Select committee: Justice Committee
Fifth Report - Open justice: court reporting in the digital age
HC 339
Published 1 November 2022
Justice Committee Open justice: court reporting in the digital age Report on parliament.uk ↗
At a glance13 recommendations and 32 conclusions · Government response published 16 January 2023 (deadline 1 January 2023)
The government's response
Summary written by Accountability Index from the government's response. It is not the government's own words.
The Government states that it "remains committed to upholding the principle of open justice" and responds to the Committee's recommendations by citing existing and planned work, a 2023 call for evidence, and some stated reasons for not taking forward certain recommendations.
- On legislating for open justice, the Government says it sees "no clear need to legislate in this area", citing common law, Article 6 ECHR and the flexibility this gives the judiciary.
- On re-establishing a courts' inspectorate, it says "the case for re-establishing a courts' inspectorate is therefore not clear", citing existing audit, management information and parliamentary scrutiny.
- It commits that "in 2023" it will develop and publish a charter for members of the public summarising existing rules on access to hearings and information. It says the charter would not create new rights.
- On a PACER-style document portal, it states "we do not, at this stage, have plans" to create one, citing resources, and says it plans to explore access to court documents in a call for evidence launching in 2023.
What the committee recommended 45
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Sources
- Fifth Report - Open justice: court reporting in the digital age ↗The committee's report, HC 339, parliament.uk
- Seventh Special Report - Open justice: court reporting in the digital age: Government Response to the Committee’s Fifth Report of Session 2022–23 ↗The government's response, 16 January 2023, parliament.uk
Recommendations and conclusions 45
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1
MPs need to visit family courts to understand daily justice system issues. Conclusion (the committee's words)We would encourage every family court in England and Wales to invite their local MPs to visit so that they can hear accounts of the issues facing the family justice system from those who are responsible for delivering justice on a daily basis.
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2
Need for a White Paper clarifying public rights to court access in the digital age Conclusion (the committee's words)The Lord Chancellor and the Lord Chief Justice should consider producing a White Paper that clarifies and publicises the right of the public to attend court hearings and access information on court proceedings in the digital age.
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3
Government and Parliament must legislate on the proper limits of open justice Conclusion (the committee's words)Open justice is a common law principle, and it is for the courts to determine its requirements in particular cases. However, responsibility for deciding how the principle should operate should not be left to the courts alone. Deciding the proper limits of open justice can often give rise to significant policy questions that Government and Parliament can only tackle through legislation.
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4
Digital age requires collaboration for balanced open justice without damaging quality Conclusion (the committee's words)The internet and social media are changing the way that the public access court proceedings, which is making the work of the courts more accessible; but this also presents dangers for the administration of justice. In the digital age, it is vital the Government, Parliament and the Judiciary work together to ensure that a balanced approach to open justice is achieved so that public scrutiny of justice can be secured without damaging the quality of the justice administered in the courts.
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5
Concerning decline in news media coverage of courts, especially Magistrates’ courts Conclusion (the committee's words)The well-documented decline in the news media’s coverage of the courts, particularly the Magistrates’ courts, is concerning. In acting as the eyes and ears of the public, the media perform a vital role in keeping the public informed on the operation of the justice system.
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6
Decline in court reporting negatively affects open justice in England and Wales Conclusion (the committee's words)The decline in court reporting has had a negative effect on open justice in England and Wales.
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7
HMCTS must enhance direct communication and provide media information to facilitate court reporting Recommendation (the committee's words)As the public receives less information through the media on the work of the courts, HMCTS should do more to enable the courts to communicate information on court proceedings directly to the public. In addition, HMCTS needs to use technology and organisational reform, building on the work done with Courtsdesk News, to provide the media with the information it needs in a consistent manner, as soon as possible, to facilitate court reporting. HMCTS should also pilot the use of regional communication and information officers to support media and public access to hearings. Furthermore, the decrease in the media’s coverage of the courts also strengthens the case for the re- establishment of a courts’ inspectorate, which could help to identify wider issues within the justice system, particularly in the Magistrates’ courts and the Family Court, which are not well covered by the media.
