Despite its much-touted commitment to open justice, the English court system can be difficult to navigate, even for experienced lawyers and seasoned reporters. For ordinary members of the public, trying to find out and follow what’s happening in the courts can be truly bewildering.
After hearing evidence about these challenges in 2022, the House of Commons Justice Committee expressed concern about “the practical reality of open justice”, and recommended the government “publish a citizens’ charter that outlines the public’s rights to attend proceedings and access information”. The government committed to publishing this “charter” by the end of 2023.
The government’s (im)practical (mis)guidance on public access rights
On 29 December 2023, HM Courts and Tribunal Service (HMCTS) published a guidance document entitled “How you can attend or access courts or tribunals”. Disappointingly, instead of setting out public access rights in a way that empowers members of the public to exercise them effectively, this short guide provides only superficial suggestions for where one might start to look for answers.
Worse still, the HMCTS guide is not only a missed opportunity; it risks taking us a step backwards. Where it does move away from vague advice and venture into specifics, the guidance is heavily caveated and occasionally inaccurate (such as asserting a ban on using laptops). Together with other members of the Courts and Tribunals Observers’ Network, we wrote to the Lady Chief Justice, Lord Chancellor and Chair of the Justice Committee expressing our concerns about these deficiencies in this guidance.
This “guide” clearly doesn’t cut it as the long-promised charter of public access rights. So where have things gone wrong? Here’s our take on three key problems plaguing public access to court hearings and information, and why the HMCTS guide comes up short.
1. Data dispersed: How to find out what’s happening in the courts
The court lists are the starting point for finding out when, where and how hearings are taking place. Going off the guide, you would think this information was just a click away as it directs you to the HMCTS hearing lists. But from there one is redirected to a clutter of court lists, many of which are managed by external service providers who structure data in different ways across these various lists.
While the guide glosses over these complexities and inconsistencies, this fragmented listing system means that even the most basic information about hearings is hard to pin down. We check more than eight different court lists housed on four different websites – some weekly, but most on a daily basis.
Given this public listing information is very limited (just the name of the case) and comes very late (the evening before a hearing), we have to engage proactively with court staff, law enforcement agencies and lawyers to get advance notice of hearing dates and case information. We publish details of upcoming hearings in the corruption-related cases we follow on our court calendar to promote transparency about what’s happening in our courts.
2. Digging for skeletons: How to get hold of court documents
Providing listing information that enables the public to enter the right courtroom at the right time is, quite literally, only a threshold requirement for open justice. As Lady Hale explained in a leading judgment about non-party access to court documents, an important purpose of open justice is “to enable the public to understand how the justice system works and why decisions are taken”. This requires members of the public “to be in a position to understand the issues and the evidence adduced in support of the parties’ cases”.
Time and time again, the courts have affirmed the principle that the public should generally be granted access to documents referred to in open court. Yet in practice we frequently encounter resistance – even hostility – from parties and their lawyers when we request court documents that should be easily accessible to the public.
The Financial Times was recently on the receiving end of this after it reported on the court order restraining £75 million in assets linked to Michelle Mone and her husband Douglas Barrowman as part of the National Crime Agency’s investigation into alleged PPE fraud. The Conservative peer took to social media to complain that “private and confidential matters” were “leaked from Govt sources”. Bravo to the FT for not only putting the record straight, but also publishing the court order as a lesson about what open justice means.
The HMCTS guide glosses over the practical challenges of getting hold of even the most basic court documents. In our experience, it can require steely resolve to prise skeleton arguments out of lawyers’ hands at a hearing. Meanwhile, a single document from the court file costs £11 a copy and transcripts of a trial can cost tens of thousands of pounds. This means that in practice, access to court documents largely relies on those with inside knowledge of the system and cash to spend.
3. Privileged access: The press as a proxy for public access
While journalists frequently face practical challenges obtaining access to court information, they generally have an easier time than ordinary members of the public or civil society organisations like ourselves. This is because open justice is often wrongly conflated (including by judges on occasion) with media access to the courts.
While the press plays a crucial watchdog role in reporting on court proceedings, the principle of open justice is much broader than media access. Access for the wider public is especially important in view of the decline in court reporting and the fact that a lot of the media is behind a paywall.
It’s deeply disappointing that the HMCTS guide – intended to promote public access rights – not only perpetuates a privileging of media access but also entrenches a worrying trend in which this special access is restricted to a small subset of journalists who are “accredited”.
We have long urged the MOJ to adopt and formalise a more inclusive approach to engagement on open justice that encompasses not just media but also civil society, academic researchers, other public interest reporters, and the broader public. Having failed to consult these stakeholders on the HMCTS guide, the result is a vague and misleading guidance document prepared by the HMCTS Communications Team rather than a formal statement of public access rights developed following an inclusive consultation process.
Low ambitions to deliver open justice in a creaking court system
These persisting problems – a fragmented system of court listings, the difficulty of obtaining court documents, and the reliance on the press as a proxy for public access – show how the lofty principle of open justice has collided with the practical reality of a creaking court system that is battling with chronic understaffing, crumbling infrastructure and rising caseloads.
Lady Chief Justice Carr recently told the Justice Committee that there was an “endemic, ingrained problem” with the maintenance of court buildings, with “something like 100 courtroom closures every week”. The first female head of the judiciary said the Crown Courts are operating at “maximum capacity”, but with backlogs at an “all-time high” she warned that “radical reform” would be needed to meet the government’s aim of reducing outstanding Crown Court cases to 53,000 by March 2025.
Since we spend a lot of time observing white-collar crime trials at Southwark Crown Court, we can attest to these challenges – as plaster peels off the walls and rats scuttle across the corridors, major trials are being pushed out to 2026 because there is such limited court availability. While judges and court staff do their best in the circumstances to assist observers like ourselves with queries, we experience first-hand the consequences of these challenges for the effective operation of open justice.
The government’s attempt to pass off the new HMCTS guide as the long-promised charter of public access rights is a sobering reflection of the government’s low level of ambition to safeguard open justice in the face of these challenges. Yet open justice is not a luxury; it is the lifeblood that sustains public confidence in the rule of law and the administration of justice. A step change in commitment to public access rights is urgently needed to ensure the principle of open justice is preserved as a practical reality in our courts.
