Putting secret justice on trial

Open Justice
February 14, 2003

When my clients ask me about the effect of publicity on their reputation after litigation, I usually tell them that they should not worry. No one will turn up, no one will be interested and even if the press publish a story, by the next day it will be no more than the wrapping for fish and chips. The reality of most justice is that it is open theoretically, but the resolute indifference of the public to the disputes of others means that it takes place in impenetrable privacy. This book concerns the relatively rare cases where a loss of privacy caused by a trial or other judicial proceeding is a real consideration.

To an English common lawyer, used to the cut-and-thrust of jury trials, the title of this book creates the same impression as a book called Apple Pie: A Critique of Motherhood in the Kitchen might on an American.

Open justice is, for us, a self-evident good that requires no more thought than the idea that trains should, whenever possible, run on time. This is an interesting and challenging book. Joseph Jaconelli takes this self-evident truth and subjects it to analytical testing. What has seemed simple and obvious becomes more interesting when one reflects, in my case for the first time, on the significance of the well-known fact that the most important part of any jury trial - the deliberations of the jury prior to verdict - takes place in private.

There is already a balance at the heart of our system. Much of it takes place in public, but some things do happen in varying degrees of privacy.

Some parts are in public in that the jury is absent, the public may be present, the accused and his or her lawyers are present, but the press are not allowed to report the proceedings. This is simply to prevent the jury from being prejudiced by learning things that are not material to their task. At other times, the hearing may take place with other restrictions on openness, such as anonymity of witnesses or (usually for reasons of state security) the complete exclusion of press and public from the hearing of evidence.

Some non-criminal proceedings are held in private, with neither public nor press access. Family proceedings, whether concerned with the children or with financial matters, are heard in this way for reasons that seem obvious. It is not the business of anyone but the parties why they have split, and the children are themselves entitled to privacy in intimate family matters that may determine their fate. However, the public is thought to have a right to know why two solicitors have decided that their partnership must split if they cannot agree the terms of the split. If they can agree those terms and do not need to litigate, they can keep their affairs private. There is no public interest in knowing of their problems; the public interest lies only in open justice. The state should not intervene in people's lives in secret. The publicity of a trial or other hearing can operate not in any genuine public interest, but as a punishment for parties who are not able to agree their differences in sensitive matters.

"Secret justice" is, intuitively at least, an oxymoron. The judicial system that is not open to public scrutiny is a powerful instrument of oppression in unscrupulous hands. Moreover, the errors and absurdities that can be perpetrated by a well-meaning judicial system can be best exposed and corrected by public derision. However, what is the point of a judge sitting in public, hearing the evidence in public and giving a reasoned judgment in public, if nobody knows how and why he or she was appointed to the bench in the first place? I am not advocating a fundamental change in the present practice, merely highlighting an area where it is likely that some secrecy can have benefits. The alternative is an overtly politicised judiciary.

In fact, our system allows privacy quite widely, as Jaconelli shows. Where injunctions are sought that would be pointless if the defendant found out about them in advance, the courts readily sit in his absence. Where warrants for seizure of material that might be probative of crime are applied for, no one suggests that the defendant whose material it is should be entitled to be present. The problem, which this book addresses, is to find some principle to guide judges in hard cases where it is not obvious that the hearing should be public. Such principle may also guide the legislature in making new laws. The European Convention on Fundamental Rights and Freedoms, which was ratified by the UK in 1951, guarantees the determination of civil rights and obligations and criminal charges by a fair and independent tribunal and in a public hearing. The right to a public hearing can be reduced and restricted for various reasons set out in the convention. Obvious cases are rape and blackmail: there is a public interest in convicting criminals and, for different reasons, complainants in this type of case are reluctant to come forward and give evidence unless guaranteed anonymity. But where is the line to be drawn?

Thus far, I have considered areas where for reasons connected with the subject matter it is thought that privacy may be required, as an exception to the general rule of openness. There is a further logical consequence of openness: broadcasting. We have a substantial but often theoretical openness to our system, but broadcasting and photography are forbidden.

Yet, these methods are the channels by which the public now acquires its information. Thus, the system says: we will make our proceedings open to you if you take time off work to come and see them, or if you take the trouble to read broadsheet newspapers and if those newspapers happen to have taken an interest in the particular case (a very haphazard process).

Otherwise, you will get only the little scraps that appear in news broadcasts or tabloid newspapers (little more than the result unless the evidence is truly sensational).

Why is this? It is because it is feared that the presence of television cameras would change the way in which justice is done. It would change the behaviour of participants. Not all cases would be broadcast, and those that were would be the focus of intense public scrutiny, which would be disproportionate to their importance and might cause the result to be different from that which would otherwise have followed. There are notorious cases in America that make the point and these are discussed here, but we know this already. Consider high-profile criminal cases involving famous people. How many have resulted in convictions, except where the defendant was a member of the Conservative Party? Lester Piggott and Jonathan Aitken pleaded guilty. Jeffery Archer was convicted by a jury.

I am prevented by the law of defamation (another interesting aspect of our open system) from naming others who were not convicted, but who might have been but for their fame.

Jaconelli, like any modern legal academic, is a comparative lawyer. His subject is the law of England and Wales, but it would be absurd to treat our law on this topic in isolation. There is more experience of secret justice in foreign systems, and there is also more experience of publicity, particularly in the US. Jaconelli provides brief summaries of some notorious American cases to explore the real impact of broadcasting legal proceedings.

This is a practical work about systems of justice, and it is the result of wide-ranging learning and fresh thought. The development of the law requires a coherent overview and then a search for principle. The English common law proceeds on a case-by-case basis and can get itself in an unholy muddle. The role of academic works such as this is to survey the field, to sum up the state of the law as it is, and to inform and guide decisions in future cases. This book does this admirably and casts light on what has hitherto been an unlit and unvisited area.

It is unusual to contemplate anyone other than a lawyer (and usually only an academic lawyer) reading a legal textbook. This one, however, concerns an area of real political interest. The technicalities are readily understood. I do not know what is taught on media-studies courses (which is a sign of age, not disdain), but this book could be included on such syllabuses, and read by editors, broadcasters and journalists as well as lawyers.

Andrew Edis QC is a practising barrister.

Open Justice: A Critique of the Public Trial

Author - Joseph Jaconelli
ISBN - 0 19 825258 7
Publisher - Oxford University Press
Price - £50.00
Pages - 369

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