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8
Practical barriers create a chilling effect on open justice for journalists and the public Conclusion (the committee's words)The evidence from the Bureau of Investigative Journalism on its experience of attempting to access possession hearings presents a concerning picture of the practical reality of open justice in England and Wales. The legal and constitutional status of open justice is immaterial if journalists face the sort of hurdles experienced by the Bureau of Investigative Journalism. Those barriers have the potential to create a chilling effect for journalists and the public by discouraging them from exercising their right to attend hearings. Everyone working within the justice system, especially judges and court staff, has a role to play in translating the principle of open justice into reality.
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9
Public must be aware of their rights to attend court proceedings and access information Conclusion (the committee's words)We welcome the publication of the Reporters’ Charter, which for the first time sets out the rights and obligations of journalists reporting on court proceedings. We note, however, that the rights of access that flow from the principle of open justice are not exclusively for reporters’—it is vital that members of the public are also aware of their right to attend proceedings and access information.
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10
Publish a citizens’ charter outlining public rights to access court information Recommendation (the committee's words)HMCTS should publish a citizens’ charter that outlines the public’s rights to access information on the courts.
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11
Need for a single point of contact for all media and public court inquiries Conclusion (the committee's words)The Reporters’ Charter helpfully directs the media to the MOJ press office and the Judicial Press Office to deal with enquiries and issues on accessing court proceedings and information. There should be a single point of contact for all accessibility and open justice inquiries from the media and from the public. The Lord Chief Justice told us that, if a journalist encounters an issue accessing a court, he or she should “get in touch with their local court and ask why”. In reality, at present there is no formal official mechanism for the media or the public to raise accessibility enquiries or complaints in relation to the courts. The creation of regional communication and information officers within HMCTS could provide that point of contact for reporters and the public. The courts’ inspectorate, as we proposed in our report on court capacity, could have a specific remit to examine the operation of open justice.
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12
Public understanding of court proceedings and attendance rights requires enhancement. Conclusion (the committee's words)HMCTS should institute a programme of open days to encourage the public to visit their local courts, for example during Justice Week. This programme should be used to improve the awareness of both the public and HMCTS staff of the public’s right to attend court proceedings. Furthermore, there should be a programme to encourage schools to organise visits to their local courts to improve public legal education.
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13
Listing email addresses for remote hearing access is crucial for all court websites. Conclusion (the committee's words)Every court should list an email address on its website to enable the media and the public to request access to remote hearings.
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14
Lack of coherence and consistency in remote hearing access for public and media. Conclusion (the committee's words)Remote hearings are still a relatively new and innovative feature of the justice system in England and Wales. The evidence to our inquiry suggests that there is a problem with a lack of coherence and consistency in relation to the ability of the media and the public to access remote court hearings.
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15
Gather and publish detailed data on remote court proceeding observation requests by jurisdiction. Recommendation (the committee's words)We recommend that HMCTS gathers and publishes data on requests to observe proceedings remotely. In particular, it would be useful to know the number of requests received and the number of requests granted by jurisdiction.
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16
Crown Court case outcome information for journalists lags behind Magistrates' Court provision. Conclusion (the committee's words)HMCTS should ensure that the Crown Court provides the same level of information to journalists on the outcome of cases as is currently provided by the Magistrates’ court.
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17
Digitisation and consolidation of court and tribunal lists into single service welcomed. Conclusion (the committee's words)We welcome the planned digitisation of the publication of court and tribunal lists and the consolidation into a single service in one location.
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18
Consider expanding digital portal to include all court information, results, and restrictions. Recommendation (the committee's words)We request further information on when this service will go live and what improvements are planned to the level of information on the lists and the accessibility of the service. We recommend that HMCTS considers whether the proposed digital portal should be expanded to include all court information, including results, reporting restrictions and court documents.
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19
Committee awaits update on Civil Procedure Rule Committee's work to improve document access. Conclusion (the committee's words)The Committee would welcome an update on the work being undertaken by the Civil Procedure Rule Committee to improve access to documents in civil proceedings.
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20
Establish streamlined digital portal for court document and reporting restriction access. Recommendation (the committee's words)The Government and HMCTS should establish a streamlined process for accessing court documents, including courts lists, using a digital portal modelled on Public Access to Court Electronic Records (PACER) in the United States. This should also be used to inform the media of reporting restrictions, including automatic restrictions and notice of applications for reporting restrictions.
