Afterthoughts on ‘Open Justice’

I wrote a few weeks ago about some of the specific issues for improving transparency in the Court of Protection.  Since then, I’ve become aware of a veritable blogswarm of discussion and debate about Open Justice in a wider sense.  Various recent developments have contributed to this online debate: tweeting being permitted in the Supreme Court, the Court of Protection opening its doors to journalists in several recent cases (reported herehere and here), the use of parliamentary privilege for an MP to reveal the use of super-injunctions and hyper-injunctions by the courts, and a recent speech (pdf) entitled ‘Open Justice Unbound’ by  the Master of the RollsLord Neuberger.  I feel very strongly that justice in the UK is ripe for improvements in the transparency of the courts, and accessibility of information.  If this truly is the government of transparency and accountability, perhaps they’ll listen to this growing clamour and turn their attentions to the Justice system.   I want to offer a few follow-up thoughts from my earlier post, and also provide some more links to the excellent articles out there on this topic.
Impenetrability of legalese to litigants and lay readers
Adam Wagner at the ever informative and readable UK Human Rights Blog wrote a post about the open justice agenda today, and if you have any suggestions or views please add them to the comments under his article.  The suggestions in his article and the comments range from ‘accessbility’ in terms of access to the raw text of judgments, court transcripts, statute law (more on this below), to issues of  ‘accessibility’ in terms of readability and comprehensibility of judgments.  In addition to Wagner’s suggestions on judgement writing, I would add that given increasing numbers of litigants in person using the courts, officials need to consider making forms and correspondence more easily understood by the lay public.  If you’ve ever tried to make an application to the Court of Protection yourself you’ll know what I mean (exercise: imagine being faced with this list if you wanted to make an application, then try to understand any of the forms themselves).  In this rather sad case from the Court of Protection, there’s an interesting few paragraphs from 50-52, in which it transpires that a family failed to make an application to the court to set aside an order which had removed their father from their care (on the basis of safeguarding allegations, which later proved false), because they didn’t understand the letter.  The council had applied ‘without notice’ to present the safeguarding allegations to the court and apply for permission to remove the father from their care, and they were not present at the initial hearing to defend themselves.  The judge criticises the use of legal shorthand in court correspondence when ‘the order is in all likelihood to be served upon lay parties who do not have representation and lack any legal background’ [56].
Wagner also discusses the possibility of courts issuing short press releases or summaries to accompany judgments.  This would doubtless be welcomed by anyone without access to Lexis, Westlaw or law reports, who often have to wade through an entire judgment to find the outcome and the basis for any decision.  It might also enhance the quality of media reporting of law which – in relation to the Court of Protection at least – is in my view often shamefully inaccurate and lacking in informed analysis.  It could help also help court users themselves; it is no justice if the courts users don’t fully understand the reasons underpinning the judgment in their own case.  One of the suggestions in the comments below Wagner’s blog is to provide a CD recording of the court case to all litigants, which would probably be welcomed by many… but would the courts be prepared to relinquish control to this extent on what is reported outside the court?

Recordings and broadcasts of court proceedings
In a really interesting post, journalist and information activist Heather Brooke writes about her experiences of trying to record, for reporting purposes, in an information tribunal.   She writes

Anisa Dhanji, the judge, said she was concerned with the hearing being recorded. ‘Usually such requests are made in advance so the tribunal can maintain the necessary degree of control over the transcript.’

The request to record the ruling was refused (in a separate, unrecorded, ruling).  Brookes goes on to say:

“Control” is exactly what a court shouldn’t be exerting. Once it is decided that it is open, there should be no restriction on how that open hearing is processed. She went on to say that she’d allow me to record now but I’d have to wait for a future ruling before I could “use” the recording.

