A Triumph for Open Justice !!

Author: | Our Team

“Justice is open to anyone in the same way as the Ritz Hotel” – Jonathan Sturgess

The principle of open justice — ‘that justice should not only be done, but should manifestly and undoubtedly be seen to be done’ — is a central feature of the administration of justice under the common law. [1]

The notion of open justice lies at the core of the doctrine of Rule of Law. All democracies and justice systems are predicated upon the idea that justice should be delivered openly and within the public’s sphere of knowledge. As a democratic and constitutional necessity, open justice must permeate through all platforms of the judicial hierarchy.

Over time open justice has become more and more important: in judicial decisions; and in Constitutions all around the world. Regardless, the parameters of open justice may yet be further developed.

Last week In a liberalizing judgment, the United Kingdom Supreme Court has broadened the scope of open justice. In what is hailed as a ‘victory for open justice’, the Supreme Court, in Cape Intermediate Holdings Limited v Dring (for and on behalf of Asbestos Victims Support Groups Forum UK) [2] , has pronounced that a non-litigant party can rightfully obtain gain access to court documents being used in the litigation process.

Although Statements of case/petitions and Court orders/judgments are commonly accessible to the public, Lady Hale ruled that open justice transcends this basic right to information and extends to documents which have been placed before the court and relied upon during the litigation. It is immaterial whether the document has been read out or not and every document brought to the court’s attention would be encompassed by the right of access to open justice.

The premise upon which the open justice is necessitated is simple:

• 42. The principal purposes of the open justice principle are two-fold and there may well be others. The first is to enable public scrutiny of the way in which courts decide cases - to hold the judges to account for the decisions they make and to enable the public to have confidence that they are doing their job properly….
• 43. But the second goes beyond the policing of individual courts and judges. It is to enable the public to understand how the justice system works and why decisions are taken. For this they have to be in a position to understand the issues and the evidence adduced in support of the parties’ cases.

Of course, practical considerations may differ, and the Court was wary in preserving the secrecy of documents which, if disclosed, would pose a security risk or jeopardize confidentiality of certain documents and the information contained therein. The discretion to lean on either side is not unfettered and Courts must heed the particularities of the case. The Court noted that:

• 46… There may be very good reasons for denying access. The most obvious ones are national security, the protection of the interests of children or mentally disabled adults, the protection of privacy interests more generally, and the protection of trade secrets and commercial confidentiality.

It is worth noting that the dispute in this instance concerned the interpretation of the Civil Procedure Rules (CPR r. 5.4). The regime of Civil Litigation may vary from legal system to legal system. But the necessity of open justice remains paramount. It permeates through Rule of Law itself, and all of law’s subjects must be allowed to benefit from the safeguard of open justice.

Open justice is imperative. To suggest otherwise would equate to condoning tyrannical norms. The words of Jeremy Bentham, who very pithily summarized the notion of open justice, epitomize the importance of open justice:

• “Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial”. [3]

References:

1 JASON BOSLAND AND JONATHAN GILL, THE PRINCIPLE OF OPEN JUSTICE AND THE JUDICIAL DUTY TO GIVE PUBLIC REASONS.

2 [2019] UKSC 38

3 cited by Lord Shaw of Dunfermline in the House of Lords in Scott v Scott [1913] AC 417, the leading case on open justice, at p 477

Link for the Supreme Court Judgment: Click here...

Link for Press Summary: Click here...

Link for a Case Comment: Click here...