Written by Tom Franklin, Chief Executive of the Magistrates’ Association
Open justice is under strain. Reduced media reporting from courts, increased use of behind-closed-doors judicial processes, intensified technology use in courts, continued court closures, and the drive for system-wide efficiencies all play a role.
How can magistrates help protect and preserve this most intrinsic of judicial principles in the face of these? And how should transparency and the exponential growth in social media use be balanced with the need for confidentiality and privacy in the family and youth courts? These were just some of the questions subject matter experts and members tackled at this year’s annual conference.
An ever-changing landscape
Mark Beattie JP, our National Chair, kicked off the conference by observing that open justice is a lofty ambition. Although widely seen as keeping courts honest and acting as a safeguard for justice—ensuring consistency by allowing outcomes to be compared between cases—it has seen many challenges and today comes in many flavours. In adult courts, magistrates are often asked to make an order to protect the identity of a young person appearing as a witness or victim. In youth courts, there are many restrictions on openness. With fewer journalists routinely sitting in magistrates’ courts to hear proceedings, coverage in the local press has also reduced.
Innovation and education
Sir Andrew McFarlane, President of the Family Division, picked up on the nuances of open justice and transparency. He explained that he does not see transparency as a binary issue, with an on-off switch, and that there are ways of being transparent without necessarily having lots of people arriving in court and sitting at the back to watch. He believes that the public needs to have a better understanding of what courts do and a way of getting information about what happens; publishing judgements, mediators explaining what is happening, publishing data on outcomes, and the broader work of the Transparency Project are all examples of how this can be achieved.
Despite discussions having taken place for at least the last decade about how to make family courts more open, they remain completed closed. Sir McFarlane outlined the changes he plans to introduce to allow more scrutiny and explanation of what happens in family court. These have been informed by a recent review of transparency in the family court.
An embattled principle
David Ford JP, one of our Deputy Chairs, asked panellists how they would describe the health of open justice in 2022. Dr Lucy Welsh, an open justice expert from the University of Sussex, said that it is facing several core challenges: the decline of traditional court reporting; the advent of virtual courts; and the introduction of the single justice procedure.
Tristan Kirk, courts correspondent at the London Evening Standard, went further, calling the single justice procedure a “travesty” that had come into effect without safeguards for open justice. He cautioned that it is being used as a blueprint for the ongoing shift towards first appearances and pleas taking place via virtual courts.
Sir Bob Neill MP, chair of the Justice Select Committee, described open justice as “challenged” and asked whether we have sufficiently adapted the broad concept of open justice to a digital age. His conclusion? We are not yet getting it right in every area.
Tracy Sortwell JP, Chair of our family court committee, echoed this sentiment, stating that “we could do better”.
When asked what they would do to improve open justice if they were Justice Secretary for the day, panellists shared a range of engaging suggestions:
- Tracy said she would increase funding for our Magistrates in the Community initiative so that our members can educate more schools and community groups about the magistracy.
- Sir Bob Neill said he would go and speak to the Chancellor of the Exchequer to get more funding for the system. This, he feels, is the only way to be able to provide “proper kit” so that courts can be open, deliver solid and consistent training and guidance for magistrates, and boost the justice system’s standing in the eyes of the general public.
- Lucy said she was also favour of investment—in technology, to improve the workings of the virtual courts, and to make courts more accessible.
- Tristan said he would abolish the online plea and allocation system—which he described as a “fundamentally bad idea”—and would then appoint himself as Education Secretary so that he could introduce “justice” into the national curriculum.
That’s just a flavour of the discussion that took place at our conference. To hear more from our guest speakers and members, and to ensure you’re fully up to speed on this most integral of judicial principles, you can watch our recordings of the day here.