To a certain extent I am inclined to agree, given that most courts are in any case open to the public.  I can certainly think of cases where I’d like to have access to a recording or the transcript to review what evidence was actually presented before the court.  Cases before the ECtHR are broadcast online, and Wagner discusses the possibility of televising Supreme Court cases here.  I can definitely see that there are strong public interest arguments in making available as much information about how law is made in the higher courts as possible.  As for tribunals and lower courts though, I’m less sure. 
How you feel about making available recordings and transcripts of court proceedings probably depends on your perspective.  It would certainly open up judicial decision making to much greater scrutiny, and you don’t have to be an enormous cynic to imagine this may be one reason the courts are dragging their feet on this – but surely our judges are robust enough to take criticism and stand by their decisions?  At present, (for most of us mortals, outside the chatter of the Inns of Court) all we can rely on for information about a case is contained within a judgment.  Sometimes there is information left out of judgments that we might have felt cast a different light on a decision, but we have no access to the ‘raw’ basis of the court’s decision. I can think of several cases where I do know a little more about the background and am surprised this material is not in the judgment. 
Audio-recordings and broadcasts might also open up legal professionals themselves to greater scrutiny, and whilst some confident souls might welcome this, it’s easy to see why others might not.  I can imagine a lot of legal professionals would detest their peers being able to watch or hear their performances, pick apart aspects of the case they’ve presented badly or left out altogether…  And there are other professionals’ whose work might be open to greater scrutiny.  There has been agitation for quite some time – at least in the family courts – for more information about the identity and evidence of expert witnesses to be made public.  I don’t think anyone is proposing we televise family court hearings, but I can imagine that in personal injury litigation, for instance, expert witnesses might be more reluctant to be instructed where they thought their evidence might be broadcast on television or the internet.  Of course, this might lead to improvements in the quality of evidence that was used, but it might also lead to a lack of professionals brave enough to take the stand.  I’d like to think that any professional giving evidence in court would be prepared to publicly stand by their comments, but I can also understand that it can be a daunting experience.
And then there’s the litigants themselves.  It’s not just the family courts which hear very personal aspects of people’s lives.  I admire the bravery of Elaine McDonald, bringing a case against the Royal Borough of Kensington and Chelsea when they withdrew her overnight support to access the toilet, forcing her to rely on incontinence pads (despite being continent).  How would she have felt, I wonder, giving evidence on such a personal matter if her case were televised or audio-recorded, and potentially broadcast elsewhere?  Given that the courts are (in the main) open, is it possible to maintain that they might have rights to privacy that would be infringed if hearings were broadcast or audio-recorded?  Article 8 rights to privacy are qualified, and public interest arguments in favour of open justice might well outweigh the privacy rights of litigants, but does this alter with the status of the court?  Could we, for instance, maintain that in tribunals the privacy of litigants should be protected, but in the Supreme Court the balance is in favour of transparency?  And would the issues be any different if we were talking about transcripts, and not recordings?  Certainly, recordings may be likely to be preferred as they are much cheaper than transcripts (see Binary Law, Heather Brookes, and Judith Townsend’s blog for discussion of reasons for the costs of transcripts).  But recordings, unlike transcripts, are in much greater danger of being used for entertainment or political purposes which might sometimes run counter to the spirit of open and fair justice systems.
Getting information out of the court services and public authorities themselves…

In her article Brookes also raises the infuriating difficulty journalists (and researchers) have in getting hold of information about court proceedings.  Here’s a short list of research projects and requests for information I’ve had to abandon or seriously alter due to the reluctance of Her Majesty’s Courts Service, or other public authorities, to collate or share information about their legal activities.
  •  I wanted to find out about the kinds of cases were being brought under s44 Mental Capacity Act 2005 and the defences relied upon.  I tried the courts service, who didn’t seem to collect any detailed information centrally.  I was advised to search local papers (for the entire country) and look for references to court proceedings there…  And then, once you’ve found your news story, you can approach the court in question, ask permission and hand over hundreds (if not thousands) of pounds to a private copyright firm to type up a transcript.  Apparently this was to do with data protection, but it’s clearly a principle of data protection that eludes the media that reported on the individual cases and the copywriters who are happy to give me a transcript if I hand over the dough. (Incidentally, the CPS weren’t much more help, they only keep a record of the number of cases brought – not those that are successful, nor would they tell me what courts/regions to look in…)
  • Trying to find out how many deprivation of liberty authorisations have been successfully appealed by detainees or their families.  HMCS were able to tell me that there were 38 cases brought before the Court of Protection under the DoLS in England and Wales, but they couldn’t tell me who brought them (ie. was it detainees/representatives, or the supervisory bodies themselves referring the cases to the courts?).  Nor could they tell me the identities of the public authorities in question whose deprivation of liberty authorisations had been challenged (or, in the alternative, who had referred cases to the court themselves).  Nor even whether cases concerned local authorities (ie. detention in care homes) or PCTs (detention in hospitals).  This is particularly interesting, as I was only after the name of the public authority, from which it would surely have been impossible to ‘triangulate’ the identity of the private parties to proceedings.  This left me the very time consuming task of writing to every single local authority in England to ask whether they had had any DoLS authorisations challenged.  The results have been absolutely fascinating and not a little astonishing… but more on that another time.
  •  Before I had fully digested the import of s32 Freedom of Information Act 2000, I tried to use the Act to get public authorities to part with the written submissions they had made in various cases of interest to me.  Wouldn’t it be interesting to see what Birmingham City Council had to say in the case of Yl v Birmingham City Council (2007) (more interesting still, what the National Care Association had to say!)?  I’m no FOI law expert, but I am puzzled as to why their court submissions are exempt from the general rule of transparency.  Their legal actions are funded out of public money just as much as any other activities they undertake, and should (in my view) be just as transparent and accountable to the public.


