In a guest blog for the Bar Council, journalist Tristan Kirk makes the case for open justice and the public's right to know.
A new law is likely to pass through Parliament within weeks which takes a scythe to the principle of open justice. Tens of thousands of magistrates court hearings each year will be swept behind-closed-doors and the vital principle that justice “must be seen to be done” will be permanently compromised.
The Judicial Review and Courts Bill (the Bill) has attracted more than its fair share of column inches since it was introduced last July by Justice Secretary Dominic Raab, with Parliamentarians debating long and hard on the merits of changes to the judicial review system.
Sadly, little if any attention has been paid to the act of vandalism being perpetrated on open justice, which will allow court hearings to be reduced to private messages between lawyers and the courts.
In the last few years, substantial progress has been made in promoting transparency within criminal justice, helping court staff understand the role of the media, and fostering an environment where court reporting – sometimes dismissed as a dying art – can thrive. I fear those strides forward will now be overshadowed by ill-judged and incredibly harmful reforms.
The damage is done in sections 6, 7, 8, and 10 of the Bill, opening the door for defendants and prosecutors to privately negotiate away the traditional first appearance in the magistrates court.
Defendants will be able to indicate their pleas in writing, the location of a trial will be set, and decisions on bail conditions and case management will all happen in a flurry of private messages and online forms.
In a 64-page explanatory note accompanying the Bill, the Ministry of Justice hailed court decisions “on the papers” and boasted of “removing unnecessary courtroom hearings”. There is not a single word in the proposed legislation or accompanying note on protections for open justice and the public’s right to know what is happening in the courts.
Whether these early court appearances are “unnecessary” or not very much depends on your perspective. More than 100 representatives of the media recently signed a letter to HMCTS, protesting the damage being done and pointing out we consider these hearings absolutely vital.
At the first court hearing, the prosecutor gets to their feet to explain – publicly – what the allegation at the heart of the case is. Often, we learn for the first time who is the alleged victim.
The defendant formally identifies themselves to the court, and indicates whether they admit or deny the allegations.
In the future, all these important steps will still happen. But privately, and crucially away from the media – the eyes and ears of the public. Astonishingly, it will be possible for a defendant to admit to a crime in circumstances where contemporaneous reporting has been rendered impossible.
When they first appeared before a court, two Met Police officers who photographed the bodies of murdered sisters Bibaa Henry and Nicole Smallman indicated guilty pleas and said they were “sorry beyond measure for the pain that they had caused”. For the first time, it was made clear how the sickening crime had happened.
Jo Cox MP’s killer Thomas Mair gave his name as “death to traitors, freedom for Britain” when he first appeared in front of a judge.
When four men were charged with “entering as a trespasser a dwelling, with intent to steal therein” in 2020, it was the open court hearing which clarified they were behind a £25 million raid on Tamara Ecclestone’s home in one of the biggest burglaries in British legal history.
Why – the media are asking – is it acceptable to sweep this kind of information into darkness and allow criminal cases to slip into the courts unnoticed and unreported?
First appearances have tangible value beyond what appears immediately in print, helping reporters to understand decisions that have been taken, how the case will progress, and assess the news value of the case. This will also be lost.
Justice Minister Lord Wolfson was challenged in the House of Lords that his reforms amount to “secret justice”, and he replied: “Magistrates’ courts will publish the result of these proceedings in the usual way”.
This betrays either a lack of understanding of the damage he is wreaking, or an acceptance that the government does not care. Traditional magistrates court results registers are thin on details and do not come close to replicating the events of a first appearance. They are often dispatched to the media weeks after court hearings have taken place and sometimes never arrive at all.
In the absence of dramatically new proposals to accompany the reforms, Lord Wolfson and Mr Raab are indeed opening the door to “secret justice”.
The consequences will, undoubtedly, be less court reporting. Our role is to help the public understand criminal proceedings, dispel suggestions of a “cover-up”, scrutinise the decisions of the court, and burnish confidence in the system. That is all about to get harder to achieve.
Lawyers will no doubt have to field an avalanche of questions and requests from journalists trying to report accurately on proceedings when they have been left in the dark. Pressure for prosecutors to outline allegations fully at the Plea and Trial Preparation stage will be irresistible, with the knock-on effect on the already-stretched crown court system.
What must be tackled sooner rather than later is how the media and public interest is served by a digitised courts service with a seemingly relentless focus on cutting out public hearings and driving ‘efficiency’.
The principle of open justice cannot be the afterthought it is right now.
Tristan Kirk is the Courts Correspondent for the London Evening Standard newspaper, part of the Crime Reporters Association and a member of the HM Courts and Tribunals Service Media Working Group.
He has been a specialist court reporter for the last 10 years, and now covers cases in the criminal and civil courts across London for the Evening Standard.