Giving his first annual press conference since his appointment earlier this year, the Lord Chief Justice said his two main concerns would be to increase awareness of what judges do, and to secure reforms needed to modernise the justice system. After his speech, he answered questions from the press, some of which raised interesting issues about media coverage, transparency and accountability.

Appreciating what judges do

Lord Burnett told reporters attending his press conference at the Royal Courts of Justice on 5 December that most people got their knowledge of judges from media reports of newsworthy cases or else from TV and film dramas which were fictional. But when it came to news reports, pressure of time made it hard for the media to cover more than a few cases. He therefore doubted whether most people appreciated the nature of the work done judges on a day to day basis.

“Nobody should underestimate how difficult and harrowing it can be to deal regularly with family cases concerning child protection, or criminal cases involving serious violence or sexual abuse.

Our judges work incredibly hard making important, often life-changing decisions; day in, day out, in difficult circumstances.

What goes on in court is only part of what a judge has to do. There are long hours out of court away from the public gaze. I want people to know that. Their daily diet gives them a uniquely broad insight into what is going on in society, especially when things are going wrong.”

Greater understanding would lead to greater respect, he said. Judges were not immune from fair criticism, but they should not have to face a torrent of online verbal abuse or even physical threats over decisions they had made. Such abuse, intended to intimidate judges, would undermine the rule of law, which depended on judicial independence and impartiality.

Although Lord Burnett did not mention it specifically, no one listening could have been unaware of the fact that it had been from the press that one of the worst recent examples of abuse had come, namely the Daily Mail calling three judges in the High Court (one of whom was Lord Burnett’s predecessor, Lord Thomas) “enemies of the people” in a headline on its front page. That sent shockwaves through the judiciary, from which it is still recovering. It’s one of the reasons why there is currently a desperate shortage of judges, with candidates reluctant to put themselves forward fearing they will not get the respect and support they need to do their job properly. It wasn’t just the headline; it was also the fact that neither the government, in the form of the then Lord Chancellor, Liz Truss, nor the so-called regulator of the press, IPSO, made any serious effort to reign in the wholly misconceived and unjustified abuse aimed at the judges simply for doing their job and applying the law laid down by Parliament. No wonder, then, that Lord Burnett has made increasing public understanding of the work of the judiciary one of his top priorities.

When asked what single thing he would be proudest to have achieved as Lord Chief Justice, he said

“I would like to be seen to have helped improve the morale of the judiciary”.

Court reform and transparency

Lord Burnett also discussed the massive £1bn 6-year project to modernise the courts, currently being undertaken by Her Majesty’s Courts and Tribunals Service (HMCTS). Known as HMCTS Reform, the project involves a number of strands, including

  • Selling off old court buildings which are under used or would cost too much to repair
  • Building and upgrading other court buildings, adapting them for multiple types of use, often within a bigger civic court centres
  • Making more and better use of virtual or remote (telephone or video conference) hearings to save time and travel overheads
  • Moving from paper-based to digital case management systems
  • Developing an online court to deal with simpler cases that don’t need physical hearings
  • Introducing more flexible ways of working, including extended court sittings where appropriate

[You can read more about this project here: A justice system fit for the future and Modernising the courts: the struggle continues.]

Lord Burnett said the project had three broad aims:

First, to make the administration of justice more efficient. Secondly, to improve access to justice; and thirdly to improve the conditions for the public and for court staff, professionals and judges.

He was asked a number of questions about this. First, given that all this money had been made available to modernise the courts, why couldn’t some resources be made available for legal aid, particularly as the cuts now meant a lot of people even in criminal cases were trying to defend themselves.

His answer was that legal aid was currently under review by the government. Moreover, although litigants in person could be a problem for judges, this was not always the case.

“It is quite interesting that we now have quite a lot of evidence, it is anecdotal rather than properly empirical, that suggests that litigants in person do not necessarily clog up the courts. Some shorten the cases, others lengthen the cases, but as a general proposition it usually assists judges to have professionals in front of them if that is at all possible.”

Second, in relation to cases being dealt with online, Lord Burnett was asked how far was that likely to go in terms of the seriousness of the type of case, and what would it mean for transparency of justice?

He said there were two points. First,

“the online services that we have in mind will enable litigants, and also professionals who are representing litigants, to do routine submission of information and documents online, rather than having to fill out lengthy forms and deliver them in paper.”

Second,

“So far as hearings where all the parties aren’t present are concerned, I personally dislike the term “virtual hearings” because that rather gives the impression that people will be sitting at computers in rather the same way that those who enjoy gaming online can go and sit in London playing a game with someone in Alabama. That is simply not what is going to happen. Rather than virtual hearings, these are going to be hearings enabled by video and telephone.

… the critical thing to bear in mind is that in the event that a hearing is needed but which all the parties need to be present that will be something that the judge decides but many hearings do not require that.

In terms of the complexity of offence or case being dealt with,

“It is not necessarily going to be categories of cases as this project rolls out over the next few years. It will be also categories of hearings. So, routine hearings which deal sometimes with listing matters; sometimes with simple bail applications; sometimes taking a plea; that is the sort of thing that we hope will not require the routine attendance of everybody at court on every occasion.”

He did not really deal with transparency in relation to online hearings, in the sense of them being open to scrutiny by the public and media; but another aspect of such transparency was raised in a question about cameras in court. Earlier in the year a pilot scheme involved filming sentencing remarks by judges in some cases. He said:

“The pilot is being evaluated and it is not without some difficulty. In particular, there are two aspects which need to be looked at carefully. The first is the question of exposing judges to potential risk if these things are broadcast and the second is that the inevitable problem that I am afraid some people behave differently, not judges, but some people behave differently in court if they know that something is being recorded but I am on record as suggesting that the broadcasting of sentencing remarks, at least in cases of high public interest, is something that should be looked at very carefully.”

To put that in context, filming in court is currently prohibited under section 41 of the Criminal Justice Act 1925, but exceptions have been enacted to permit filming of some cases in the Court of Appeal, Criminal Division, and for the pilot scheme on sentencing remarks. (The UK Supreme Court is excluded from the effect of section 41 of the 1925 Act and its own rules permit it to stream hearings and upload them to their own YouTube channel.)

Public legal education

Broadcasting some hearings would not merely increase transparency in the sense of bolstering accountability of the justice system. It would also promote legal education. Lord Burnett spoke in his initial remarks of work being done in schools to enable children to learn about the justice system, with lesson plans being devised and visits to schools from the judiciary.

He didn’t mention other projects, such as the panel to drive legal education being convened by the Solicitor General, Robert Buckland. But another very welcome piece of news has been the recent revival of the 1970s television programme Crown Court, introduced by the celebrity daytime TV (and Strictly) star, “Judge” Rinder. Crown Court used to show reconstructions based on real criminal trials, in such a way as to enable the viewer to see all the same evidence, and come to their own verdict, before learning what the original jury decided. You can watch the first two-part case on catchup via ITV hub.

STOP PRESS

Another opportunity to learn about the justice system in action, if you are in the Bristol area, is mentioned in the latest newsletter from HHJ Wildblood QC on the Family Court Information website:

On 11th January 2018 there is an interactive theatre production at St Brendan’s College theatre, Bristol of a typical family scene leading to care proceedings in which the audience gets to discuss things directly with the actors (who stay in role); you can book to it on ticket source https://www.ticketsource.co.uk/

Featured image: Royal Courts of Justice, London, via Shutterstock.

This post was first published on the Transparency Project blog and is republished here with thanks.