Earlier this year, the government launched ‘Open Justice: the way forward’, a call for evidence on how it can better support and strengthen the openness of our courts and tribunals service. In this article Nick, John and Sophie explore some of the key points raised in the Bar Council’s response, which was written by members of the Bar Council’s Legal Services Committee, the Law Reform Committee and the IT Panel, ranging from the current ‘problematic’ publication of court listings to the ‘transformational’ potential filming of courts has on the relationship between the public and the justice system.

‘More can and should be done’

Nick Vineall KC, Chair of the Bar

Open justice used to mean simply leaving the court door open. In the last 20 years, great improvements have been made: it is easier, though still not always easy, to access case decisions; there is some live streaming; and some remote access to hearings. In particular, the appellate courts have led the way in making proceedings available to watch online, and in the Crown Court some sentencing remarks are now televised. Justice must not only be done but seen to be done, and open courts allow people to test their prejudices about the legal system, about judges and about lawyers, by watching what actually happens.

Increasing use of IT has helped open justice, but it is creating its own fresh challenges too. For example, the Single Justice Procedure and the online plea and allocation system, both undertaken behind closed doors, make it difficult for journalists to review what is happening in the courts.

Consideration should be given to extending filming to other parts of the legal system, as broadcasting court proceedings can be a very effective way of improving public knowledge of the justice system. Inquests, magistrates’ courts, tribunals, and the High Courts could, in principle, all be filmed. Lord Burnett in his final speech as Lord Chief Justice said that the success of broadcasting sentencing in serious criminal cases provides a ‘strong argument that we need to go further’, adding that livestreamed sentencing could be expanded to more cases and that High Court challenges against the government might be suitable candidates for broadcasting where there is intense public interest. We agree.

The Bar Council supports Open Justice, and we should constantly be striving towards greater openness and easier access.

‘A window has been opened into our justice system... it is the time to push it further open’

John Battle KC, ITN’s Head of Legal and Compliance and Chair of the broadcast group filming court proceedings

On filming of courts, significant strides have been made in recent years. At the beginning of this century no filming of courts took place in England and Wales, but now the Supreme Court, the Court of Appeal and sentencing in the Crown Court are regularly filmed. The changes arose largely from a campaign by ITN, BBC, Sky News and PA in consultation with the Ministry of Justice and senior judiciary.

Since July 2022, filming of sentencing has become the norm. Many of the cases have been broadcast live, streamed online, on social media and shown on scheduled news programmes. Nearly 40 sentencing hearings have been filmed in Crown Courts throughout the land. Many people will have seen sentencing for the first time, including many younger people watching online or on social media. It is fair to say that the broadcasting of proceeding has been a success. Contrary to fears, the justice process has not been adversely affected, lawyers have not been grandstanding to the cameras and the sky has not fallen.

The Bar Council’s response to the recent consultation states that, subject to safeguards, filming in other parts of the legal system warrants consideration, for example, filming of judicial review proceedings. The response also recognises the obvious dangers in the Family Court or the Court of Protection. The Bar Council was a pioneer on the issue of cameras in court. As far back as 1989, the Bar Council recommended filming of court proceedings subject to ‘strict rules of coverage and to the supervisory discretion of the trial judge to exclude the camera whenever it was necessary in the interests of justice’ (report of the Working Party of the Bar Council, chaired by Jonathan Caplan KC, ‘Televising the Courts’ (1989)).

It is vital that the justice system occupies a central position in public thinking and the public eye. The debate on filming the courts in England and Wales was dominated for too long by an over-focus on potential downsides. Now with the benefit of seeing filming in many courts, it is clear these fears have not been borne out. The broadcasters have proven they can be trusted, and the benefits are significant, not least in promoting the rule of law and informing the public of the work of the courts and judiciary.

A window has been opened into our justice system. Filming of courts can truly transform the relationship between the public and our justice system. It brings to life the public’s right to see justice being done. It is the time to push the window further open.

‘Lack of uniformity hinders open justice’

Sophie Caseley, Garden Court Chambers and the Bar Council’s Legal Services Committee

Open Justice should mean that reported decisions, listings, and certain documents are accessible to the public. The Bar Council’s response highlights the lack of uniformity across courts and tribunals in these areas.

It can be very difficult for non-professionals to locate case law because there is no reliable and public database where these are available across all jurisdictions, including from lower and specialist courts (such as the Court of Protection) as well as older decisions (for example, from the Immigration Tribunal). There is no one dedicated place where the public can search for decisions meaning the law is, in practice, inaccessible to many.

Publication of court listings is problematic and prevents effective engagement with the court. They are published too late in the day when the court is not able to take telephone calls and answer queries, and often omit essential information such as the name of the judge’s clerk and any reporting restrictions. This could be much improved by standardising the format of the lists across the courts and making them available to the public at an earlier time in the day.

Accessing documents – such as pleadings and witness statements – as a non-party is very challenging. The response highlights the lack of guidance from most courts and tribunals of the procedure for requesting documents pursuant to the Civil Procedure Rules. This is despite the Supreme Court’s guidance on this issue in Cape Intermediate Holdings Ltd v Graham Dring (for and on behalf of the Asbestos Victims Supports Groups Forum UK) [2019] UKSC 38.

To read the response in full, head over to the Bar Council’s website. For guidance on dealing with the media, see the Bar Council’s ethics hub.