Open justice is not only about opening the courtroom doors. It's about public understanding and access to proper legal rightsby David Allen Green / July 15, 2019 / Leave a comment
Open justice has two meanings. The first is the justice to which we have access: of everyone being able to go to the courts to enforce or defend their rights. Open justice in this meaning has long been under attack. Legal aid has been removed or restricted, even in areas such as social security and family matters; court fees have increased, including employment tribunals; and courts have closed. Parliament can pass more and more laws, but citizens are less and less able to rely on legal rights when it matters.
“The fiction is that justice is open unless there is a reason for lack of transparency”
The second meaning of open justice is about justice being seen to be done. Here, public access to information about what is going on in courts is in as much of a bad state as access in the first sense. This is not just because of reporting restrictions in sensitive cases where there is often a public interest in access being limited. It is because of a combination of a culture of secrecy, illiberal rules and casual obstructions. It is quite difficult to find out what is happening even in cases of fundamental public importance. This has real-world implications for the rule of law in the UK.
The fiction is that justice is open unless there is a reason for a lack of transparency. This is true in the trivial sense that a person can, in theory, walk into a court building (if they find one open and in session) and sit in on a hearing which is taking place. But that curious visitor will have difficulty knowing which courtroom and the nature of the case in advance, and so it is usually only those who already know about a case or random tourists who ever do turn up. And many minor hearings take place in judges’ chambers where there is no real chance of sitting in (and nowhere to sit if you do).
In the United States, there is legitimate concern over the rule of law and the operation of democratic institutions (see Dahlia Lithwick in this month’s Prospect). Yet the “docket” of case documents, containing pleadings and evidence, is often published on the…