‘Open Justice’ (yet another) footnote

Following up on the topic of Open Justice and also relating to ‘secrecy’ in the family courts, I wanted to briefly discuss two issues arising from John Hemming’s comments in a debate on parliamentary privilege last week.  The first is a link to a very interesting blog article by Carl Gardner at Head of Legal.  Of particular interest are the comments below the blog post, where John Hemming himself and others engage in interesting debate about the rights of constituents to speak to their MP’s about active court proceedings, and issues relating to media coverage of Court of Protection and Family Court cases.

The second issue relates to a particular comment made by John Hemming at Column 153WH relating to the publication of judgments.  In previous posts on Open Justice I’ve written about my frustration – and that of others – at the lack of published Court of Protection judgments on Bailii (or even elsewhere).  Hemming cites Article 6(1) of the European Convention of Human Rights, which correctly* should read:

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. 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.

There does, to my mind at least, seem to be a tension between Article 6 and the lack of public judgments from the Family Courts and Court of Protection.  This may also be problematic in terms of the limited number of High Court judgments that make their way onto Bailii due to copyright issues.

Whilst the right to a fair trial itself is a limited one, the right to public pronouncement is unqualified.  I only know of one ECtHR judgment relating to this, and that is Pretto v Italy (1983).  In Pretto, it was claimed that Italian courts had ‘had violated the rights of the defence by basing its decision on a judgment which had not yet been published and could not have been known to the applicant’s lawyer’ and that ‘By not pronouncing their judgments publicly, the Court of Appeal and the Court of Cassation had failed to satisfy a further requirement of Article 6 § 1’.  The ECtHR found that:

The public character of proceedings before the judicial bodies referred to in Article 6 § 1 (art. 6-1) protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts, superior and inferior, can be maintained. By rendering the administration of justice visible, publicity contributes to the achievement of the aim of Article 6 § 1 (art. 6-1), namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society within the meaning of the Convention [21]

However the court also acknowledged diversity among member states as to the scope and manner of implementation of this ‘principle of publicity’ [22].  Article 6(1) is not, the ECtHR stated, to be interpreted strictly as meaning the judgment must be read aloud publicly, but states could also fulfil its requirements in other ways.  The Italian court in question had deposited the judgment in the court registry ‘with written notification of the operative provisions being given to the parties, but not pronounced in open court’ [24].  Anyone could have access to this judgment if they made an application to the Court registry [27].  Asked to decide whether the Italian court had contravened Article 6(1) because it had not read the judgment aloud in open court, the ECtHR ruled that:

…the object pursued by Article 6 § 1(art. 6-1) in this context – namely, to ensure scrutiny of the judiciary by the public with a view to safeguarding the right to a fair trial – is, at any rate as regards cassation proceedings, no less achieved by a deposit in the court registry, making the full text of the judgment available to everyone, than by a reading in open court of a decision dismissing an appeal or quashing a previous judgment, such reading sometimes being limited to the operative provisions. [27]

The question remains, therefore, whether judgments that are not read aloud in open court, nor placed in a registry where they will be ‘available to everyone’ meet the requirements of Article 6(1).  It may well be that the judge themselves has given leave for a judgment to be reported, subject to restrictions, but that does not mean in practice that a copy of the judgment is publicly available.  Is it sufficient for a judgment to be in principle available, if one is prepared to make a request of the court and pay for transcription services?  How is one to know of the existence of such a case?  It would be rather an empty right to most people if this were the case.

There are a few Family Court cases which discuss Pretto, but they seem only to do so in the context of allowing the media in or not, so I can’t find any real discussion of the issues around public access to judgments.  If anyone can think of any cases which advance the argument that all judgments should be made publicly available, please feel free to suggest!  On my reading at least, the case does seem to add legal weight to the view that judgments should not be, in effect, inaccessible to the public on the basis of copyright and restricted resources.

*Unfortunately either Hemming cites an incorrect version or else Hansard writers have copied it incorrectly (I think the mistake may originate from here, which is the first version that comes up on Google).  [Edit: John Hemming has directed me to a video of the statement, which suggests the mistake is in the transcription not the reading.] The version in Hansard states ‘Judgement shall be pronounced publicly by the press and public may be excluded from all or part of the trial’ (italics mine).  A correct version of the Convention can be found on the ECtHR website, here.
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