Open Justice

Judicial board to promote transparency

Giving the keynote speech at the Society of Editors 25th anniversary conference on 30 April 2024 the Lady Chief Justice, Baroness Carr of Walton-On-The-Hill, announced the establishment of a new Transparency and Open Justice Board, to be chaired by Mr Justice Nicklin. Although the Board is largely populated by judicial figures, the Terms of Reference speak of “wide engagement with interested parties” and mandate the establishment of a Stakeholder Committee to assist the Board in doing so.

This has been widely welcomed by organisations promoting open justice, such as the Transparency Project, Spotlight on Corruption, Transform Justice, the Open Justice Court of Protection Project, and the Courts and Tribunals Observers’ Network. In particular, they say it demonstrates that two key messages have finally landed: (1) the practical reality often doesn’t reflect the “lofty” statements about open justice; and (2) that courts observation involves people other than just the media.

More detail of the Board’s aims emerged last week when its designated chair, Mr Justice Nicklin, delivered the Newcastle-upon-Tyne Law Society Annual Lecture 2024 at Newcastle Law School on 9 May 2024: Transparency & Open Justice — Opportunities and challenges. He made the point that they

“want to move away from regarding transparency and open justice as a ‘bolt on’; something to be regarded as additional to the administration of justice. We need a recalibration: to make openness and transparency an essential feature of delivering justice.”

“Open justice — because it is the right of all citizens — goes wider still than those who want to report on the courts. It embraces all of those who are interested in the work of Courts and Tribunals, including academics and researchers.”

Nicklin J also quoted extensively from the responses, including that of ICLR, to the investigation by the Justice Committee of the House of Commons set out in its report Open Justice: court reporting in the digital age. He said:

“Overall, the Justice Committee Report paints a not altogether happy picture of the current delivery of open justice, and I recognise that. In some areas, and on some days, there have been failures to make open justice a reality. For the most part, we get it right, but as the Lady Chief Justice said last week: ‘The greatest threat comes not from direct attack on the principle [of open justice], but rather from careless — sometimes inadvertent — failures to protect its ideals.’”

Transparency gaps

Examples of where open justice can be obstructed or frustrated by such “careless — sometimes inadvertent — failures” (sometimes also due to lack of staff training or judicial will), may be found in attempts by court observers to get timely remote access to hybrid or in-person hearings and access to court orders and case documents. See, for exmample, ,the recent post on the Open Justice Court of Protection Project blog: Open justice fails again: This hearing wasn’t publicly listed — then the judge denied us remote access, and never sent the approved order.

Another example emerged from a recent BBC report, Premier League club boss wins anonymity in child sex abuse civil case:

“Earlier this year, the BBC asked the court for documents related to this case but the court did not respond to the journalist making the request or provide them with notice of the anonymity application, therefore the BBC were unable to make representations objecting to the order before the judge’s decision.”

New rules — but not yet

The expectation of better access to documents has also had something of a setback this week, as it was reported by the Law Society Gazette that the Civil Procedure Rule Committee has decided it will need more time to consider the many responses to its recent consultation on widening public access to court documents.

Under the new CPR 5.4C proposed by the Civil Procedure Rule Committee, parties would have to make documents such as skeleton arguments and witness statements — with confidential details redacted — available on request.

A number of respondents had objected on grounds including cost and confidentiality concerns. Summarising the tone of the responses, District Judge Paul Clarke said “Everyone supports the principle of open justice, but follows it with the word ‘but’.”

Shifting those “buts” is going to be hard, it seems.

Closed justice

Special advocacy in crisis

The controversial system for secret evidence and closed proceedings, designed to protect national security from the scrutiny of litigation, is in “meltdown”, reports Angus McCullough KC on the UK Human Rights Blog.

The system, set up under Part II of the Justice and Security Act 2013, allows for security-cleared lawyers to represent the interests of individuals excluded from all or part of their own trial by reason of the closed procedure used to air secret evidence before the court (but not before the excluded parties). Special advocates are supposed to ensure that justice is done, but are not there to advise or communicate with the excluded parties.

In view of the government’s continuing failure to provide proper support for this system, and its long delay in responding to a statutory review by Sir Duncan Ouseley, last month a group of 25 practising Special Advocates, including 16 King’s Counsel, effectively downed tools and

“informed the Attorney General (who is also the Advocate General in Northern Ireland) that they had each formed the view that they could not, in good professional conscience, accept any new appointments as Special Advocates whilst current defects in the system remain unaddressed”.

McCullough says it is “deeply concerning that there has been a failure by Government to have achieved any effective action after so long” and that “we cannot be expected to be complicit in operating a system that has serious flaws that have been clearly identified and remain unaddressed”.

