A manifesto for 21st century open justice

17 March 2011 by Adam Wagner

One of the country’s most senior judges, Lord Neuberger, has given a stirring speech on the challenges of open justice in the 21st century. His ideas are progressive and practical, and amount to a manifesto for building a more open justice system, fit for the internet age.

First, that judgments must be “clear and easily interpretable by lawyers. And also to non-lawyers.” The second sentence is crucial, and as I have also recently pointed out, this is all the more important in an age where legal aid cuts mean more people may be representing themselves in court.

He highlights the tension between brief judgments which run the risk of oversimplification, and “bad” judgments which are “over-long, meandering, thick with digressions, obiter dicta, and needlessly complex”. Judgements, he concludes, should be as short as possible. Unfortunately, this laudable aim is not yet followed by all judges.

Also, the “vexed” question of whether courts should deliver a single judgment or, as if often the case, a number of different ones. Obviously if there is a dissenting opinion, it is important that it be heard. But should judges who agree with each other bother with separate opinions? Clearly not if judges are simply competing with each other to write an “even better” judgment than their colleagues. Neuberger suggests virtually every appellate judge has been guilty of writing “vanity judgments”. Judges should, he suggests, be given training on judgment writing in order to iron out these problems.

On the same topic, he offers a fascinating insight into the writing of his single judgment in the recent supreme court case of Pinnock, which introduced a human rights proportionality defence to local authority eviction cases:

Lord Phillips [president of the supreme court] was anxious that there was only one judgment, given the importance of clear guidance in such a case. Although it went out in my name, the contributions to the judgment of the other eight members of the court were substantial, in some case very substantial. It was hard work, involving a number of meetings and a great deal of email communication, but the result was much better than my original draft.

It is fun to imagine the supreme court justices grappling with MS Word track changes, and interesting to see that they sometimes act as a committee.

Neuberger’s second focus is on the use of new technology, a topic I have regularly touched upon. The internet in general and social media in particular can offer a huge amount to the justice system, at a relatively low cost. Neuberger certainly agrees with this, and offers some sensible suggestions.

Put simply, a wider range of technology should be used to broadcast court hearings. It is a “matter of concern” that despite most courts being open to anyone, “members of the public rarely come into our courts to observe what goes on in them.” Nueberger blames short attention spans and more home entertainment, but also stresses that the judiciary need to do “everything reasonably practical” to enhance public access to courts.

To that end, he supports opening up court hearings to tweeters, provided it does not interfere with hearings. Mercifully, he doubts that judges will be tweeting from the bench.

He also argues that a wider variety of court hearings should be broadcast, as long as there are proper safeguards. And Supreme Court hearings, which are currently filmed at great expense but broadcast to very few, should be televised on their own channel or through the BBC iPlayer. I have made this argument too, but the supreme court have said it would be too expensive to do so. But with one of the UK’s most senior judge’s making the same point, perhaps this should be revisited?

Neuberger goes on to lament the often inaccurate legal reporting in the press, and highlights the positive influence of legal bloggers and tweeters. The press, he suggests, has an even more important role with less people attending courts, and inaccurate reporting, in particular relating to human rights cases,

may tempt some into thinking that it is hardly worth maintaining the State’s inability to deny you a fair trial, to kill or torture you, and to preclude you enjoying freedom of expression.

Quite so. Neuberger highlights two particularly bad examples of inaccurate reporting, one of which, the deportation of Learco Chindamo, I have covered in detail. He suggests there are two different tendencies at work:

The first is simply outright misreporting. The story said one thing, when the truth was the opposite. The second is a more subtle form of misreporting: the Human Rights Act is brought in to take the blame for a decision to which in might have played a part – and the part the critics suggested it did play, but which in truth it did not.

He then makes a statement which should hang above every legal journalist, blogger and tweeter’s desk:

Persuasion should be based on truth rather than propaganda. It is one thing to disagree with a judgment, to disagree with a law and to campaign to change the law, but it is another thing to misstate what was said in a judgment, or to misstate the law.

Superb stuff, and an overdue statement from the senior judiciary. He goes further, arguing (as I have) that more can be done by the judiciary to encourage accurate reporting. More judges should build on the supreme court’s practice of issuing short, accessible judgment summaries. Judges should foster the “already developing community of active informed court reporting on the internet through blogs, and tweeting”, support responsible legal journalists and encourage public legal education. Finally,

The great strength of our society is that it is built on the competing voices of free speech. Justice to be truly open must join its voice to the chorus; and must ensure that inaccurate or misleading reporting cannot gain traction.

Lord Neuberger is probably the first member of the senior judiciary to weave together the many strands of justice in the internet age, and has produced a formidable, progressive and, crucially, practical manifesto for open justice in the 21st century. The reforms he suggests may impose costs, but even in an age of austerity this should not automatically rule them out. Because a better informed public is more likely to engage with the justice system  in an enlightened way. And this, as Neuberger rightly says, is fundamental to the rule of law.

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