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June 13, 2018

Justice must not just be done, but be seen to be done

Pamela Attfield was interested in putting in a small claim and so wanted to observe her local court in Watford. She assumed small claims hearings like this were open. But she was wrong. She was banned from observing by the judge despite guidance that “members of the public are free to sit and listen”. Pamela complained about her treatment but was told that “the judge was entitled to conduct the hearing as she thought was in the best interests of the parties involved” and that the only way to get redress would be sue the judge! Manchester University law students must (rightly) observe criminal courts. Dr Hannah Quirk, their lecturer, says “several had problems this year being asked to explain their presence and were told ‘the judge doesn’t like it’”. We have the illusion of open justice now, but not the reality.

So proposals to put justice online and on skype are even more worrying. Already there are people in prison who have never seen their lawyer or the judge who convicted them and victims who have never seen the whites of the eyes of their assailant. Thousands of hearings are now conducted on video and the government proposes that many court hearings should be held entirely virtually, with no one in the court room, and every participant on a different ipad. Other criminal, family and civil cases will go online. Court hearings where defendants plead guilty or not guilty will be replaced by a mobile phone app, and there will be precious few small claims hearings for the public to observe, since they will go online too. Its one thing to apply for a passport online, or for something relatively straightforward like probate. But should criminal cases, which bring with them lifelong criminal records, be subject to an automated process? And if that process goes wrong, how can the public scrutinise it? Justice must not only be done, it must be seen to be done, but these online and virtual processes threaten to close down justice.

Already the system for dealing with minor motoring convictions online has caused injustice. Motorists who missed online instructions to send their paper driving licence by snail mail, were financially penalised by the courts. However,  in investigating this I couldn’t access the webpage that was causing the problem, because it is not accessible to outsiders. The government and the judiciary assure us that as a result of their digital reforms “the public should be able to see and hear that which they can currently see and hear in court”. But they have no viable ideas on how to achieve this. They have floated the idea that members of the public and the media should still go to a court to observe cases, but sit in a booth watching the participants on a video screen and listening on headphones. Ironically, judges are currently being privately consulted on how open justice might be achieved in the digital world. Yet the government do not plan to hold an open public consultation on how to keep justice open.