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February 10, 2019

Court hearings on demand – a triumph for openness or an invasion of privacy?

The other day the senior judiciary published the actions they’d agreed as a result of their consultation of colleagues about digital court reform. All deal with the issue of open justice, which seems to be of great concern to rank and file judges. The responses in each jurisdiction are slightly different. Many tribunal proceedings are going online – so how can the public get access to an online/virtual process? Lord Justice Ryder responds:
– “The design concept is to afford appropriate scrutiny to the public by digital means as an alternative to or in addition to open hearings
– The identified solution is to record all Tribunal hearings as the primary ‘record of proceedings’ under the Rules, to identify a recording solution for video hearings and continuous online resolution and to identify which hearings are to remain face to face and open and which are to be digitally open
– Recording will be made available to be watched or listened to by members of the public”.

The criminal paper doesn’t really address the challenges of making online court processes open but does address how to make virtual hearings accessible to the public:

“Where hearings are to be conducted by telephone or fully video (i.e. no one in court, all parties connected via technology) I believe that open justice would be secured by a live link to a viewing area in the court building where the case is listed. The judge or bench would be aware that the hearing was being observed; staff would supervise any such area. This would address your powerfully expressed cogent concerns about live streaming, broadcasting, recording or interfering with the footage. In August, we made that suggestion to HMCTS and, in October, their open justice team made some general and wide-ranging proposals to the JRB. We have sought confirmation that our simple, practical proposal will be put in place. The live link from my Inquiry (from court to a tent in the Quad at the RCJ) was entirely successful and should not be difficult to replicate. I would not be averse to a hearing being viewable in another court building in addition to the court where the case is listed provided that people in the locality where the offence occurred (where the hearing will be listed) are able to observe it…Let me be clear. Nothing will be done to reduce the openness of the criminal court process or to undermine it”.

I am astonished that the open justice challenges of the digital court reform programme have not had more scrutiny. And these judiciary documents beg more questions than they answer

  • is the government proposing to make radical changes to the way the public and journalists can access court hearings without any formal public consultation?
  • is HMCTS proposing that parliament should scrutinise these proposals? The documents suggest not – that only secondary legislation will be used.
  • what is aired in many court and tribunal proceedings is intensely private and personal. Currently those members of the public who visit the tribunal or courts in person can witness the hearing live. No recording is available. It is a very different thing (as proposed) to have those proceedings available for anyone to watch online. Is this acknowledged?
  • Has the government done research with plaintiffs, defendants, lawyers and witnesses about these open justice proposals?
  • If the public will only be able to observe criminal court hearings by going into a viewing booth in their local court, will they bother?
  • What will be the impact of these radical changes to open justice on confidence in the justice system?

As ever very interested in your views….