A fair and equitable outcome – in other words, justice – lies at the heart of our legal system: at least in theory, if not always in practice! But is it enough for justice to be done – doesn’t it also need to be seen to be done? We need to feel confident that judges and juries can be trusted to be just, that there is redress for error and accountability when decisions are made that will affect the rest of people’s lives. In other words: open justice inspires confidence.
Everyone’s hackles rise when we hear about closed door hearings and courtroom secrecy. We wonder ‘what is going on that we cannot be trusted to know about?’ Looking from the outside in, secrecy does not inspire trust, even if it is sometimes genuinely necessary – to protect, for example, the identities and welfare of children.
The family courts have come under criticism at times for allegedly unnecessary secrecy, and the court which rules on the welfare of vulnerable adults, the Court of Protection, has become especially contentious. In April, reports emerged in the press that it had jailed one Wanda Maddocks for contempt of court after she took her elderly father from his care home, in defiance of court orders. It was a complex case, and it is not my intention to revisit the details here. But as a result, the media spotlight fell firmly on the secret nature of Court of Protection hearings. They meet behind closed doors to protect the privacy of the individuals concerned but also have the power to jail individuals for contempt in closed hearings.
As Lynsey Colman noted in the Solicitors Journal earlier this year:
“The Court of Protection is gaining a reputation in the press for being secretive leading to allegations of corruption and abuse of powers. With the court looking after the affairs of the vulnerable, it can ill afford to be perceived in this way.”
Sir James Munby, President of the Family Division, has had lot to say about secrecy and open justice in recent months. In July he issued draft guidance on the publication of the approximately 95,000 family hearings which are held in private every year. Child contact and care cases should be published, he declared, unless there “compelling reasons” not to do so.
In August he issued strongly worded guidance on the importance of holding hearings on contempt of court charges in open court, declaring:
“It is a fundamental principle of the administration of justice in England and Wales that applications for committal for contempt should be heard and decided in public, that is, in open court.”
It seems this new concern with open justice goes right to the top, with the President of the Supreme Court himself, Lord Neuberger of Abbotsbury, expressing similar views. Speaking at an event this week to mark the start of the legal year, the peer said press campaigns on the topic of open justice served a valuable function:
“I think it is an important function of an open society that the Press and media remind us sometimes of the need to examine our practices and see if we do comply as much as we should with the need for open justice. And I think some of the campaigns – while not always well conceived or entirely right in all respects – the campaigns for improving open justice in the courts are to be applauded.”
The President also endorsed Sir James Munby’s focus on open justice in the family courts:
“What Sir James has done is bring a fundamental principle of justice about how the family courts function and he has emphasised the need to have open hearings as much as possible. We should try to minimise the extent of when it is necessary to go into closed session and do everything we can to ensure the consequences of going into closed session are mitigated.”
A court system with a firm focus on open justice is in everyone’s best interests.