Remote but transparent? Open justice under the lockdown

As a law reporter and legal commentator, one of my main concerns is open justice. The aims, obstacles and methods of achieving that in the context of the generally private hearings of the family courts is the subject of my book, written with Julie Doughty and Lucy Reed, Transparency in the Family Courts: Publicity and Privacy in Practice (2018). The issue that faces us now is how to maintain open justice and transparency when all our court hearings must, for reasons of urgent necessity, be conducted remotely.

The speed of change has been alarming. On 3 March 2020 the government´s coronavirus Action Plan declared vaguely that “The Ministry of Justice’s HM Courts & Tribunal Service have well established plans to deliver key services to protect the public and maintain confidence in the justice system.” By 23 March the Coronavirus Act 2020 was on the statute book, enabling rules and directions to be made permitting public and media access to remote hearings broadcast via the internet. A flurry of practice directions and guidance duly followed.

Proceedings conducted by Zoom, Skype, Teams and other platforms have not only been conducted with legal representatives, parties, witnesses all participating remotely, but these proceedings have been “attended” by members of the public, in a sort of virtual public gallery, and reported by the news and specialist media – including law reporters hungry for precedents. Cases are now routinely listed with an email address for those wishing to access the hearing to find out how to join. For family cases, heard in private to protect the interests of children and other vulnerable parties, the process is the same except that, under the Family Procedure Rules, only accredited media representatives or, under the current pilot introduced by PD36J, legal bloggers can gain access.

Not all of it has been plain sailing. There are still concerns over public access to proceedings in magistrates’ courts. In one of the first hearings in the Queen’s Bench Division the judge was invisible because of a technical hitch with his camera, though everyone could hear him well enough: ironically the case itself involved issues of open justice. The way advocates appear against a background of their own living rooms or studies can be disconcerting. And some clients or lay supporters have felt alarmed at the lack of formality of some hearings, where they have unwillingly been privy to barristerial banter or unsolicitous chitchat.

But for law reporters, covering cases in the comfort of home has been a bit of a blessing, since the remote link enables a full note of argument to be made without the effort of commuting to the Royal Courts of Justice or the Supreme Court. Imperfect as the situation may be, it is also a useful opportunity to test our willingness to adapt ourselves to the inevitable use of such technology in the courts of the future.

Paul is the author of Transparency in the Family Courts: Publicity and Privacy in Practice

Written by Paul Magrath

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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