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21
Comprehensive review of access to open court documents and potential legislation required. Conclusion (the committee's words)The Government and HMCTS should conduct, or ask the Law Commission to conduct, a comprehensive review on access to documents referred to in open court and propose legislation if necessary to clarify the position.
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22
Reporting restrictions show inconsistency in notification and ineffective compliance on social media Conclusion (the committee's words)Reporting restrictions play a key role in securing the fairness of the justice system. However, it is clear that there is inconsistency in the courts’ approach to notifying the media when restrictions are in place, and they are often not effective at ensuring compliance, particularly on social media. This is an important example of where the modernisation of the infrastructure of open justice is long overdue
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23
Enable the proposed digital portal to access a centralised database of reporting restrictions Conclusion (the committee's words)The proposed new digital portal should also enable access to a centralised database of reporting restrictions on cases.
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24
Current arrangements for court transcripts found to be unsatisfactory Conclusion (the committee's words)The current situation on court transcripts is unsatisfactory.
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25
Explore AI-powered transcription pilots and review contracts to improve court transcript accessibility Recommendation (the committee's words)HMCTS should explore whether greater use of technology, such as AI-powered transcription, could be piloted to see whether it can be used to reduce the cost of producing court transcripts. HMCTS should also consider whether the sentencing remarks in the Magistrates’ courts could be routinely recorded and transcribed on request. HMCTS should also review its existing contracts for transcription services to ensure that transcripts are more accessible to the media and the public.
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26
National Archives Find Case Law Service should be first step for judgment accessibility Recommendation (the committee's words)We welcome the establishment of the National Archives Find Case Law Service. However, this service should represent the first step in improving the public accessibility of judgments.
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27
Reform judgment collection, storage, and publication to reduce reliance on commercial publishers Conclusion (the committee's words)HMCTS should reform the way that judgments are collected, stored and published so that there is less reliance on commercial legal publishers. The judgments of courts are the product of a publicly funded justice system and the public, the media and the legal sector should not have to pay significant sums for access.
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28
Publish all Crown Court sentencing remarks in accessible audio or written form Conclusion (the committee's words)All Crown Court sentencing remarks should be published in audio and/or written form. HMCTS should ensure that the necessary resources are made available to enable sentencing remarks to be published.
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Require Government to provide status update on open justice project funding and completion Conclusion (the committee's words)We are concerned over whether the Ministry of Justice has allocated sufficient funding to ensure that the court reform programme can overcome some of the barriers to public and media access to information on courts. We ask the Government to provide a status update on any ongoing projects that are designed to enhance open justice, outlining how much funding has been allocated to deliver them and providing a date by which they will be completed.
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30
New legislative framework enhances open justice through remote court observation Conclusion (the committee's words)We welcome the new legislative framework for remote observation of court proceedings. The combination of this framework and improvement of the technological facilities of courts has the potential to enhance open justice by making it easier for the public and the media to observe proceedings.
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31
Evaluate the new remote observation framework considering court resources and transmissions Recommendation (the committee's words)It is right that judges are in control of the decision as to whether to allow remote observation. In some cases, judges will find these decisions difficult to make. It is crucial therefore that the effect of this new framework is evaluated. The concerns raised by the Lord Chief Justice and the Senior President of Tribunals, in particular in relation to the impact on court resources and the potential for unauthorised transmissions, will need to be followed up by an evaluation of how this new framework is operating in practice.
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Commission an evaluation of the new framework's first year of operation by June 2023. Recommendation (the committee's words)HMCTS should commission an evaluation in June 2023 to examine how the new framework has worked in its first year of operation.
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33
Livestreaming court proceedings offers significant potential to enhance open justice and public accessibility. Conclusion (the committee's words)The power to allow the transmission of proceedings to designated livestreaming premises has great potential to enable more people to observe court proceedings and enhance open justice. If students were able to observe cases in classrooms and lecture halls, or if community centres could host livestreams of court proceedings, the accessibility of court proceedings would be greatly enhanced.
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34
Broadcasting Crown Court sentencing remarks positively enhances open justice and public understanding. Conclusion (the committee's words)We welcome the broadcasting of Crown Court sentencing remarks. It is a positive step for both open justice and the public understanding of sentencing.
