fact.
The HMCTS and judiciary have done well in relation to the most important cases. It would be all too typical of our domestic culture to praise ourselves for that and forget about the less important cases. But, it would, surely, be unworthy. And if Brexit means celebrating domestic achievements like the Magna Carta, let’s have some more modern charters to take us into the 21st century – like Mr Perrin’s suggestion of one on transparency in relation to courts.