The following is a guest post by Dr Judith Townend of the University of Sussex which originally appeared on the Transparency Project blog.
The chief executive of HMCTS, Susan Acland-Hood, has responded to an open letter from NGOs and academics raising concerns about the provision of open justice measures during the COVID-19 emergency period. In summary, the response confirms:
- that for public hearings held “fully remotely”, the public can request access and there is responsibility for HMCTS to facilitate “where possible”. The letter acknowledges the practical difficulties encountered by public observers and says that HMCTS will continue to review guidance;
- where courts are open, members of the public can observe in person. But they can also make a request to observe remotely – such requests would be referred to the judges/panel/bench for direction. Remote access to jury trials will not be permitted but can be observed via live-feed to an adjoining room;
- the majority of court lists are online but HMCTS recognises that lists for Magistrates’ courts are not available in this way: HMCTS is “working hard to make these lists available online”;
- HMCTS is willing to engage further – alongside MOJ and Judiciary – and will consider appropriate structures for doing so.
NB: These points apply to hearings that are open to the public; public access to the family court is subject to a more restricted regime for the media and, on a pilot basis, legal bloggers. The open letter originally appeared on the Justice Gap website.
[It was also published on the ICLR blog here: Open letter from NGOs and academics on open justice in the Covid-19 emergency.]
Lucy Reed, chair of the Transparency Project, was a co-signatory to the letter, as were TP core committee members Dr Judith Townend, University of Sussex; Dr Julie Doughty, Cardiff University; and Paul Magrath, ICLR. As well as receiving this letter, some of the signatories to the letter have also had further opportunities to engage with HMCTS and MOJ civil servants to discuss the current difficulties faced, and mechanisms for enabling public observation during and after the emergency period. We thank HMCTS for this opportunity, and look forward to further engagement. The issues we highlighted in our letter have not yet been resolved – while there may be a theoretical right to observe, it is not always possible in practice (see, for e.g. issues for public access reported here and here from 29-30 June). We are glad to hear that the court service is alert to the issues around open justice provision, and willing to talk further with academics and NGOs.
Below, is the letter in full, or it can be downloaded here.
Thank you for your letter of 29th May regarding open justice during the Covid-19 crisis period.
HMCTS is fully committed to supporting open justice and your letter acknowledges the work we have done in the very challenging circumstances of the last three months to maintain this, particularly in respect to media access. However, you believe we need to do more to ensure public access to court proceedings.
As you know, we have been working at pace to increase the capacity of courts and tribunals to use audio and video equipment to support hearings. Some of these hearings are conducted entirely remotely, others are held in a court building with some participants taking part physically, others remotely.
For those hearings held fully remotely, the public can request remote access too and it is the responsibility of HMCTS staff to facilitate this where possible. The guidance on our HMCTS gov.uk site provides information as to how users should make such a request to a particular court. We are aware, however, of the difficulties described in your letter and we will continue to review this guidance in response to feedback from you and others.
Where a hearing is held in a court building, public access has continued to be maintained with specific measures in place to ensure social distancing. As of the start of this week, almost two-thirds of our buildings were open and we are expecting to open the remaining number over the next few weeks. This will enable the public to observe hearings in the same way as before the Covid-19 crisis.
We do recognise, however, that restrictions on travel have made physical attendance difficult or impossible. The public will therefore continue to be able to make a request to the court to observe these hearings remotely in certain circumstances. Such requests are referred to the judges/panel/bench in order that any appropriate direction can be made.
Remote access to jury trials, however, is not permitted for either the public or media. Instead, particular arrangements have been put in place to ensure that those Crown Courts that are able to hold such hearings can accommodate both public and media to observe the proceedings via live-feed to an adjoining room in the court building.
One of the areas of work that we have been engaged on to support open justice is the provision of online lists of forthcoming hearings. The majority of courts and tribunals lists are now available online but we recognise that no such provision is available for Magistrate’s Courts. We are, however, working hard to make these lists available online and we hope this will take place soon.
We have been coping with unprecedented circumstances over the last few months and we recognise that not all arrangements in place over this period have worked perfectly. They have, however, enabled us look at how we support open justice in a different light and there are positive lessons we can and should draw, not least in shaping how future elements of the reform programme can enhance transparency and openness in the justice system.
We will want to engage you and others in discussions in this area and – alongside the judiciary and the Ministry of Justice – we will be considering the appropriate structures to do this effectively. In the meantime, I am grateful to you for raising the issues you have and I look forward to further discussion on this essential aspect of the work of our justice system.
Chief Executive, HM Courts & Tribunals Service