Open justice: threat is not where you think

Students of the Yes Minister school of policymaking will already have spotted the six-inch, chrome-vanadium-plated spanner that the government has dropped into its promise to preserve transparency in the new world of digital courts.

The Ministry of Justice’s response to the transforming our justice system consultation states: ‘In relation to transparency, we are currently developing a solution which will ensure that the principle of open justice is maintained as we move to digital channels. We will ensure that all interested parties, including victims, witnesses, the public and the press, will have access to case listings and outcomes where appropriate.’

‘Where appropriate’, of course, is the spanner. As usual, who or what decides what is ‘appropriate’ is not stated; we must assume we are in good paternal hands.

That’s worrying enough. However I believe the threat to open justice from online courts will come in a more subtle form. Not directly from the Shrödinger’s black box of ‘automatic online conviction and statutory penalty’ but from a backlash if the authorities deliver on their promise of openness. 

The problem is that the principle of open justice tends to crumble when it gets personal. Almost everyone will spout the half-remembered line about ‘being seen to be done’ until the doctrine puts their own name in the public pixels or prints. Then the special pleadings start. As a young reporter covering Guildford magistrates’ courts I got used to dealing with requests by accused or witnesses to leave their names out of the paper; later on I was even once nobbled by a juror who thought I might name him. Sometimes the requests were accompanied by hints of violence.

On a more subtle level, we seem to have had a spate of recent claims by parties in high-value divorce proceedings and commercial courts proceedings to have special reasons why their problems should not be in the public eye. Sometimes, they win. 

The worry about going digital is that the population of people with an individual objection to open justice could reach critical mass. I’m obviously not talking about hardened criminals but the kind of people with a minor skeleton in their youthful closets. In theory we are protected by the 1974 Rehabilitation of Offenders Act but digital data tends to be stickier than the old newspaper cuttings the 1974 act was drafted to deal with.

Again, we’re not talking about major crimes: the European ‘right to be forgotten’ rule which emerged from Google v Spain concerned an individual’s wish to bury an old report about the forced sale of properties he owned. 

Against such specific grievances, vague sentiment about open justice starts to look fragile. It will need explaining, celebrating – and defending.

Who should be trusted with the job? Perhaps the judiciary will come in on the side of the angels, though some recent decisions may suggest otherwise. It could also be put specifically under the purview of the Information Commissioner’s Office, though that body seems more culturally disposed to enforcing its data protection than its freedom of information function. 

Perhaps what we need is a national open justice tsar. The (unpaid) post would suit a legally literate high-profile individual capable of keeping the importance of open justice in the public eye by vigorously challenging moves to curb it, including by the judiciary and the great and good. Any volunteers? 

Michael Cross is Gazette news editor