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October 18, 2019

There is no justice without independent and unafraid judges

This week a former judge, Claire Gilham won her case to have her rights as a whistleblower respected. The Ministry of Justice had claimed that judges are not employees and therefore did not enjoy these rights. The Supreme Court disagreed. Former District Judge Gilham responded to the judgment “You can’t have justice without independent and unafraid judges, and if judges can’t speak out to protect the court system, then justice suffers and the people caught up in the system suffer too.” Ironically, through fighting this case, the government may have opened the floodgates to judges who want to complain openly about matters of interest, in this case crumbling courtrooms and inadequate security. Judge Gilham did not in fact complain openly, but to senior court staff and judges. She claims she was bullied as a result.

Judges don’t usually speak out internally or externally because they are terrified of the consequences. They are unclear where the line is between comments which compromise their judicial independence, and those which don’t. A magistrate I know was disciplined for telling a harmless anecdote about her brother’s addiction problems, which was taken up by a local newspaper.

It is odd that judges, who should be the champions of open justice, cannot speak openly. And that the plans for open justice as part of the court reform programme (which the judges are helping to shape) are so opaque.

Not all court proceedings should be open to everyone but the system and information about it should always be accessible. Digital court reforms are being introduced to make the court system more efficient and effective. The courts service and the judges have always given assurances that the principles and practices of open justice will be maintained. But the current standards of openness in the some courts and developments in digital justice suggest otherwise.

I discussed the single justice procedure with the public accounts committee the other day. Criminal courts used to be the most open of the jurisdictions, but the single justice procedure now deals with over half of all criminal offences and the process is closed. Defendants who plead guilty or who don’t respond to a postal charge (to say non payment of the TV licence), have their cases judged in a closed court by a single magistrate. Lists of such cases are posted outside the court-room but the court-room door is closed.

Tristan Kirk, the courts correspondent for the Evening Standard, pointed out the deficiencies of SJP when reporting the details of a case involving David Beckham in March last year: “Beckham’s case [which was for using a mobile while driving] does not appear on the court list issued to journalists in advance. So presumably all other SJP cases are also not listed. We have long since stopped receiving the outcomes of SJP cases from courts in London. At best we can find out whether Beckham pleads guilty, and if he does, his punishment. But unlike all other court cases where there’s an actual hearing, we’ll never know the circumstances of the offence, mitigation offered by the defendant, and why the punishment was reached”.

HMCTS have improved access to listings of SJP cases (each days’ cases are available online) but the fundamental challenges from Tristan have not been addressed. And I, as an interested citizen, cannot even see the process a defendant goes through to plead to an SJP offence online. The government has also launched online court processes for divorce, probate, social security appeals. In these cases you can see the paper form, but you can’t see how the process works online unless you actually have a case, nor can anyone access details of any individual hearing and how and why a particular outcome was reached.

Meanwhile journalists who do have the right to observe normally closed courts like the youth court, are being denied access. Sarah Marshall is a local court reporter to the Sheffield Star. Accredited reporters have automatic access to the youth court. But Sarah recently struggled to get in: “As soon as I entered the court I informed the usher that I was a member of the press, showed her my press card & told her the relevant part of the act that allows us access. She went to a legal adviser, who told me the press were not allowed access. I reiterated the law again. She then said that I would have to make an application to the magistrates. I told them I did not need to make an application because it was an automatic freedom awarded to members of the press. They told me I was wrong, and was asked to wait outside while they made a decision”. She eventually got in, but only because she was persistent and well-informed.

Open justice is an important aspect of access to justice. And the rule of law is compromised if people in the system can’t speak out and if the public and journalists can’t get in to real or online hearings. For all those who want developments in open justice to be better scrutinised I recommend getting involved in the UK open government network. Dr Judith Townend has blogged for them and written a report focusing on opening up information about cases.