See also: Joshua Rozenberg, A Lawyer Writes: Secret courts in crisis

Courts

Invasive searches

While obstructive court security may be yet another barrier to public participation in open justice, it can also be a barrier to the administration of justice. Complaints over the excessive and intrusive personal searches of legal professionals at some courts have increased in recent years.

In April the London Criminal Courts Solicitors’ Association (LCCSA) wrote a letter complaining about the “enhanced” searching of Professional Users Access scheme (PUAS) members entering Stratford Magistrates’ Court. Now Garden Court Chambers, having noted a subsequent allegation of sexual assault in one such case, has issued a statement saying they will not send pupils to the court:

“Subjecting professional court users to intrusive searches of themselves or their personal items is unlikely to be justifiable, and this often disproportionately affects women lawyers. … As a Chambers we have a duty to ensure our pupils’ safety and wellbeing. In light of these reports, we consider that we would risk breaching those obligations should we require them to attend Stratford Magistrates’ Court without the issues identified above having been fully investigated and resolved. As such, we shall not be sending our pupils to this court until that happens.”

Human rights

Freedom of expression

On World Press Freedom Day (3 May 2024) the organisation ARTICLE 19 expressed its deep concern about the rising numbers of press freedom violations across the Middle East and North Africa (MENA) region. It urged governments of the region to uphold their international obligations, ensuring freedom of expression and the press as fundamental rights that States must protect — in all circumstances.

ARTICLE 19 is named after article 19 of the Universal Declaration of Human Rights and campaigns to to document censorship, to defeat the censors, and to help the censored. Citing conflict and oppression in Palestine, Jordan, Egypt, Tunisia and Algeria, it reports that

“Journalists across the MENA region face a climate of increasing media censorship through restrictive legislation and tightening restrictions on media institutions, especially independent ones. Attacks against journalists are prevalent, and they face a growing range of aggression, from restrictions and obstructions to their work to prosecution, imprisonment, intimidation, and even physical harm and murder.”

Discrimination

Club ties

Following legal advice by two senior barristers, Lord Pannick KC and Emily Neill, the ancient Garrick Club, which counts many judges among its members, has finally voted to allow women to join. (Whether they will be required to wear the club’s pink and green striped “salmon and cucumber” tie is another matter. A spider brooch, perhaps?)

Judicial membership of the club has featured in recent case law, as the Transparency Project roundup recently noted. The Guardian reported on a High court judge removed from case in part due to his Garrick membership, which was about a ruling by Mr Justice Keehan that Sir Jonathan Cohen should not hear a particular a case involving an alleged rape and domestic abuse victim, partly on the grounds that ‘Cohen is a member of the Garrick Club … the father was a regular visitor to the Garrick Club … the father’s ex-employer is a member of the Garrick Club’, and because the appellant mother had attended a public protest outside the club in March because of its male-only membership policy. That protest had accompanied the delivery of an open letter, signed by an MP and dozens of lawyers, calling on the club to stop discrimating and to admit women as members. (An earlier letter from many of the same signatories had called on all members who were judges — many of whose names had earlier been revealed in an investigation by the Guardian — to resign from the club.) One of the signatories of both letters was the barrister Dr Charlotte Proudman, who had made the application for Sir Jonathan Cohen to be recused from the case, in which she represented the mother.

The Independent had earlier reported that Dr Proudman was facing disciplinary proceedings for her criticisms of a judgment handed down by Sir Jonathan Cohen in an unrelated case, and that more than 60 lawyers, campaigners, politicians and academics has signed another open letter, supporting Dr Proudman and calling on the Bar Standards Board to withdraw its prosecution against her. (She has already managed to get the judge who was to have heard the disciplinary proceedings, Philip Havers KC, to recuse himself on grounds of his own membership of The Garrick.) The disciplinary proceedings were reported to have been launched after Dr Proudman had tweeted, of the judgment in question: “I do not accept the judge’s reasoning. This judgment has echoes of the ‘boys’ club’ which still exists among men in powerful positions.” The open letter questions whether her comment could seriously undermine the integrity of the justice system, arguing instead: ‘we believe it takes immense integrity to publicly defend a vulnerable individual from a judge who holds significant power’.

See also: Counsel magazine (May 2024), Garrick Gate – a critical tipping point, which cites a joint statement from the six Circuit Leaders, asking “Finally, do our male judges, male barristers and male politicians involved in the justice system really believe that ‘justice can be seen to be done’ when they remain members of the men-only Garrick Club?”

