New working papers launched: ‘Justice Wide Open’

New publication calls for an increasingly open and digitised approach to open justice

The real “democratic deficit” in the courts is about limited public access not “unelected judges“, Adam Wagner, a barrister at One Crown Office Row, argued on the UK Human Rights Blog at the weekend, challenging a recent political and media narrative.

In his view, the internet age necessitates “a completely new understanding of the old adage ‘Not only must Justice be done; it must also be seen to be done‘”.

Wagner is one of 14 authors who contributed to a new working publication entitled ‘Justice Wide Open’, produced by the Centre for Law, Justice and Journalism (CLJJ), City University London, following an event on February 29 2012. The individual chapters can be accessed electronically.

The new collection of working papers is part of a wider project encouraging ‘Open Justice in the Digital Era‘. The issues are extensive and diverse: the recommendations of the government’s ‘secret justice’ green paper, now the Justice & Security bill, which would see more cases behind closed doors; the decline in local and national court reporting as a result of cuts in journalism; the courts’ barriers to entry due to ill-informed staff; and the difficulties in obtaining free legal information.

“In the 21st century, open justice should be online justice”

By Judith Townend

“In the 21st century, open justice should be online justice,” David Banisar, Article 19.

The Guardian has succeeded in its legal bid to gain access to court documents in extradition proceedings (listed at the end of this post).

The Guardian has been seeking access to documents used to justify the extradition of two Britons, Jeffrey Tesler and Wojciech Chodan, to the US. After they were sent to Texas, the pair pleaded guilty to taking part in a decade-long conspiracy to channel bribes worth $180m to Nigerian officials and politicians. (Guardian, 3.04.12)

In a judgment handed down today (Guardian News and Media Ltd, R (on the application of) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420) the Master of the Rolls, Hooper LJ and Toulson LJ granted appeal of an Administrative court decision which dismissed the Guardian’s claim for judicial review, following a District Judge’s refusal of access to certain documents.

“Although I disagree with the reasoning of the courts below, I recognise that this decision breaks new ground in the application of the principle of open justice, although not, as I believe, in relation to the nature of the principle itself,” Toulson LJ [90].

Brid Jordan, Reynolds Porter Chamberlain LLP, who acted for the Guardian, explains

The Court of Appeal has ruled that where documents have been placed before a judge and referred to in the course of open proceedings, the default position should be that access should be permitted on the open justice principle. Where access is sought for a proper journalistic purpose the case for allowing it will be particularly strong.

The campaigning organisation Article 19 made a submission in the case (embedded below) which the judgment praised for its “helpful and interesting survey of the approach which has been taken by courts in other common law countries“.

The Court of Appeal judgment comes a month on from the Centre for Law, Justice and Journalism event, Justice Wide Open. In a comment piece for the Guardian marking today’s judgment, Article 19’s senior counsel David Banisar (left) said that the CLJJ event had

…revealed that there were many legal and practical limits to open justice. Few local newspapers now cover local courts and even the larger national media only attend a few cases; transcripts remain the commercial property of the court reporters and video and audio recording of cases is forbidden for reasons that are hard to understand; non-media such as community micro-sites have little access to anything; the FOIA only has limited application to the courts.

Crucially, Banisar flagged up that in the Guardian’s case,

…the growing practice of judges and the lawyers moving to a more document-focused case system and referring to documents that are only partially read out triggered the need to change the rules.

He argued that taking today’s decision forward, the UK should now adopt a similar approach to the US courts – one of “proactive disclosure”.

This blog post opened with the final sentence of Banisar’s piece: “In the 21st century, open justice should be online justice.” That is the central tenet of the Centre for Law, Justice and Journalism’s ‘Open Justice in the Digital Age’ project, which we launched with the Justice Wide Open event on 29 February 2012. For more information please visit the project page here. A publication with contributions from the speakers at the event is forthcoming.

Geoffrey Robertson QC: Press ‘must do better to protect open justice’

By PA Media Lawyer

The press needs to lift its game if the principle of open justice is to be maintained, a senior QC has warned.

Part of the rationale for open justice was that it meant that judges were themselves under trial while conducting cases, because of media and public scrutiny, and that the public was educated by reports of what was happening in the courts, said media law and human rights specialist Geoffrey Robertson.

“There has been very little informed criticism of the judicial performance of our judges,” he told a conference entitled Justice Wide Open, at City University London, on February 29.

