The courts are open but justice is a closed book

The courts are open but justice is a closed book

Heather Brooke

We are denied even the barest details of what goes on in supposedly public legal proceedings

Last week I had an encounter with open justice. I was attending the information tribunal hearing of a friend who is trying to investigate allegations that the Liverpool Women’s NHS Foundation Trust had a history of silencing whistleblowing staff by offering them public money to sign “gagging” contracts.

I’ve been to the tribunal before when I was fighting for the release of MPs’ expenses and that’s when I discovered the only record of proceedings of this so-called “open” people’s court (the tribunals are meant to be a less formal, more accessible form of justice) were my scribbled notes. When it came time to write a script for a dramatised TV version of the hearing, my notes and those of other reporters were all we had to go on. I’d asked at the time if I could tape-record the hearing and was told “no”.

This time I decided to press harder. The rhetoric of the English legal system is that justice must be seen to be done. So why are the public forbidden — under threat of jail — from recording a verbatim account of proceedings? Not only that, rules are so opaque and obscure that court reporters struggle to report cases with any degree of accuracy or depth. And that’s when there is a reporter in court at all: there used to be 25 reporters covering national courts for the Press Association; by 2009 there were four.

Anisa Dhanji, the judge, said she was concerned with the hearing being recorded. “Usually such requests are made in advance so the tribunal can maintain the necessary degree of control over the transcript.”

“Control” is exactly what a court shouldn’t be exerting. Once it is decided that it is open, there should be no restriction on how that open hearing is processed. She went on to say that she’d allow me to record now but I’d have to wait for a future ruling before I could “use” the recording.

The next day in court the judge announced she’d made her ruling. “Please turn your tape recorder off,” she said, looking sternly at me over her glasses. I did so.

“I have made my ruling. As you will no doubt be aware it is a contempt of court under Section 9 to make any kind of recording for any purpose including with a view to publication or transcription. It is for the court alone to decide if a recording takes place and the court must have control of the recording. To do otherwise is fraught with difficulty. Firstly there is a risk of manipulation. Secondly it puts at a disadvantage other parties. Any recording you have made thus far must be deleted and cannot be used in any way including transcription.”

At least that’s the gist of what she said because here’s the final irony: when I asked if I could have a copy of her ruling she said there was no written record of it. To close a court, effectively, from public scrutiny in a ruling of which there is no record strikes me as something straight out of Kafka.

The simple answer is to allow tape recorders for all: no party is disadvantaged and an “official” recording is there for checking. This is how it works in other countries. But that is to ignore the root objection of the courts: that they are losing control of how court proceedings are presented to the public.

The courts’ refusal to allow people to tape-record benefits a few private transcription companies whom the court approves in cosy deals. These people have exclusive rights to tape- record or listen to official recordings and then transcribe them. The cost to the individual of hiring them is about£150-£250 per hour of typing.

Many trials in the upper courts are now officially recorded, yet these records are not accessible to the public. All High Court hearings have been digitally recorded since February 2010. When I spoke to the court’s governance officer he told me there were no plans to make these accessible directly to the public. Why not?

I could go on. You might like to know whether the builder you’re going to give your keys to has any convictions for theft or if the company you’re about to do business with has a record for fraud. Tough. This information is not a click of a button away. Instead you’ll have to know the details of the case before you can call up any records — even though it’s the existence of cases that you’re trying to find in the first place. It’s Catch-22. If you do know some of the details you then have to battle petty officials across a number of court offices all for the simple purpose of accessing information that is supposedly public.

There are three main things that would make the courts useful to the public: (a) knowing by name who is on trial (the court list); (b) why (the particulars of claim); and (c) the result (the verdict, sentence or settlement). Yet trying to get any, let alone all, of these is fraught with difficulty.

We have a justice system paid for by the common people but whose proceedings are available only to the rich, powerful or privileged. Let’s not pretend that this is justice for all.

Heather Brooke is the author of The Silent State (Heinemann)