AddThis SmartLayers

Law Column: Open Justice Reform – Modernising Court Procedures


Crime has always been a staple source of stories for journalists, and although all aspects of human life is to be found in the civil courts, only the most sensational cases have tended to be covered. In an age when the dedicated (criminal) court reporter has all but disappeared, finding a newsworthy story in the civil court system has become even more difficult.

So it’s in that context that a consultation opened by Ministry of Justice, which is essentially about open justice, should be of interest to all journalists.

The Ministry’s consultation focuses, at least in part, on clarifying open justice requirements in relation both to hearings in private and to reporting restrictions.

Helpfully, the consultation acknowledges an ongoing commitment to open justice. Throughout the consultation, there is recognition that administering justice is required to be done in public. What a refreshing approach at a time when open justice seems to be under attack from various quarters.

The wording of the relevant procedural rule which currently deals with open justice, begins by stating that hearings are to be held in public. However, there is an inherent tension between the need for an element of secrecy to do justice and the rights of the public to know what is going on, which has been illustrated in recent Court cases. The proposed changes set out to address this tension and propose further reforms.

The key changes which the Ministry is proposing address and clarify a number of important issues:

–           the proposed revisions make it clear that, unless an exception (such as an issue of national security) applies, a hearing should be held in public. In order to reinforce the requirements of section 12 of the Human Rights Act (freedom of expression), if a hearing is to be held in private, the Court must, “consider any duty to protect or have regard to a right to freedom of expression which may be affected”;

–           hearings must (either in part or in full) be held in private only if the Court is satisfied that to do so is necessary to secure the proper administration of justice;

–           it is proposed that a duty be imposed on the Court to make a copy of any Order directing that proceedings be heard in private, available online.  This simple step, which has been suggested for years, will enable anyone who is not party to the proceedings, such as the media, to know what’s happening and importantly, to know if it is appropriate to apply to set such an Order aside; and

–           all hearings will be recorded – unless the judge directs otherwise.  But beware, this is not carte blanche to record hearings, because it is also being suggested that no unofficial recording equipment may be used without the Court’s express permission.

For journalists, the changes proposed in this consultation, if implemented, would provide some welcome clarity. In particular, the proposed rule changes emphasise that any departure from the principles of open justice needs to be supported by clear evidence and carefully scrutinised by the Court.

In addition, the proposed online publication of Orders directing that proceedings be heard in private should enable the media to understand reporting restrictions more clearly and, where necessary, to challenge such decisions.

But hurry – the consultation closes on August 23rd, so time is short if you want to tell the Ministry that you support the changes.

The consultation can be found at: