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From Mystery to Transparency

In a post derived from his recent participation in the 2019 Putney Debates, Paul Magrath of ICLR explains the various ways in which judges promote public understanding and respect for what they do.

When, in that seismic moment in 2016, three High Court judges were accused by the Daily Mail of being ‘Enemies of the People’, and subjected to similar trolling elsewhere in the media, the reaction of many in the legal profession was that it was for the Lord Chancellor to stand up and defend the judiciary and the rule of law. But the Lord Chancellor herself, Liz Truss, commenting on the fallout of this incident in an interview on BBC Radio 4 Law in Action, said she thought ‘the way we build judicial morale and judicial value is by the judiciary themselves talking about what they do’.

The current Lord Chief Justice said much the same thing in his last end of year press conference, when he spoke of the ‘benefits of promoting a better understanding of the work of the judiciary and the rule of law’. Lord Burnett of Maldon CJ highlighted a number of ways in which the judiciary have become more engaged in that process.

Recently I was asked to participate on a panel on the topic of judicial independence and how it might be protected, as part of the Putney Debates 2019, The Courts: Friend or Foe? I used the ten minutes’ speaking time I was given to set out, briefly, how I thought the judiciary could boost public understanding of what they do in four distinct ways. I expand on these below, but I want to preface my survey with two more general observations.

Accessibility and openness

First, there has been a sea-change in the relationship of the judiciary and the general public in recent decades. In 1955, the then Lord Chancellor (who until recently occupied a senior judicial as well as ministerial role) offered the following explanation of what might be called the Doctrine of Judicial Reticence:

‘So long as a judge keeps silent his reputation for wisdom and impartiality remains unassailable: but every utterance which he makes in public, except in the course of the actual performance of his judicial duties, must necessarily bring him within the focus of criticism.’

That statement by Lord Kilmuir belongs firmly to what one might think of as the Age of Deference, when as far as the general public was concerned the judicial function was largely a closed book – much of it in Latin – and shrouded in mystique.

We have come a long way since then, and what the judiciary have lost in deference and mystery they have gained in public awareness and transparency. And that is a good thing. The respect in which they judiciary are held, if deserved, should be based on knowledge, not mystique. (Likewise, any lack of respect should be based on facts, rather than ignorance and prejudice.)

My second preliminary observation concerns the importance, regardless of how accessible the judiciary themselves might be, of the principle of open justice. This means that only in the most exceptional circumstances should the work of the judiciary be concealed from public view and the possibility of public scrutiny. Access to justice is not confined to litigants; it includes everyone who needs or wants to find out about the law and how it is being applied in the courts.

I now come to the four main ways in which the judiciary promote public understanding of their role and of the rule of law more generally.

1 Giving judgments

This is the core function of judging. No one can be a judge who cannot make up their mind about the issues in a case and come to a decision. But in the context of open justice and in a common law system where judges not only decide individual cases but, in doing so, apply, interpret and develop the law, it is crucial that they explain their reasons clearly.

Lord Neuberger, in 2012 when he was President of the Supreme Court, giving the first annual BAILII lecture, entitled No Judgment, No Justice, said

‘the fact that legal professionals are trained to read judgments is no excuse for poor judgment-writing. … They are only part of the audience. Perhaps somewhat idealistically, it can be said that they are not even the most important part of the audience. The public are the real audience, even if the public seems happily indifferent about almost all court Judgments.’

Whole books have been written about legal clarity and the writing of judgments. The point Lord Neuberger went on to make is that, as well as being accessible in the sense of being clearly written, judgments should also be accessible in the sense of being available for perusal by the general public – which was where BAILII came in. (‘Enhancing’ judgments with headnotes, annotations and a summary of arguments was, he said, a different function, for which he was kind enough to highlight the work of ICLR.)

Although an increasing number of judgments are, indeed, freely accessible to the public via BAILII, many still aren’t. It was to boost the availability of judgments in family courts and the Court of Protection that the then President of the Family Division, Sir James Munby, in 2014 for giving Practice Guidance on Transparency ([2014] EWHC B3 (Fam); [2014] 1 WLR 230; [2014] 2 FCR 226).

The intention was that even where cases were heard in private, to protect the parties, a suitably anonymised judgment could and should still be published. This would enable the public to see and understand what was being done in their name. The guidance came after a speech in 2013 when he had said: ‘I am determined that the new Family Court should not be saddled, as the family courts are at present, with the charge that we are a system of secret and unaccountable justice.’

Though the ‘secret courts’ trope has persisted, the transparency agenda has resulted in vastly more judgments being published and an increasing expectation that publication should be the default position, not the exception.

2. Speeches

Judges must still take care when giving speeches not to deal with any topic on which they might face a conflict of interest, because of a case coming into their court for example. Accusations of judicial bias are rare, but if you comment on a controversial topic such as divorce reform or access to abortion, and then a case on such a point comes into your court, there is a risk that people will think you have already made up your mind.

Subject to that, speeches, lectures and other public appearances are a very good way of enabling judges to explain their role, and to increase public understanding of what they do, without in any way compromising their independence. The fact that speeches are routinely published online and may be reported in the media means that the benefit of what they say can be spread far wider than the particular audience to whom they were addressed.

3. Engaging directly with the media

It is not a good idea to be a ‘media darling’, let alone a celebrity, but, done carefully, judicial engagement with the media can undoubtedly be beneficial. As with giving speeches, judges can write articles for the press, or give interviews (eg to Law in Action). Some can even do press conferences, although usually that would only be done by senior ‘managerial’ judges such as the Lord Chief Justice, the President of the Supreme Court, or the heads of divisions.

On rare occasions, a judge may address the media directly in court. I don’t just mean in relation to explaining the reporting restrictions, but for example when enlisting their support in finding a runaway parent who has absconded from justice with a child who is the subject of family court proceedings. A recent example of the latter was the case of three-year-old Olly Sheridan: see Transparency Project, Update on the case about missing Olly

The final and perhaps most obvious way of engaging with the media is to allow their cameras into the court. I’ve written about this elsewhere on this blog: see Cameras in court – transparency in the eye of a lens?

4. Social media

This is more controversial, though I don’t really understand why it should be. These days the judiciary use mobile phones and laptops as a matter of course, and the massive courts reform programme currently under way will make them masters of video conferencing and digital case management as well. So the idea that they are too fuddy-duddy or insufficiently tech-savvy to use social media simply doesn’t withstand scrutiny.

The main problem with judges using social media, such as Twitter or Facebook, or writing or commenting on blogs, is not that they don’t know how to, but that they’ve effectively been banned from doing so. I wrote about this in an earlier post, Judicial blogging: How judges get around the official ban on writing or contributing to ‘web logs’

I happen to know that a number of judges are on Twitter, but without identifying themselves as such. Nor, in many cases, do they engage in discussions about legal matters. They don’t as one High Court judge put it to me, ‘get down with the kids on Twitter’. But they see what’s going on, and that’s no bad thing.

Things are different in the United States, for example. I follow a number of judges, who use social media, not just Twitter but also Facebook and Instagram. They talk about their private lives, just like anyone else, but they also use these channels to explain their work and the workings of the legal system to their followers and the public as a whole. It seems to be not that different from writing a local court newsletter or, occasionally, writing a letter to the press.

Like everything else I have outlined, it is all part of the transition from mystery to transparency.

Paul Magrath is head of product development at the Incorporated Council of Law Reporting for England and Wales (ICLR) and a member of the Transparency Project. He is one of three authors of Transparency in the Family Courts: Publicity and Privacy in Practice

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