Derogating from Open Justice: Principles and Potential Problems

Published: 22/12/2016

The principle of open justice is fundamental to the rule of law and to democratic accountability.

It is still difficult to better the eloquence of Lord Shaw of Dunfermline over 100 years ago in the case of Scott v Scott [1913] AC 417, where he turned to Bentham: “In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice.”

It has been equally recognised that there are exceptions to this principle. Lord Shaw’s remarks are to be read hand in hand with Viscount Haldane who stressed, also in Scott v Scott, that hearings in camera would be permitted where “strictly necessary”: necessary to the extent that “nothing short of the exclusion of the public can justice be done.” As Lord Diplock summarised in A-G v Leveller Magazine [1979] AC 440 (at 449 to 450), any departure must be “...justified to the extent and to no more than the extent that the court reasonably believes it to be necessary in order to serve the ends of justice”.

A recent restatement of the principle was given by the Lord Chief Justice earlier this year, in the well-publicised Guardian News and Media Ltd and R v Errol Incedal [2016] WLR (D) 67. There, the issue of derogating from open justice was bound up with issues of national security. The Defendant, Mr Incedal, had been charged with various terrorism offences. The Court of Appeal upheld various derogations from open justice, including the core of the trial being heard in camera and reporting restrictions. The appeal against these derogations was brought by the great and the good of the U.K’s journalism industry, including Guardian News and Media Ltd, Times Newspapers Limited, News Group Newspapers Limited, Associated Newspapers Limited, Independent Print Limited, Telegraph Media Group, the BBC, ITN, BSkyB Limited and the Press Association.

The Court of Appeal reiterated that the test was a “very strict” one and that open justice could only be departed from in unusual or exceptional circumstances. Before them was an “exceptional” case in that “the administration of justice would be frustrated were the trial to be conducted in open Court,” notwithstanding that doing so would mean that “public accountability for matters relating to the prosecution cannot be achieved through the press in its function as “watchdog” of the public interest”. Indeed, even in this national security context, the court derogated to the most limited extent possible in that the trial was divided into three stages: parts of the trial were heard in open court; parts were heard in camera but in the presence of accredited journalists who were able to take notes but not remove them or report on them; and parts were heard fully in camera. Furthermore, the issue of which parts of the trial would be held in camera was under constant review.

But open justice is not met by merely opening the doors of the court. It is met by holding proceedings the public are able to understand and follow. A necessary corollary of this is the ability for the public to inspect, wherever possible, the documents upon which proceedings are based. If private hearings can be considered a last resort, then a softer way to derogate from open justice is to maintain confidentiality over certain aspects of the proceedings. The most common way this is achieved is by way of CPR 31.22(2) or CPR 39.2(3) (which need not be discussed here) or by the parties entering a ‘confidentiality club’, where documents designated as confidential shall be seen only by a strictly limited number of people on each side, almost always professional advisers.

In Lily Icos Ltd v Pfizer (No 2) [2002] 1 WLR 2253, the Court of Appeal upheld an appeal from a patentee seeking an order to maintain the confidentiality of documents disclosed during patent revocation proceedings. It was argued that maintaining confidentiality over certain documents or disclosure might succeed in successfully avoiding private proceedings. There, confidentiality was maintained after the life of the case as the relatively limited role that the document in question played in the trial “enable[d] the court to take a somewhat less demanding approach to the claim for confidentiality than would otherwise be appropriate”. However, Buxton LJ was keen to point out that “the court should start from the assumption that all documents in the case are necessary and relevant for that purpose, and should not accede to general arguments that it would be possible, or substantially possible, to understand the trial and judge the judge without access to a particular document”.

If Errol Incedal was unequivocal as to the hearing of proceedings in private, Buxton LJ’s words in Lily-Icos Ltd cautioned against more procedural, softer ways in which open justice may be undermined. An observer could be forgiven for thinking the principles were clear and set.

However, unaddressed in these cases was what effect the advent of technology might have on open justice. In his Civil Courts Structure Review: Final Report, Briggs LJ noted (at 6.86) that the threatening of open justice by online justice was “plainly a concern that will need to be kept under constant review...as  a priority.” There, Briggs LJ had the small and moderate claims in mind – those cases that might best be served, for costs and practical reasons, by way of an online system.

Yet to date there has been no real, dedicated assessment of the risks technology may cause in other ways. For good reason, high value, complex litigation is increasingly using Magnum e-bundles for trial and interlocutory hearings. As time progresses, with the inevitable cost decrease and quality increase, an increasing number of cases will use e-bundles. The Rolls Building’s successful e-filing pilot scheme will be compulsory in Easter 2017. Procedures are very likely to be updated to take these developments into account. But there are questions that need to be asked. How will open justice be served when there is a firewall? Who will cover the increasing costs to maintain these servers? How will members of the public access soft-copy pleadings, or follow proceedings in soft-copy?

The problems with technology increase when, as in the aforementioned cases, there are arguments to derogate from open justice. In Errol Incedal it was permitted for accredited journalists to take notes but not report on what they had seen, or remove those notes from the court room. In an age where social media enables any observer to publish anything to the world at an instant, how feasible can such restrictions be? In cases run on online bundles, who will be responsible for ensuring any such derogations are met? How can online proceedings flit between being in public and in camera?

The technological advances over the last 20 years could not have been imagined by Lord Shaw. But their risks to open justice could be, and were. In his masterful judgment at Scott v Scott in 1913, Lord Shaw warned us all that “there is no greater danger of usurpation than that which proceeds little by little, under cover of rules of procedure, and at the instance of judges themselves”. Technological progress must be harnessed for the justice system. But it is imperative that Lord Shaw’s fear of usurpation is not realised - the benefits of soft-copy trials must not lead to a softening of the principle of open justice.

 

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