News focus: UK failing ‘open justice’ tests

Millions of viewers of the Netflix hit documentary Making a Murderer have followed the case of Steven Avery, who spent 18 years in a Wisconsin prison for a sexual assault he did not commit. But any smug feelings about the superiority of justice in England and Wales were punctured last week by Dean Strang, one of the attorneys who acted in Avery’s appeal.

Such miscarriages of justice would be harder to expose in the UK than the US, Strang said – because of a lack of openness throughout the criminal justice system. He was speaking at the launch of an open justice charter drawn up by the Centre for Criminal Appeals, which says British justice is lagging behind even the poorest states in America when it comes to access to information.

An example is the contrasting attitude towards access to court transcripts. In England and Wales, these must be paid for, at costs running into thousands of pounds – if they are available at all. Official policy is to erase audio recordings of proceedings after seven years. Strang described the practice as ‘ludicrous’. In the US, he said, all interested parties get automatic access, if necessary at public expense (this is nearly always the case with convicted offenders, 85% of which are classified as ‘indigent’).

‘Members of the media can order a transcript which, unless it is a very long trial, will be at pretty trifling expense,’ he said.

The five-part charter calls for:

• Recordings of all court proceedings to be available free of charge. The unavailability of a complete recording of the trial should in itself be grounds for appeal;
• Police documentation to be available to the defence unless the police can give the trial judge a specific valid justification for non-disclosure;
• Individuals seeking to appeal a conviction should be granted controlled access to exhibits and evidence for forensic examination.
• Journalists should generally be allowed to visit prisoners with the consent of the prisoner. Where this is disallowed, the burden of proof should be on the prison governor; and
• Materials obtained or produced by the Criminal Cases Review Commission should be made available to representatives of applicants.

The need to correct miscarriages is an obvious argument for open justice. But the charter is being launched at a time when Lord Halsbury’s 1911 statement that every court in the land was open to every subject of the king is under creeping attack.   

Divorce proceedings are one battleground. Last month, in a private hearing in the Family Division, Mr Justice Bodey ruled that a divorce settlement between a businessman and his wife could not be reported as neither party was a celebrity or courted public interest or acclaim, while the pair’s children had a right to respect for private and family life. The national media are challenging what The Times describes as a ‘drift towards secret justice’ with ‘an ever-wider range of litigants and defendants seeking anonymity in an ever-wider variety of cases’.

Open justice may also be under threat from the Online Court proposed under the Ministry of Justice’s money-saving reforms. William Perrin, a former Cabinet Office civil servant and transparency campaigner, has coined the phrase ‘Shrödinger’s justice’ to describe what will happen when a large part of the volume of court proceedings happens in a virtual black box. ‘I am concerned that the common law tradition of open justice – both access to information about court services and witnessing by the public or their proxies in the media of the judicial process – is underserved in these proposals,’ he says.

With the demise of traditional local newspapers, many magistrates’ courts are already operating effectively in secret. Even court listings are not routinely available except to approved newspaper editors, despite a Criminal Procedure Rule Committee recommendation three years ago that they be published online.

Academics, meanwhile, are concerned at the threat. Judith Townend, lecturer at the University of Sussex, says that ‘all sorts of responsible actors’, including researchers and non-governmental organisations, are frustrated by lack of transparency. ‘The problem is piecemeal and changing rules. Open justice can take different forms in different contexts, but it is crucial that the underlying procedure is transparent, even if some information is legitimately withheld.’

Perrin proposes that all data created in the criminal justice system should be published as ‘open data’. He stresses that ‘open data’ does not mean that it is posted for everyone to see. Strict penalties should remain for illegal use of data, for example to circulate details of juveniles, victims of sex crimes, or of convictions covered by the Rehabilitation of Offenders Act 1974.

However, openness must be designed in to the system – and the implementation of new IT systems is the time to do it: ‘Online court transparency has to be there from the earliest stage. There is a golden opportunity to make a broader statement on opening up data and information in the justice system as a whole here.’

Whether the government will be sympathetic remains to be seen. Commenting on the open justice charter launch, the Ministry of Justice said: ‘We have a world-leading legal system and we are committed to upholding and strengthening the principle of open justice.