The common law principle of open justice (that court proceedings should be open to the public) dates back to the days of the Magna Carta. The reputation of the English justice system is underpinned by the openness and candour of the English courts. Open courts promote public confidence in our justice system, in addition to providing an opportunity for scrutiny and debate. It is important for the public to see justice being done.

However, arguably this cannot be the case across every division in our court system. The manner in which the family courts deal with the competing interests of open justice and protecting personal and often sensitive information has recently been raised by Sir James Mumby, President of the Family Division. In this blog, we look at the way the principle of open justice has been applied in the family and criminal branches of the courts.

Open justice in the family courts

The very nature of that which is heard in the family courts would imbalance the concept of fairness if proceedings were heard in open court. Many family court hearings involve commercially sensitive financial information relating to a party’s finances or the names of children in cases where there are allegations of sexual, physical and emotional abuse. However, such privacy has recently extended to family court hearings where a prison sentence is at stake and the arguments for privacy in these cases are much less convincing. 

The use of these “secret” hearings in the family court has been strongly criticised. John Hemming MP recently criticised a High Court Judge who imprisoned a mother of ten for failing to inform social workers as to the whereabouts of her children. This hearing was not listed on any court list and was described as an example of ‘secret justice’.

Sir James Mumby (President of the Family Division) has responded to such criticism by saying that the public must be notified of hearings more effectively and efficiently where there is a chance a person could be sent to prison and that the media should be notified of short-notice hearings via an email to the Press Association by officials.

Last year’s published guidance “Committal for Contempt of Court – Practice Guidance” states:

“When the application arises out of proceedings relating to a child, the Family Division is vested with a discretionary power to hear a committal application in private. This discretion should be exercised only in exceptional cases where it is necessary in the interests of justice.

The fact that the committal application is being made in … the Family Division in proceedings relating to a child does not of itself justify the application being heard in private. Moreover the fact that the hearing of the committal application may involve the disclosure of material which ought not to be published does not of itself justify hearing the application in private if such publication can be restrained by an appropriate order."

Arguably, this guidance has prompted a culture change in the family courts toward much more openness and transparency. In fact, where a person has committed a contempt of court the court must state in public the name of that person, the nature of the contempt of court and the punishment imposed.

Open justice in the criminal courts

Criminal trials are almost always held in open court but recent attempts to have a terrorism trial held in private have demonstrated there are circumstances where the CPS may argue that a secret hearing is necessary.  Occasions where this occurs should be exceptional. We now know the identities of the men in question in this trial to be Erol Incedal and Mounir Rarmoul-Bohhadjar, but initially, there was a ban on the media reporting the very fact that the trial was taking place.  The Court relented to some extent and then allowed the defendants to be named, but only as AB and CD. Following an appeal, the identities of the men were revealed.

The Court of Appeal permitted only a group of “ten accredited reporters” to witness a small portion of the secret trial. In addition to this, around 40 hours of the trial was held in private with no journalistic presence. Roughly a third of the trial was held in open court. However, the trial collapsed in mid-November when the jury was discharged after four days of deliberations, and will now be rerun in the New Year. Due to the reporting restrictions, we do not know why the jury was discharged.

There has been much criticism of the decision to hold so much of this trial in private, Baroness Helena Kennedy QC saying that it was a "disgraceful departure from recognised trial standards and an affront to the rule of law". When Lord Justice Gross gave his reasoning in the Court of Appeal he noted that he had “grave concerns” about the effect of anonymising defendants and holding trials in secret. He said that "Open justice is both a fundamental principle of the common law and a means of ensuring public confidence in our legal system……….exceptions are rare and must be justified on the facts. Any such exceptions must be necessary and proportionate. No more than the minimum departure from open justice will be countenanced.” Therefore, even the judges themselves were reticent to allow a secret trial.

This is not the first attempt to hear a criminal trial in secret. In 2005 and 2008, two terrorism trials were held in partial secret in order to obscure the part played by the intelligence services in Pakistan. In 2009, a Chinese dissident by the name of Wang Yam was convicted of the murder of an elderly man named Allan Chappelow. At the time of the trial, the Home Secretary (then Jacqui Smith) requested an anonymity order be imposed in relation to the entire defence case, and the judge agreed this. The defendant made a subsequent application to the European Court of Human Rights (ECtHR) to lift the order, saying it prejudiced his right to a fair trial. The order was dismissed by the trial judge, who said there were “very good reasons” for the proceedings being held in private. The only further explanation given by the judge was that the reasons concerned "national security and the protection of the identity of a witness or other person". On 31st October 2014, judgment was handed down at the Administrative Court rejecting Yam’s challenge to the refusal to allow him to place secret parts of the trial before the ECtHR. An application is now apparently underway to apply for permission to appeal directly to the Supreme Court.

After the jury was discharged in the secret terrorism trial of Erol Incedal and Mounir Rarmoul-Bohhadjar, Lord Thomas, the Lord Chief Justice said that defendants should “never ever” again be brought to trial without being identified. This very much echoes the remarks of Sir James Mumby in the family courts, in the circumstance where cases are heard which may result in someone being convicted of an offence and receiving a custodial sentence.

Conclusion

Sir James Mumby’s remarks that the public must be notified of hearings where there is a chance that a person could be sent to prison should be welcomed. The family courts of course walk a tricky line of protecting vulnerable peoples’ interests and protecting extremely personal and often potentially commercially sensitive information. However, in matters where there is the potential of a custodial sentence, it is essential that open justice be maintained, to avoid arguments that the defendant was tried in secret and did not receive a fair trial.