“The media, it seems to me, are third rate, compared to the American media, where appointments to the Supreme Court are covered critically by a lot of experts and a lot of legal journalists,” he said.

“Here the level of coverage of the courts – and certainly critical coverage – is very poor. The number of journalists in courts has been cut.”

But little encouragement was given to critical journalism, Mr Robertson said.

Read the full article at PA Media Lawyer here (subscription required). Papers from the conference will be published later this spring, in a Centre for Law, Justice and Journalism publication. See the project page for more details.

Digital age poses challenge for jury trials

By PA Media Lawyer

The jury system might need to be changed to allow jurors to play a more active part in trials as a result of the advances in technology which brought the internet, micro-blogging and social websites such as Twitter and Facebook, a conference was told.

At present technological advances posed two dangers to trials in criminal cases, said Professor Ian Cram, Professor of Comparative Constitutional Law at the University of Leeds (left).

“We can characterise the dangers that arise in two ways – jurors who do their own research, producing information flowing into the jury room. Facebook and Twitter facilitate this sort of flow of information,” he said.

“Information also flows out of the jury room – jurors may send Tweets or updates on their jury room experiences in real time, including on how their deliberations are going,” he told the Justice Wide Open – Open Justice in the Digital Age conference at City University London, on February 29.

Read the full article at PA Media Lawyer here (subscription required). Professor Cram’s paper will be published later this spring, in a Centre for Law, Justice and Journalism publication. See the project page for more details.

Justice Wide Open: courts and legal information in the digital age

On Wednesday 29 February 2012, academics, lawyers and journalists gathered to discuss open justice in the digital age at City University London.

The programme included context and history, issues for the media and an academic perspective. Speakers included: Geoffrey Robertson QC; Hugh Tomlinson QC; Heather Brooke, journalist and author; Mike Dodd, editor of PA Media Lawyer; and Professor Ian Cram, Professor of Comparative Constitutional Law, University of Leeds.

Later in the spring the Centre for Law, Justice and Journalism will be releasing a set of papers from the event and also work on practical recommendations to take forward. Please contact judith.townend.1@city.ac.uk if you would like to be involved or have suggestions.

In the meantime, here are some links to reports elsewhere, tweets, photos and audio.

• UK Human Rights Blog – ‘Justice Wide Shut’
• The Guardian, ‘Court short of basic information’
• Talk About Local – the collision between uncodified open justice and copyright/data protection
• George Brock – court, news and the record: a shocking information gap
• Tweets from the event

Audio recordings & slides

• Opening talk with Geoffrey Robertson QC

• Session one, with Hugh Tomlinson QC, David Goldberg, information rights academic and activist; and Emily Allbon, City Law School librarian [slides] (chair: Professor Howard Tumber).

• Session 2, with Heather Brooke, journalist and author; Mike Dodd, editor of PA Media Lawyer; Adam Wagner, barrister; William Perrin, founder of Talk About Local [slides] (chair: Judith Townend).

• Session 3. An academic perspective, with Professor Ian Cram, Professor of Comparative Constitutional Law, University of Leeds [slides] and Dr Lawrence McNamara, Reader in Law and ESRC/AHRC Research Fellow, University of Reading (chair: Professor Ian Loveland).

Registration open for ‘Justice Wide Open’ event on legal knowledge in a digital era

The Centre for Law, Justice and Journalism will be hosting ‘Justice Wide Open’ on Wednesday 29 February 2012 at City University London from 9am-2pm. It’s free to attend but registration is required.

Geoffrey Robertson QC will open the event with a talk on ‘Alphabet Soup and the judicial retreat from open justice’. Three sessions will cover the history and context of the flow of legal knowledge; legal reporting and the media; and an academic perspective on open justice.

Speakers include: Hugh Tomlinson QC, Matrix Chambers; Dr David Goldberg, information rights academic and activist; Emily Allbon, law librarian, City Law School; Heather Brooke, journalist and activist; Mike Dodd, editor of PA Media Lawyer; Adam Wagner, barrister, One Crown Office Row and editor of the UK Human Rights Blog; William Perrin, founder, Talk About Local and member of the Crime and Justice Sector Panel on Transparency; Professor Ian Cram, Professor of Comparative Constitutional Law, University of Leeds; Dr Lawrence McNamara, Reader in Law and ESRC/AHRC Research Fellow, University of Reading.