In September 2023, JUSTICE responded to the Ministry of Justice’s consultation, Open Justice: the way forward.
Our response paper, titled Open Justice in a modern justice system: purposes, tensions and tools, sets out JUSTICE’s assessment of the purposes of open justice, what other principles, rights and interests are in tension with open justice, and what practical tools can give effect to open justice.
In our assessment, open justice has three clear purposes: it preserves the legitimacy of the justice system in the eyes of the public; it facilitates scrutiny of the justice system and the actors involved in it; and it increases the accessibility of the law itself.
However, there are various factors in tension with open justice, which impact the way it is given practical effect. These include the fair administration of justice; privacy; dignity and authority of proceedings; accuracy; protection from harm and other misuse of information; judicial independence & impartiality; national security; and resources.
The challenge, therefore, is to identify how the tools which enable open justice in practice can strike the right balance with these tensions, while ensuring open justice is not eroded to the extent it is an optional add-on, but rather continues to be protected as a fundamental principle of our justice system.
Our paper makes several conclusions and recommendations in response to the consultation, summarised at pages 7 to 8 of the paper. In brief:
- Open justice is not just about media access; members of the public, academic researchers, civil society organisations all have different but important reasons for wanting to understand and scrutinise our justice system, and their access therefore needs to be considered in policy making too.
- Before we roll out broadcasting of proceedings any further, the impact on marginalised and disadvantaged groups needs to be considered and evaluated;
- There needs to be a review of the complex landscape of different access mechanisms to court records;
- Data on the justice system and the accessibility of that data are aspects of “open justice”; this data needs to be managed safely and ethically, but also with transparency and accountability – particularly if the executive are going to be in the role of gatekeeping that data; and
- How we let third parties use that data is depends on what we deem to be in “the public interest”; what is in the public interest needs to be subject to ongoing proactive engagement with the public, not a one-off consultation.