Super-injunctions, hyper-injunctions and Hemming’s ‘secret prisoners’
It doesn’t take a legal expert to deduce that it might run counter to principles of fairness and open justice for our courts to issue injunctions against media outlets printing information that might be in the public interest, then making that a ‘super-injunction’ by banning media outlets from even reporting that they’ve had an injunction slapped on them, then increasing that to a ‘hyper-injunction’ by banning information-holders from discussing their silenced predicament either with a lawyer or their MP…  However, I’m no expert on information law, so I’m just going to point you to some excellent articles on super-injunctions and hyper-injunctions by the redoubtable Charon QC and Anna Raccoon.  Charlotte Harris at Inform writes about Lord Neuberger’s expressed concern at these injunctions, mentioned in his recent speech (pdf).  Gossip lovers out there might also like to check out this post by Guido Fawkes…
The recent furore was sparked off by MP John Hemming using parliamentary privilege to reveal the existence of said injunctions in parliament (see Hansard).  One aspect of his speech that has been less reported is Hemming’s allegations that social services departments and the family courts have been issuing their own injunctions against speaking to lawyers and MPs.  He writes:

…it is a dreadful abuse of state power to threaten to remove a child from the care of the parents because they deign to speak to their Member of Parliament. That happened to one of my constituents…

Hemming cites the Family Proceedings (Amendment) (No.2) Rules 2009, which state that a ‘party or the legal representative of a party, on behalf of and upon the instructions of that party, may communicate information relating to the proceedings to any person where necessary to enable that party…by confidential discussion, to obtain support, advice or assistance in the conduct of the proceedings’.  That is to say, if they need to speak to their MP to obtain support, nothing in the family court rules prevent them from doing so.
And then there is the Gilliland case which, on the surface at least, bears some parallels with hyper-injunctions inasmuch as a person cannot instruct a solicitor on the matter in question.  There is a lot to be said about issues relating to ‘capacity to litigate’, but I’m going to wait until the ECtHR have delivered their verdict on Stanev v Bulgaria before I do so, as it deals extensively with this issue (as well as Guardianship, detention in social care settings, positive obligations to mitigate the need for detention – a very important case, which is doubtless why it was heard by the Grand Chamber, and why they’re still deliberating…).  I don’t think it’s particularly helpful for me to speculate what’s going on in the Gilliland case, there being so little useful information about it in the public domain, but I am intrigued by Hemming’s comments about ‘secret prisoners’:

I have asked for an inquiry into all the secret prisoners we have. There are a number of different types of secret prisoner. There are people such as Matthew Hawkesworth; I cannot work out why he is in jail, but he is locked up… Yvonne Goder was jailed in secret for a short while last year. Her committal hearings and various discussions were all held in secret. She believes that three properties were taken from her family. This is a Court of Protection matter. On 17 January 2000, the capacity of her mother Efi Goder-Marsh to manage her own affairs was taken from her and given to her husband, who denies ever getting it… I have the transfer deeds; each was signed differently by somebody in an illegible manner, claiming to be Efi Goder-Marsh’s husband. It looks different and he denies signing them. The documents were all witnessed by somebody in a particular solicitors’ firm, with which I am in communication. Here is the difficulty. As it is a Court of Protection, the person cannot be identified without matters going into parliamentary proceedings. That causes all sorts of problems in terms of investigation. I hope that that will not be a problem in future. She is another secret prisoner; what was the situation there? Why were there secret committal hearings? It is a contempt issue.

I have no doubt that throughout the UK there are ‘secret prisoners’, as Hemming calls them, but I’m not sure at all sure what kind he refers to here, or what kind of inquiry he is calling for.  I’m not sure either whether he means that ‘secret’ courts are in contempt of parliament.  If anyone would like to enlighten me, I’d be fascinated.  It sounds as if some of these cases relate to deprivation of liberty authorised under the DoLS or the inherent jurisdiction of the Court of Protection, but it’s not terribly clear.  I hope this doesn’t sound trite, but I wonder whether the ‘secret prisoners’ that we should be really worrying about aren’t the ones that get before the courts at all, but the (likely tens of?) thousands of cases where people are de facto deprived of their liberty without authorisation or hearings before the courts at all.  In any case, if Hemming thinks there should be an inquiry into the operation of the deprivation of liberty safeguards, I’d back him all the way.  The problem is that I don’t find his exercise in transparency terribly transparent in itself…
Database and technology wish list
Just to finish off, I’d like to reiterate my frustration that the only copies of legislation made freely available online are not updated when statutes are amended, leaving people without pricey subscription services in the dark as to parliament’s most recent intentions.  I’d like to put out a plea to Bailii and the courts services to a) get more Court of Protection case law online and b) consider improving how this information is organised.  At present, if you know the name or details of a hearing, it’s not too difficult to locate it, but it would be great cases were indexed in the same way as Westlaw in terms of what cases they cite, or cite them.  What statutes they involve.  As a next best option, to consider making them searchable through Google.  As Adam Wagner pointed out on Twitter today, Google already indexes all American legal judgments, it’d be fantastic if we had that here.  For people outside the loop, like myself, it’d also be handy to have a case tracker, which told you which cases were coming up (with bare facts about them – along the lines of what ECtHR provide), whether decided cases were being appealed and – most importantly perhaps – what reporting restrictions were placed on them.
I’ve written far more than I mean to, apologies, as Blaise Pascal once said, “I would have written a shorter letter, but I did not have the time”.
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