In this country, anyone can walk into a criminal court and watch almost any hearing involving an adult defendant taking place that day. They don’t have to make an appointment. They don’t need a reason for observing.

This principle of open justice allowed us to set up our courtwatching project three years ago, which recruits members of the public to visit magistrates’ courts, observe hearings and report back what they see.

But why are criminal courts open to the public?

Mr Justice Nicklin (quoted above) challenged advocates of open justice to articulate a good answer to this question, in a speech I saw him give in Oxford last year.

I was reminded of this challenge while reading some excellent research by Carolina Beresford. Carolina volunteered as a courtwatcher with us last year, while studying for her master’s at UCL. For her dissertation, she interviewed courtwatchers about what it was like to be an observer in a criminal court.

Carolina found that while many volunteers found courtwatching rewarding, observing criminal hearings left some feeling uneasy, as if they were doing something wrong.

One concern was that observing criminal hearings gave courtwatchers “unearned access to deeply personal information” about defendants: “One courtwatcher described observing a case in which a defendant was ultimately found innocent, but only after his entire mental health history had been laid out before the court. The courtwatcher who witnessed this form of personal dissection said that they would feel uncomfortable should they ever bump into him on the street. ‘I know too much,’ they lamented.”

Another courtwatcher pictured themself as a defendant and concluded they wouldn’t want random strangers observing their case. One volunteer described being looked at by family members of the defendant, who (understandably) were wondering why someone was writing notes about their loved one’s court hearing.

These concerns show how courtwatchers’ respect for other people’s privacy was at odds with their desire to make courts better by observing hearings and reporting back issues. Reading the research made me realise that we hadn’t properly discussed with courtwatchers why we think open justice is so important in principle and in practice.

So here are three reasons why Transform Justice believes it’s important for members of the public to observe criminal hearings:

• To reform the system. Our justice system is supposed to give everyone a fair trial. That means defendants being able to understand what is happening and participate properly in their hearing. But what should happen in theory does not always happen in practice. Magistrates’ courts are rarely covered by the media. It is only by observing courts that we can see for ourselves how fair trial rights are applied (or not), gather evidence on the issues, and use it to argue for change. This purpose is central to our courtwatching project and reassured some of the volunteers that Carolina interviewed: “Yes, I have defendants that look at me and must be wondering why I am there. Yes, it is uncomfortable, but if it’s something that I can do to help down the line, to reform the system… It’s uncomfortable, but the idea is that you have to do uncomfortable things in order to do good.” 
• To understand the realities of low-level crime. One volunteer said of their experience courtwatching: “I have probably nursed a few stereotypes about ‘criminals’. I think I now have a much broader view of those who commit offences.” The media depicts those stuck in the court system as ‘bad’ and ‘other’, getting themselves into situations that right-minded upstanding citizens never would. Observing courts shows you how far that is from the truth. Many people brought before the court are there because they have been failed by the services that are meant to help them. One courtwatcher said: “it has made me think that a lot of people end up in court because they are having a chaotic life, addictions, no job, no home and that this causes crime, not the other way around.” Courtwatching shows people how ill-equipped the court system is to support people facing these challenges, and builds empathy for the defendants as a consequence. One courtwatcher told us observing courts prompted her to “try (don’t know if I shall succeed) to be more open-minded and less judgemental.”
• Solidarity. “For some defendants, the presence of an unfamiliar courtwatcher might offer solace or a sense of support” writes Carolina. One courtwatcher she interviewed described a defendant who approached them after their hearing: “After he was released, he came up to me and started shaking my hand, saying, ‘Thank you, thank you so much for being there, thank you!’…I looked around and was like, ‘Why? I didn’t do anything’, but he repeated, ‘Thank you, thank you for being there!’ It was weird, it was really weird.” When asked why they thought he did that, the courtwatcher said “probably because I was the only other person of colour in the room…that was when it struck me. The imbalance. People in the dock must think, ‘There is no-one who looks like me in this room.’”

So we were guilty of Nicklin’s charge – assuming that everyone agreed that open justice was important and why. We’re restarting our courtwatching later this year, this time opening up to volunteers and magistrates’ courts across England and Wales. I look forward to talking with potential recruits about why courts are open – hearing what they think, and what their concerns are, so they can feel confident observing courts. As this courtwatcher said: “I wanted to help shine a little light into a system that has a huge impact upon society, but which operates in obscurity.”