Civil Procedure Rule Committee propose major curtilage of Open Justice
In this guest post Daniel Cloake (aka mouseinthecourt) shows how amendments to the CPR are being used to curtail long established common law principles of open justice and transparency… Continue reading
“As Lord Hewart CJ famously declared, in  1 KB 256, 259, ‘it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done’.”
Wise words indeed, from Lady Hale in the 2019 Supreme Court case of Dring (on behalf of the Asbestos Victims Support Groups Forum UK) v Cape Intermediate Holdings Ltd  UKSC 38,  AC 629 at [ 1]. The case reaffirmed the view that the purpose of Open Justice is “to enable the public to understand and scrutinise the justice system” . To do this we of course need to be able to view the hearings.
It is with some bewilderment therefore that, just three years later, the Civil Procedure Rule Committee have introduced a mechanism that effectively removes the right of the public to access remote hearings.
The Civil Procedure Rule Committee (CPRC)“was set up under the Civil Procedure Act 1997 to make rules of court for the Civil Division of the Court of Appeal, the High Court and the County Court”. Its current chair is Sir Geoffrey Vos, Master of the Rolls.
The mouseinthecourt has been monitoring their minutes and has compiled a log of anything Open Justice related: “Open Justice at the rules committee“.
Practice Direction 51Y
Practice Direction 51Y was added at the start of the Covid-19 Pandemic when physical access to Court Rooms was restricted. It was an urgent addition, and introduced without wider consultation.
It contained (in para 3) a provision that: “where a media representative is able to access proceedings remotely while they are taking place, they will be public proceedings“.
This was always a problematic clause as it contrasted with the provision of CPR 39.2 which included a test of necessity to remove the public nature of the hearing:
“(1) The general rule is that a hearing is to be in public. A hearing may not be held in private, irrespective of the parties’ consent, unless and to the extent that the court decides that it must be held in private, applying the provisions of paragraph (3).
(3) A hearing, or any part of it, must be held in private if, and only to the extent that … it is necessary to sit in private to secure the proper administration of justice…”
The test of necessity is absolute – it’s the hearing “must be held in private” not “could be held in private”.
Shortly after PD51Y was introduced, the minutes from the CPRC reveal it was done so as “to ensure the Open Justice principle is not compromised“.
An attack on Open Justice
An update, published in the past few weeks, must surely be one of the biggest attacks on the principle of Open Justice in recent times.
The update proposed to remove all but this one sentence from PD51Y:
“Where a media representative is able to access proceedings remotely while they are taking place, they will be public proceedings.“
The minutes reveal that the CPRC noted that the rest of PD51Y would lapse (because it had always been intended as a temporary measure to deal with remote hearings during the pandemic) but wanted to put this particular rule on “a permanent footing in the rules (perhaps through an amendment to Part 39)”.
The notion that just because a press-card-holder could view, not is viewing, but could view a hearing, should be considered an outrageous attempt to purport that a hearing is being held in public.
Moreover, the suggestion that access to remote proceedings by a media representative is of itself sufficient to make those proceedings “public” flatly contradicts the fact that accredited media representatives can access private family proceedings remotely, under the Family Procedure Rules, which does not make them public: see FPR rule 27.11(2)(f). (What would make them public is only access to the public.)
This update was waved through without public consultation or fanfare, and was approved in a private meeting of the CPRC on 4 March 2022 with Lord Justice Birss, Deputy Head of Civil Justice at the chair.
“The opposite of public justice is of course the administration of justice in private and in secret, behind closed doors, hidden from the view of the public and the press and sheltered from public accountability.“
– Storer v British Gas Plc  EWCA Civ B528,  1 WLR 1237 (25 February 2000), at para 32.
What about s 85A of the Courts Act?
The CPRC minutes of 4 March 2022 explain that “the other provisions of PD 51Y do not need to be continued” citing the insertion of the “new section 85A into the Courts Act 2003″. One relevant provision in section 85A reads:
“Enabling the public to see and hear proceedings
(1) If the court directs that proceedings are to be conducted wholly as video proceedings, the court—
(a) may direct that the proceedings are to be broadcast (in the manner specified in the direction) for the purpose of enabling members of the public to see and hear the proceedings;
(b) may direct that a recording of the proceedings is to be made (in the manner specified in the direction) for the purpose of enabling the court to keep an audio- visual record of the proceedings.”
The notion that the test of necessity can be removed in favour of a wishy-washy phrasing of “may direct” must be challenged by those that wish to ensure our courts remain open to observation.
It does not help that this provision has been strictly interpreted in such a way as to frustrate the aims of open justice and transparency, by decreeing that the court only had power (under section 85A) either to permit live broadcasting (live-streaming) at the time of the hearing, or recording of the hearing for the court’s own records. It did not have power to allow a pre-recording for later broadcast. Accordingly the judge refused permission for a television production company to record and re-broadcast the proceedings in the interests of open justice: see R (Good Law Project and others) v Secretary of State for Health and Social Care  EWHC 346 (Admin),  PTSR 1251 (18 Feb 2021).
These changes, by definition, will only affect members of the public, who have limited resources and appetite to mount a challenge.
They won’t affect members of the National Union of Journalists and neither will it affect those who can rely on the assistance of the Media Lawyers Association, an organisation who “intervenes selectively in legal proceedings where principles relating to open justice are at stake“.
The tension between the contents of Practice Direction and whether it can override a Common Law right to access hearings might be something the courts have to consider at some point. Which member of the public steps up and faces the potentially ruinous risk of costs remains to be seen.
“Access to a court building for the purpose of attending a public hearing is a matter of legal right … there was no need to enact legislation to confer a right of admission on members of the public because the right of the public to be present at court hearings is an ancient common law right.”
– R (O’Connor) v Aldershot Magistrates’ Court and Crown Prosecution Service  EWHC 2792 (Admin) (04 November 2016), at para 28.
Appendix: from CPRC Minutes – 4th March 2022
- The Chair explained that PD 51Y (Video or Audio Hearings During Coronavirus Pandemic) ceases to have effect on the date on which the Coronavirus Act 2020 ceases to have effect. It is, therefore, due to expire on 25 March 2022.
- The first sentence of paragraph 3 of PD 51Y , reads, “Where a media representative is able to access proceedings remotely while they are taking place, they will be public proceedings.” It is a useful clarifying provision which has facilitated the use of remote hearings in civil justice. Its introduction played a key role in the uptake of remote hearings at the start of the pandemic. Remote hearings have proved themselves to be very useful and, in many cases, to improve access to justice.
- It was proposed to amend PD 51Y to alter the expiry date for the first sentence of paragraph 3, decoupling it from the expiration of the 2020 Act and setting a xed date for its expiry 12 months later. Such an amendment is necessary as it will take some time to put paragraph 3 on a permanent footing in the rules (perhaps through an amendment to Part 39) and allow what has proved to be a useful and important provision to continue in operation after 24th March, giving time to develop a rule proposal, consult the MoJ and consider related rules changes.
- It was NOTED that the other provisions of PD 51Y do not need to be continued, given that the Police, Crime, Sentencing and Courts Bill was expected to insert a new section 85A into the Courts Act 2003.
- It was RESOLVED to amend PD 51Y to extend the expiry date for the first sentence of paragraph 3 (decoupling it from the expiration of the Coronavirus Act 2020) by 12 months, until 25th March 2023. Action: Sub-Committee, Drafting Lawyers and Secretariat to incorporate into urgent PD Update.
– a Courtroom blogger who also tweets @mouseinthecourt.
Featured image: Access Denied, via Shutterstock.