07:24, October 10 59 0 theguardian.com

2017-10-10 07:24:03
Closed justice: how British courts are still keeping the public in the dark

Reporting public court cases can sometimes feel like you have come into a conversation halfway through and are then left struggling to understand what is being talked about. It is an open court, but it feels like it is being conducted as private business between the lawyers and the judge.

Barristers often start their speeches by saying that they have submitted their arguments in a document to the judge so there is no need to repeat some of them to the court. The documents, however, are often not passed to the press or members of the public sitting in the courtroom, leaving them in the dark. At other times, barristers point to a passage in a document, and then the judge and the lawyers sit there in silence reading it before the proceedings resume. Again, those documents have invariably not been shared with the press or public who have no idea what was being examined.

In theory we have open justice in this country. In practice it often does not seem like that. The Guardian today reports on how one multinational company, Ineos, backed down and disclosed a legal document that it used to justify a controversial sweeping injunction against anti-fracking protesters. The Guardian had requested the document under open justice guidelines. The petrochemical giant refused to disclose it, arguing that while it had been referred to in the open hearing, that did not mean that it was a public document. It said that the document did not address all the issues in the case which had been adjourned.

The company later argued that the legal arguments set out in the document had been superseded. The multinational handed over the document last week.

Judges and lawyers like to proclaim that we have had open justice in this country since the the Stuart dynasty. It is a constitutional principle at the heart of our system of justice and vital to the rule of law, they say. But there is a problem. Historically, witnesses in a trial gave their evidence orally. In recent times there has been a change, and witnesses submit their evidence in written statements. Barristers prepare documents setting out their arguments, and these are handed to the judge. All this was designed to speed up hearings and save taxpayers money. But it also means that frequently these documents are not read out in full in open court, particularly in civil cases.

In civil hearings, reporters often ask barristers for a document known as a skeleton argument. It is a key document which contains the essence of their arguments in a case. But often, lawyers refuse to give copies of these skeleton arguments to reporters who request them. The lawyers resort to curious reasons to avoid handing them over, maybe, because they perceive that it is not in their tactical interest or, maybe, out of fear that their clients may be displeased.

Judges recognise that reporters, acting as the eyes and ears of the public, have an important role in informing people about court cases and explaining what had happened in such cases. A landmark ruling was given by three senior judges in 2012 when the Guardian sought documents from a hearing involving two businessmen implicated in a huge bribery scandal. They ruled in favour of the Guardian and strengthened the media’s right to see documents used in criminal cases.

Lord Justice Toulson wrote: “In a case where documents have been placed before a judge and referred to in the course of proceedings, in my judgment the default position should be that access should be permitted on the open justice principle; and where access is sought for a proper journalistic purpose, the case for allowing it will be particularly strong.”

He added that the courts should assist, and not impede, reporters who request documents that would help them to report court cases accurately unless there were strong arguments to the contrary. In other words, obtaining documents from a public hearing should not be an obstacle course for reporters. Too often, however, it still is.

Those running the legal system have known for some time there is a problem, and it’s time they acted to bring about proper open justice. Reporters, and the public, should not left depending on the whim of lawyers when they ask to see documents that should be public.

  • Rob Evans is a Guardian reporter