Recent case summaries from ICLR

A selection of recently published WLR Daily case summaries from ICLR.4:

CRIME — Sexual offences — Indecent assault: R v EP, 03 May 2024 [2024] EWCA Crim 463; [2024] WLR(D) 196, CA

CRIME — Trial before Crown Court — Non-attendance by counsel for the Crown: R v Ng (Katie), 09 May 2024 [2024] EWCA Crim 493; [2024] WLR(D) 206, CA

DISCRIMINATION — Disability — Employment: Baldwin v Cleves School and others, 03 May 2024 [2024] EAT 66; [2024] WLR(D) 199, EAT

ENVIRONMENT — Protection — Climate change: R (Friends of the Earth) v Secretary of State for Energy Security and Net Zero, 03 May 2024 [2024] EWHC 995 (Admin); [2024] WLR(D) 201, KBD

ENVIRONMENT — Protection — Statutory nuisance: R (Ball) v Hinckley & Bosworth Borough Council, 29 Apr 2024 [2024] EWCA Civ 433; [2024] WLR(D) 191, CA

IMMIGRATION — Asylum — Child: R (DM) v Secretary of State for the Home Department, 26 Apr 2024 [2024] EWHC 967 (Admin); [2024] WLR(D) 197, KBD

INSURANCE — Contract — Construction: Bellini (N/E) Ltd (trading as Bellini) v Brit UW Ltd, 30 Apr 2024 [2024] EWCA Civ 435; [2024] WLR(D) 208, CA

NUISANCE — Private — Japanese knotweed: Davies v Bridgend County Borough Council, 08 May 2024 [2024] UKSC 15; [2024] WLR(D) 202, SC(E)

PLANNING — Enforcement notice — Appeal: Caldwell v Secretary of State for Levelling Up, Housing and Communities, 02 May 2024 [2024] EWCA Civ 467; [2024] WLR(D) 205, CA

PRACTICE — Disclosure — Business and Property Courts: Invest Bank PSC v El-Husseini, 30 Apr 2024 [2024] EWHC 996 (Comm); [2024] WLR(D) 200, KBD

SOCIAL SECURITY — Benefits — Universal credit: Simkova v Secretary of State for Work and Pensions (Secretary of State for Work and Pensions v MS), 26 Apr 2024 [2024] EWCA Civ 419; [2024] WLR(D) 189, CA

Recent case comments on ICLR

Expert commentary from firms, chambers and legal bloggers recently indexed on ICLR.4 includes:

Landmark Chambers: Court of Appeal rules damages may be awarded for imminent inhuman treatment caused by unlawful — No Recourse to Public Funds Policy: Home Office v ASY [2024] EWCA Civ 373, CA

7 Bedford Row: Supreme Court hands down definitive guidance on calculating damages in ‘mixed’ claims: Rabot v Hassam [2024] UKSC 11; [2024] 2 WLR 949, SC(E)

Tanfield Chambers: A new case on remediation orders: Di Bari v Avon Ground Rents, Judgment PDF, FTT

Mountford Chambers: “Sentencing decisions cannot be prescribed by accidents of time”: R v Ismaila Kamarra-Jarra [2024] EWCA Crim 198, CA

Wilberforce Chambers: A Tale of Two Forums —the decision in Grosskopf v Grosskopf & Ors [2024] EWHC 291 (Ch), Ch D

Landmark Chambers: Update on the Article 2 investigative duty in inquests: R (Parkin) v Inner London Assistant Coroner [2024] EWHC 744 (Admin), KBD

Local Government Lawyer: Redefining the boundaries of reasonable excuse in housing enforcement? Naila Tabassam v Manchester City Council [2024] UKUT 93 (LC), UT

Local Government Lawyer: The statutory nuisance regime: R (Ball) v Hinckley & Bosworth Borough Council [2024] EWCA Civ 433; [2024] WLR(D) 191, CA

And finally…

We remember

the late Catherine McArdle, Deputy Librarian of Lincoln’s Inn, whose memorial service took place earlier this month.

It was a lovely service, and the wonderful tribute by Guy Holborn, the former Head Librarian who had recruited Catherine, encompassed her many talents and interests, including folk music and dancing. (Apparently, the librarians used to gather every Monday morning, not to discuss new acquisitions as you might imagine, but to talk about the previous night’s Strictly results. You just never know, do you.) The current Head Librarian Dunstan Speight, among others, gave a lovely reading. The chapel in Lincoln’s Inn was packed, and so was the Great Hall where everyone went for a drink afterwards. No one who had any dealings with Catherine can have been in any doubt of the love and respect in which she will long be remembered.

That’s it for now. Thanks for reading, and thanks for all your toots, tweets, posts and links. Work hard, be kind, take care.

This post was written by Paul Magrath, Head of Product Development and Online Content. It does not necessarily represent the opinions of ICLR as an organisation.

Featured image: Photo by Mark Arron Smith: via Pexels

Weekly Notes: legal news from ICLR, 13 May 2024