The open justice principle - that justice must be seen to be done as well as done - is a fundamental principle of our legal system. Yet not that long ago the limits of open justice extended only to leaving the court door open.
In recent times though there has been an increased recognition by the judiciary, politicians and many lawyers that public trust and confidence in the rule of law rests on the public knowing about how our legal system works, and that this knowledge primarily derives from media reports.
This has resulted in many initiatives leading to a greater commitment to helping the media report the courts. Initiatives include the CPS Media Protocol, which allows disclosure of images shown to the jury in the Crown Court to the media. A Reporters' Charter, Judicial College Guidance on Reporting Restrictions and the expansion of filming court proceedings, most recently to broadcasting of sentencing in the Crown Court. There have also been changes to the Crime and Civil procedure rules allowing greater access to court documents. These initiatives have helped encourage reporting and the sky has not fallen down.
The Bar Council has recently reviewed and updated its guidance about barristers disclosing documents to reporters. The issue is timely given the move away from oral testimony in civil hearings and increased reliance on documents in proceedings. The obvious question is: how can a reporter follow and report civil proceedings without access to documents such as a witness statement that stands as the evidence in chief? The review of the Bar Council guidance took place to reflect changes to the Criminal and Civil Procedure rules. It was overseen by the Ethics Committee of the Bar Council. The detailed work was conducted by Guy Vassall-Adams KC of Matrix Chambers, a leading expert on the law of court reporting.
The new guidance published by the Bar Council in June 2022 does not create any new obligation. Rather it amounts to a change of emphasis reflecting a change in the rules and recent case law. It highlights issues that barristers should consider if asked to disclose documents. There are a few basic principles.
The starting point is that it is usually appropriate to seek instructions from your client and or your instructing solicitor. Nothing surprising there.
After that the overarching principle is that in most civil proceedings, the default position is that documents placed before the court are disclosable to journalists unless there is a strong countervailing reason. This means that witness statements in civil proceedings that are part of the evidence, are open to disclosure, as are skeleton arguments and written submissions. Where there is an objection to disclosure the court can be asked to carry out a fact specific exercise, for example to deny access to confidential information, identification of minors or disclosure of trade secrets. This can lead to redaction of parts of the documents.
In criminal proceedings a document used in open court may be subject to disclosure to journalists – for example a prosecution opening statement. Having said that, great care is needed not to disclose unused material in criminal proceedings to third parties. It is a criminal offence to do so.
In the Court of Appeal Civil Division, the rules now require legal representatives to bring two extra copies of skeleton arguments for court reporters.
The issue of court reporting and open justice is one of the debates at this year’s Bar Council Conference on Saturday 26 November.
One of the hot topics is likely to be the recent Justice Committee Select Committee Report that highlighted an openness deficit, stating more needs to be done so that the media and the public can access court documents and online proceedings - and a decline in regional newspapers and dedicated court reporters. This has a knock-on effect for the rule of law - reducing public understanding both of individual cases and wider issues such as sentencing policy, the work of the judiciary and the courts. Concerns are also raised about transparency in the Single Justice Procedure. Chair of the Justice Committee, Sir Bob Neill MP said:
“Since the turn of the century there has been a transformation in the media landscape. We no longer live in a world where national and local newspapers act as the eyes and ears of the public in the courtroom. However, digital media has so far failed to fill the gap in court reporting left by the decline in physical media. More needs to be done to address this critical gap and the loss of public understanding of how justice is applied. If open justice is to be improved in the long term, it will take place in the digital sphere and the court system must put in place the framework to facilitate that.”
The direction of travel should be towards greater openness. It goes back to the basic principle of openness and the need to encourage reporting. From my own experience as a lawyer within the media (ITN makes ITV News, Channel 4 News and Channel 5 News) the more information and images reporters have the more likely we are likely to report the courts. More reporting can only be good for justice. It has struck me, for example, how many people have said they did not realise how complex the process of sentencing actually is, having seen it for the first time recently in television news and online.
There is still a long way to go. It’s easy for reporters to access documents in US court cases, but difficult in our jurisdiction. The future could well be an electronic press kit where the reporter has online access to the court documentation. There are other issues that need to be addressed such as a database of court orders. This will all need investment but the more the public know about the system, the better for the rule of law.
John Battle is Head of Legal and Compliance at ITN, an employed barrister and a member of the Bar Council’s Ethics Committee.