Recommendation 3

HM Government Rejected

27. The principle of open justice is very well established as a common law principle, and to the extent that any underpinning in statute is required, we feel that to be amply provided by Article 6 of the European Convention on Human Rights, as embodied in the Human Rights Act 1998.23 Further reinforcement and adjustment is provided in case law 19 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1057171/ HMCTS314_Protocol_on_ sharing_court_lists-registers_and_docs_with_media_Jan_22.pdf 20 https://www.gov.uk/guidance/access-hmcts-data-for-research 21 Data First and BOLD are cross-departmental initiatives to bring together data from different sources, make links, and prepare datasets which provide research insights and evidence for policy of much greater utility than data held in isolation. The Panel has made positive decisions in support of these initiatives and will continue to do so. 22 https://www.gov.uk/guidance/access-hmcts-data-for-research 23 https://www.legislation.gov.uk/ukpga/1998/42/contents and rules of court, which allows for flexibility where necessary. This approach helps to strike the balance between the principle of open justice and the privacy and wellbeing of court users. In certain instances, however, this balance is brought into question and it is valuable that common law allows for the interpretation of open justice to adapt. This gives the judiciary useful flexibility in its application case-by-case. Therefore, we see no clear need to legislate in this area. 28. It should be noted that open justice is already guided by statute. This includes the ban on photography introduced in the Criminal Justice Act 192524 and the prohibitions on sound recording introduced in the Contempt of Court Act 1981.25 This can and is disapplied in certain circumstances, e.g. the Supreme Court,26 Court of Appeal (Civil Division),27 Crown Court broadcasting,28 and broadcasting in the Competition Appeal Tribunal.29 Numerous pieces of other primary and secondary legislation, including procedure rules, also exist that help strike the balance between the principle of open justice and the privacy and wellbeing of court users. 29. As outlined, from time to time this balance is brought into question. The most pertinent recent example is that of Cape v Dring (2019) in the Supreme Court.30 The Court noted that the Rules do not explain what documents should be kept by courts, nor was there any statutory definition of the term ‘records of the court’, and nor was there any satisfactory guidance from any other source.31 30. The Government notes, in particular, paragraph 51 of the judgment where Lady Hale said: “We would urge the bodies responsible for framing the court rules in each part of the United Kingdom to give consideration to the questions of principle and practice raised by this case. About the importance and universality of the principles of open justice there can be no argument. But we are conscious that these issues were raised in unusual circumstances, after the end of the trial, but where clean copies of the documents were still available. We have heard no argument on the extent of any continuing obligation of the parties to co-operate with the court in furthering the open justice principle once the proceedings are over. This and the other practical questions touched on above are more suitable for resolution through a consultative process in which all interests are represented than through the prism of an individual case.”32 31. The Cape v Dring case raises interesting considerations. Court records contain documents retained by the court for its own purposes. Those purposes are not the same as the purpose for which non-parties may properly be given access to court documents, which is to promote the principle of open justice. In modern litigation, where much that was previously read out in court is now submitted in writing, it may be necessary to have access to some documents, such as written submissions and witness statements, to make sense of the proceedings. The Civil Procedure Rules Committee33 (CPRC) established 24 https://www.legislation.gov.uk/ukpga/Geo5/15–16/86/section/41 25 https://www.legislation.gov.uk/ukpga/1981/49/section/9 26 https://www.legislation.gov.uk/ukpga/2013/22/section/31 27 https://www.legislation.gov.uk/uksi/2013/2786/contents/made and https://www.legislation.gov.uk/ uksi/2020/631/contents/made 28 https://www.legislation.gov.uk/uksi/2020/637/contents/made 29 https://www.legislation.gov.uk/uksi/2022/156/contents/made 30 https://www.supremecourt.uk/cases/uksc-2018–0184.html 31 Aside from Practice Direction 5A, paragraph 4.2A 32 https://caselaw.nationalarchives.gov.uk/uksc/2019/38 33 https://www.gov.uk/government/organisations/civil-procedure-rules-committee a sub-committee to consider this, but progress has been affected by the pandemic and broader issues which are likely to go beyond the confines of rules of court, as well as the cross-juri