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35
Commission research to identify suitable civil and criminal proceedings for broadcast and video archiving. Recommendation (the committee's words)More widely, we recommend that HMCTS and the Judiciary commission research to determine which civil and criminal proceedings could be suitable for broadcast and video archiving. In principle, we would support the extension of broadcasting and recording to civil trials that do not involve oral evidence. In the criminal context, the broadcast and recording of sentencing in Magistrates’ courts could also be beneficial. However, we do not support the broadcasting of any elements of criminal trials other than the sentencing remarks of the judge.
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36
Judicial Review and Courts Act 2022 changes require evaluation of impact on open justice. Conclusion (the committee's words)The changes to criminal procedure in the Judicial Review and Courts Act 2022 should be carefully monitored. After one year of their operation, the Ministry of Justice should initiate an evaluation of how the changes are operating in practice, including their impact on open justice.
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Documenting and timely online publication of court information can mitigate open justice concerns. Conclusion (the committee's words)The potential effect of these changes on open justice might also be mitigated by ensuring that the relevant information that would have otherwise been said in open court is documented and published online in a timely fashion.
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38
Single Justice Procedure's lack of transparency remains a significant concern. Conclusion (the committee's words)We remain concerned by the Single Justice Procedure’s lack of transparency.
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Review the Single Justice Procedure to enhance transparency through timely publication of information. Recommendation (the committee's words)The Government should review the procedure and seek to enhance its transparency by ensuring that any information that would have been available had the cases been heard in open court is published in a timely fashion.
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40
Strengthen open justice governance by formalising Data Governance Panel and establishing user group. Recommendation (the committee's words)The Government should clarify and strengthen the governance structures on open justice. The Senior Data Governance Panel should be formalised and its powers and remit should be defined and published. It is vital that the decisions made by the Panel are as transparent as possible. The positive work of the Media Working Group should be built upon and it should be empowered to make recommendations that are then considered and decided upon by the Senior Data Governance Panel. A separate court information user group should be established to represent the interests of groups other than the media, such as court observers, NGOs, researchers and law tech that can also make recommendations that are considered and decided upon by the Senior Data Governance Panel.
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Ask Law Commission to propose reform of Section 12 for better transparency-confidentiality balance. Recommendation (the committee's words)We agree with the President of the Family Division that there should be a review of section 12 of the Administration of Justice Act 1960. In our view section 12 of the Act should be reviewed and reformed so that it can replaced with a much more targeted measure that respects the principle of open justice. The Government should ask the Law Commission to produce a proposal for the reform of section 12 of the Administration of Justice Act 1960 that provides a better balance between transparency and confidentiality.
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42
Media access to Family Courts supported, but resource allocation and reporting interest remain uncertain. Conclusion (the committee's words)In broad terms, we support the Transparency Review’s principal recommendation that media representative and bloggers should be able to report, subject to the relevant restrictions, on the cases they observe in the Family Court. We would caution, however, that given the decline in the number of court reporters in recent years, it is unclear whether media outlets will necessarily dedicate greater resources to reporting on the family courts as a result of these changes. We look forward to seeing the results of the pilots.
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Success of informative family court lists pilot depends on identifying cases of public interest. Conclusion (the committee's words)We welcome the commitment to produce more informative family court lists. The success of the proposed pilot will depend on journalists and bloggers being able to identity cases that will generate wider public interest.
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Target to publish 10% of judgments faces concerns about anonymisation unit resources. Conclusion (the committee's words)We welcome the Transparency Review’s proposal to set a target of every judge publishing 10% of their judgments. If achieved, this would make a significant 56 Open justice: court reporting in the digital age contribution to the transparency of the Family Court and to open justice. It is crucial that the public and the media are able to access a greater number of judgments from the Family Court. However, we share the concern raised by witnesses as to whether sufficient resources will be allocated to enable the proposed anonymisation unit to function as effectively as it needs to in order to ensure that a consistent and representative number of judgments are published and to minimise the number of anonymisation errors.
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Provide requisite resources to establish anonymisation unit for safe publication of Family Court judgments. Conclusion (the committee's words)His Majesty’s Court and Tribunal Service should ensure that the requisite resources are provided to enable the establishment of an anonymisation unit that facilitates the publication of at least 10% of Family Court judgments without the risk of identification of the parties involved.