To understand our rights, we need to know how our justice system works — so, full and fair reporting helps ensure that the citizen’s interests are honoured, says Olivia O’Kane
OPEN justice is a deeply rooted and fundamental principle to all democracies. It is a principle that is subject only to narrow exceptions to ensure public scrutiny of the operation of our justice system and public confidence in its outworking.
As Lord Diplock put it in Attorney General v Leveller Magazine Limited  AC 440 at 450A to C: “If the way that courts behave cannot be hidden from the public ear and eye, this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice. The application of this principle of open justice has two aspects: as respects proceedings in the court itself, it requires that they should be held in open court to which the press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is communicated publicly.”
The first aspect of open justice involves the public having access into the courtroom and the second involves the press communicating what goes on in the courtroom. To ensure that both aspects operate effectively in our modern society, the law must ensure it adapts and flexes to ensure that the public is fully informed.
The reality is that our modern society is fast paced, people have to travel great distances to get to work and many rely on technology to keep them up to date in news and current affairs. As a result, the significance of the media’s function as public watchdog could not be more important. If the public relies on the media to inform them as to how our justice system is operating, then open justice means access to the courts and access to court materials that are presented in open court.
The media have a duty to impart information, which is fair, accurate and contemporaneous when it comes to reporting legal proceedings.
The media have expertise in court reporting, and bring different perspectives than the parties involved in the cases and are well placed to represent the wider public interest in open justice on behalf of the public. A journalist’s right to access court documents referred to in open court enhances the accuracy of court reports and ensures scrutiny of the proceedings.
Just as society has changed pace, so has the legal system and many documents are filed into court electronically to save time, such as written submissions, skeleton arguments or discoverable documents.
Evidence can now be electronic or presented as CCTV footage or text based communications. Crimes are also changing; fraud cases can involve complex e-commerce type facts and crimes can occur from software-based viruses for example.
There is an increasing trend of a modern paper based approach to legal proceedings. Journalists’ access to such documentation is directly relevant to promoting the principle of open justice and in ensuring; the public understands the justice system.
As Lord Scarman noted in Harman v Home office : “when public policy in the administration of justice is considered, public knowledge of the evidence and arguments of the parties is certainly as important as expedition . . . if the price of expedition is to be the silent reading by the judge before or at trial of relevant documents, it is arguable that expedition will not always be consistent with justice being seen to be done”.
To ensure that the media effectively communicate what is going on in our public courts, the importance of access to public court documents cannot be underestimated. There is a serious public interest in the media seeking public court material for journalistic purpose and the presumption should be in favour of disclosure when material has been referred to in open court.
Ensuring access to the media in this way, brings matters of public interest to the public attention and provides a better understanding and a more informed debate about serious issues. The promotion of open justice can also be a deterrent against future crimes or even in bringing forward potential conflicting witnesses or further complaints.
The media play a vital role in holding our institutions to account and in connecting them with the public. It improves communication to the public about the work of the police, the judiciary, and the outworking of the justice system.
In pursuit of this very objective and in ongoing work to better improving open justice, the relevant organs of Northern Ireland’s justice system have been working with the media to launch a final working media protocol which is hoped to be signed off before the end of this year.
Liz Young, PSNI head of corporate communications, is representing the PSNI in our ongoing work in this area of open justice, and she said: “The PSNI recognise the importance of developing a professional relationship with the media and are committed to a policy of openness and transparency. As such we have revised our current media guidelines in line with the national guidelines launched by the College of Policing. The PSNI guidelines, however, do take in to account differences in the operating and regulatory environment in Northern Ireland.
“The guidance has been developed to support all officers and staff, to engage with the media, regardless of rank or seniority and whilst it cannot cover every situation it does provide a framework to assist decision making. The PSNI guidelines are awaiting final sign-off internally and it is expected that they will be launched within the next few weeks.”
The Lord Chief Justice of Northern Ireland, Declan Morgan, stated in Re Carlin  NIQB 144 that any restriction on public access to information must be kept to the absolute minimum. He has issued guidance on the use of live text-based communications in court and the media can now take notes in court on electronic devices and use social media from court. His office circulates a daily notification to journalists of any reporting restriction or anonymity orders made in court on the previous day. It also publishes summaries of key judgments via Twitter and online. A new judicial website is under development and should hopefully be launched before the end of 2017.
These are all steps the Lord Chief Justice has taken to increase the transparency of court proceedings in support of the principle of open justice.
Modern norms and modern society has changed the extent to which public information is circulated and understood, so by bringing the court room into our living rooms by providing detail and accuracy is in the public interest.
Open justice is engaged when there are public court hearings, and if certain documents, photographs or arguments form part of the decision making process for the judge’s decision, then arguably the public should have a right to understand all of the public court material. It not only instills confidence in our institutions but it promotes an appreciation for the work in bringing those guilty of crimes to justice.
Open justice is not an absolute right and there will always be fact sensitive cases that require restrictions on access or even require courts to remain private when it is appropriate.
The deep-seated decrease in members of the public filling the public galleries of our courts might have caused a gaping wound in our free and democratic society. But our media, who bring the courtroom to the people and communicate legal proceedings in a way that the public find interesting and understand, fills the gap.
The law protects our citizens and our communities and it upholds our rights as citizens against abuses by others. All are equal before the law and are entitled without any discrimination to equal protection of the law. To understand our rights and protections, the public must be fully informed about their justice system. The media in accessing public court material is the conduit to open justice and in ensuring that the rule of law is upheld and is being seen to be done.
Olivia O’Kane is a partner and solicitor advocate working with Carson McDowell LLP in Belfast. She regularly represents media organisations providing legal advice on defamation, privacy, data protection, contempt, reporting restrictions, copyright, and a wide variety of media-related legal issues. She contributes to debates on issues of media responsibility and lectures at Queens University, Belfast. She is a founding member of the NIELG, which has been instrumental in changing court reporting in the Northern. She will be speaking at NewsBrands Ireland’s Open Justice conference which takes place in Dublin this evening . For further details, contact NewsBrands Ireland.
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