The ICLR supports open justice: indeed, that has always been one of its primary purposes. We therefore welcomed the establishment by the Lady Chief Justice, Baroness Carr of the Transparency and Open Justice Board, chaired by Mr Justice Nicklin, and have supported and participated in its Stakeholder Committee. We publish below our response to the Board’s recent consultation on its key objectives, supplemented by explanatory notes.

Consultation response: Transparency and Open Justice Board, Key Objectives (2025)

  1. The ICLR was established in 1865 by members of the legal profession with the object of the “preparation and publication, in a convenient form, at a moderate price, and under gratuitous professional control, of Reports of Judicial Decisions of the Superior and Appellate Courts in England and Wales.” (Memorandum and Articles of Association, 1870). It is a company limited by guarantee and a registered charity (No 250605).
  2. The ICLR supports open justice and transparency, of which law reporting is an important component. We support the general principles set out in Objective 1 whilst recognising, as set out in the Explanatory Notes, that these objectives represent “only the first stage of reform”.
  3. With regard to Key Objectives 2 and 3, we observe that these are recognised caveats which may provide some working constraints to the delivery of Key Objective No 1. Given this, it might be better to incorporate this within the Objective, e.g.:

(4) recognition that:

(a) whilst open justice is the default position there are limitations to the principle such as where those limitations result from statute or statutory rules, which are set by Parliament not the Judiciary, and where any changes are therefore a matter for Parliament;

(b) sometimes a Court or Tribunal will only be able to do justice in a particular case by departing from the principle of open justice whilst asserting that any such departure from open justice must be necessary, proportionate, and justified;

(c) in some areas, the ability of the Courts and Tribunals to deliver open justice is dependent upon the availability of resources and support from the Ministry of Justice and HMCTS.

  1. Our further response to the consultation is primarily focused on the questions concerning access to case information and the publication of judgments.
  2. The key objectives include, at 1(2) “timely and effective access to the core documents relating to the proceedings held by the Court or Tribunal, including … (c) any written submissions (including skeleton arguments) that are, or having been, considered by the Court or Tribunal at a hearing in public; and (d) any public judgments or Orders of the Court of Tribunal”.
  3. Access to skeleton arguments is critical to the preparation of accurate law reports. At present, rules of court provide by CPR PD52C, para 33 for the provision of additional copies of the skeleton arguments for “accredited law reporters and accredited media reporters”. We would recommend that this provision be extended to all cases heard in open court in all Courts and Tribunals to which the Key Objectives are intended to apply. Since accredited reporters can also attend and report cases being heard in private, e.g. in the Family Division or Family Court, the same should apply there, subject to any automatic or imposed reporting restriction.
  4. Regarding the publication of judgments, we would recommend that Rules of Court in all Courts and Tribunals provide that there should be an express presumption of publication of every judgment whether handed down in writing or given orally and subsequently transcribed and that, similarly, there should be express, embedded, confirmation of any variation from that presumption where the Court or Tribunal concerned wishes to impose a restriction. This restriction should be clear and discoverable and include the applicable permissible category of restriction applied, which should be embedded in a standard machine-readable format. Every judgment published by any Court or Tribunal should be sent to The National Archives together with any relevant reporting restrictions which should then be applied by The National Archives.
  5. Establishing this as a formal element of the open justice process would address some significant issues with reporting and the retrospective application of reporting restrictions, recognising that once a judgment has been made available for circulation under an open licence there are practical limits on the extent to which versions, once distributed, can be re-treated. At present it is an almost weekly occurrence for the ICLR to receive an email from The National Archives requesting that we ‘take down’ a judgment which has already been published, or to update a judgment because of reporting restrictions, insufficient anonymity of certain parties, or for some other reason. The absence of information about reporting restrictions within the judgment itself presents a material risk as well as involving unnecessary rework. If judgments may include a warning of the risk of contempt of court if reporting restrictions are breached there is an associated obligation, particularly given more frictionless and immediate digital publication processes, to ensure that any restrictions are properly communicated at the point of origin. It is not always easy to obtain the information direct from the court and court staff do not necessarily have the resources to respond to such requests in a timely fashion.
  6. Alternatively, there could be a publicly accessible register of reporting restrictions, enabling anyone with access to a judgment to know what, if anything, they cannot say about it; and anyone without access to a judgment known to have been given, to know why it is not available. A reporting restriction alerting service designed purely for the media, depending on a subscription to a Press Association database, will not help non-press reporters, commentators or court observers.
  7. There is a further particular problem regarding criminal appeals in that, if an appeal is allowed by the Court of Appeal, Criminal Division, a retrial ordered, and reporting restrictions imposed until the conclusion of the retrial, there is currently no consistent or single information point which can be accessed to find out when that retrial has come to an end  thus bringing the reporting restrictions to an end. At present this results in us holding some judgments pending completion of a retrial but with no reliable or easy way to monitor or determine that date of completion. A registry or system of some form to notify reporters when these particular restrictions come to an end would be a positive step towards transparency and open justice.

Note

The ICLR Law Reports are required to be cited in preference over reports from any other series:  Practice Direction (Citation of Authorities) [2012] 1 WLR 780, in recognition of the established accuracy and reliability of the Law Reports, and notwithstanding the availability of unreported judgments on the internet.

The ICLR applies a standard set of reportability criteria to judgments in order to determine whether to publish a law report. The ICLR also publishes the full text judgment of those judgments which do not qualify as reportable. As a formal part of our editorial process, reporters will check to ensure they are using the latest authorised version of a published judgment, as provided either directly by the court, or by publication on the National Archives’ Find Case Law database, under their Open Justice licence. Reporters also check to ensure that any case they propose to report is not subject to any reporting restriction, anonymity order or publication embargo, and if it is subject to restrictions, that any report published complies with them.

Paul Magrath, Head of Product Development and Online Content

On behalf of ICLR

24 February 2025

Featured image: open doorway concept, Shutterstock.