Fifth Report - Open justice: court reporting in the digital age

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.

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.

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.

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. (Paragraph 20) Court reporting in the digital age

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.

The decline in court reporting has had a negative effect on open justice in England and Wales.

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. (Paragraph 33) 52 Open justice: court reporting in the digital age The barriers to open justice

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.

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.

HMCTS should publish a citizens’ charter that outlines the public’s rights to access information on the courts.

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.

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.

Every court should list an email address on its website to enable the media and the public to request access to remote hearings.

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. (Paragraph 49) Open justice: court reporting in the digital age 53

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.

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.

We welcome the planned digitisation of the publication of court and tribunal lists and the consolidation into a single service in one location.

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.

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.

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.

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.

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

The proposed new digital portal should also enable access to a centralised database of reporting restrictions on cases.

The current situation on court transcripts is unsatisfactory.

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.

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. (Paragraph 93) 54 Open justice: court reporting in the digital age

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.

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.

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. (Paragraph 98) Court reform and open justice

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.

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.

HMCTS should commission an evaluation in June 2023 to examine how the new framework has worked in its first year of operation.

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.

We welcome the broadcasting of Crown Court sentencing remarks. It is a positive step for both open justice and the public understanding of sentencing.

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. (Paragraph 119) Open justice: court reporting in the digital age 55

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.

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.

We remain concerned by the Single Justice Procedure’s lack of transparency.

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.

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. (Paragraph 134) The Family Court

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.

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.

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.

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.

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. (Paragraph 155) Open justice: court reporting in the digital age 57