The principle of open justice is often described as fundamental to the rule of law. However, what is meant by open justice is increasingly proving to be a controversial area. Non-party access to case files is highly contested. While efforts at reform are gathering pace, the recent decision of In re HMP implies a potentially restrictive understanding of open justice which, if it were to predominate, would strongly cut against the societal move towards democratisation of access to information.
In re HMP was an application by the BBC to access a case file in care proceedings. Having succeeded at first instance, the BBC in fact conceded the appeal on the basis that to do otherwise would breach its editorial standards regarding the interests of minors. The Court of Appeal nonetheless gave judgment so as to clarify the true meaning of the open justice principle. The court’s judgment is a strong indication of the limits that might be placed on the open justice principle.
A fine distinction
The Court of Appeal emphasised a distinction between two purposes. The first is accessing documents in order ‘to scrutinise the way in which courts decide case…or enable the public to understand how the justice system works and decisions are made’ which does fall within the open justice principle. The second is accessing the documents to use them to scrutinise the subject matter of the litigation, in this case a private fostering arrangement and the fulfilment or otherwise of a local council’s safeguarding role, which is not justified under the open justice principle. This conclusion was reached despite the acknowledged legitimate public interest in the BBC’s reporting.
There are, of course, substantial restrictions on reporting in care proceedings given the interests of children and the understandable desire to protect them. The Court of Appeal also emphasised that the judgment was not intended to undermine open justice or to discourage the progress being made in various reforms in this area. However, one could reasonably conclude that the decision reflects a narrow concept of the openness of our justice system and one that could justifiably be challenged. It seems unlikely that In re HMP will only be cited in the family courts and it should, not least given the presence of the lady chief justice among those giving judgment, receive wider attention.
A wider issue
Debate regarding such decisions is particularly important at the current time. Following the Supreme Court decision in Dring v Cape Intermediate Holdings, there has been a degree of uncertainty when it comes to the extent of third party access to court files in civil cases. This reflects the as yet unfulfilled possibility of reforms to relevant provisions of the CPR. Mrs Justice Cockerill DBE, soon to take up a position as a lady justice of appeal, has been leading the Transparency and Open Justice Board’s efforts to expand access to court proceedings and documents for the public. We are living through a moment of potentially significant change in the way we approach non-party access to court process and what open justice really means.
Our society has itself gone through a major development in recent years regarding access to information. The internet and a sense of democratisation means that people expect information to be available at a click of a button. Where it is not, disengagement, distrust and even conspiracy theories thrive. One sees the impact of this variously, including in discussions as to whether reporting restrictions in jury trials are maintainable in the era of social media.
Towards reform
Against this shifting tide, the court system must find its place. Litigants are entitled not to have to decide whether to put their best foot forward or not based on their tolerance for information being accessible to strangers to the litigation. Some restrictions are sensible and there may be good reasons to resist court records becoming as entirely accessible as they are in other jurisdictions (notably the US). However, a conception of open justice that restricts itself only to shining a light on the processes of courts, rather than the subject matter of court disputes, risks creating a foundation for reforms that will be regarded as outdated and so necessitate further revision in the current cultural context.
The efforts underway to assess how best to achieve open justice and increase public access to, and hopefully thus attention for and trust in, judicial proceedings are to be respected. It is important, in concluding that important work, that a real debate is held on whether open justice should be as constrained as In re HMP might suggest. A principle of a free society is that information before state emanations, such as the courts, should be publicly available, without good reason to the contrary. The practical benefits of wider public access to court files are also well known, notably in misconduct being publicised and further victims taking action. The arguments in favour of a wider concept of open justice are difficult to ignore. In re HMP is no doubt a correct statement of the law, but should also be food for thought in favour of reform.
Philip Gardner is senior associate at Peters & Peters
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