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Open Justice and the English Criminal Process

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Open Justice and the English Criminal Process Open Justice and the English Criminal Process Matthew Simpson, LLB, LLM. Thesis submitted to the University of Nottingham for the degree of Doctor of Philosophy October 2007 Abstract This thesis examines the concept of ‘open justice’ as it applies to the English criminal process. The conventional understanding of open justice requires merely that trial proceedings are open to the public and that those who attend are free to report to others what they have witnessed. This thesis seeks to demonstrate that the notion of open justice need not be so confined. The oversight of the criminal process provided by the courts, independent administrative bodies and the public, and the open manner in which such oversight is conducted, may be viewed as a more expansive conception of open justice. Such openness is argued to be required by the values of accountability, effective performance, rights protection, democracy and public confidence. It will be demonstrated that the openness flowing from the oversight of the English criminal process provided by the courts, independent administrative bodies and the public, has developed considerably in recent years. There may though be scope for the development of further openness. Where appropriate, proposals designed to achieve such enhanced openness will be advanced. Acknowledgments Many thanks to my supervisors Professor Paul Roberts and Professor Dirk Van Zyl Smit for all their advice and support. Thanks also to my examiners Dr Roger Leng and Professor Diane Birch for their helpful comments. A special mention for a number of my housemates including, in particular, David Drew; my final year office companion Konstantina Kalogeropoulou; my sister Ruth Simpson; and the various football teams I’ve been a part of during my time at the University of Nottingham, in particular, Law and Disorder, Dynamo PGSA and the Chilwell Olympians. To my parents Jean and John Tarrant Simpson, thank you. Contents Chapter 1: The concept of open justice 1 1.1 The values of open justice 2 1.1.1 Accountability 2 1.1.2 Effective Performance 3 1.1.3 Rights protection 4 1.1.4 Democracy 5 1.1.5 Confidence 7 1.2 The structure of this work 8 Chapter 2: The Police 10 2.1 Judicial Scrutiny 10 2.1.1 Judicial Review 10 2.1.2 The Trial Process 14 2.1.3 Criminal prosecution 20 2.1.4 Inquests 24 2.1.5 Civil Actions 27 2.2 Administrative Scrutiny 31 2.2.1 Ad hoc oversight 31 2.2.2 Her Majesty’s Inspectorate of Constabulary 35 2.2.3 The Independent Police Complaints Commission 39 2.3 Public Scrutiny 44 2.3.1 The publication of police reports and community 44 engagement efforts 2.3.2 The Home Secretary and Parliament 49 2.3.3 Police Authorities 51 2.3.4 Independent Custody Visiting 54 2.3.5 The Media 59 2.4 Conclusion: The Openness of the Police 61 Chapter 3: The Crown Prosecution Service 70 3.1 Judicial Scrutiny 70 3.1.1 Judicial review of a decision not to prosecute 71 3.1.2 Judicial scrutiny within the trial process 77 3.2 Administrative Scrutiny 83 3.2.1 Ad hoc scrutiny 84 3.2.2 Her Majesty’s Crown Prosecution Service Inspectorate 87 3.2.3 A CPS Ombudsman? 93 3.3 Public Scrutiny 98 3.3.1 Making information available and consultation efforts 98 3.3.2 The Attorney General 107 3.3.3 Parliament 114 3.3.4 The Media 119 3.4 Conclusion: The Openness of the Crown Prosecution Service 121 Chapter 4: The Trial Courts 128 4.1 Judicial Scrutiny – The Appeals Process 128 4.2 Administrative Scrutiny 139 4.2.1 Ad hoc scrutiny 140 4.2.2 The Criminal Cases Review Commission 140 4.2.3 Her Majesty’s Inspectorate of Court Administration 151 4.3 Public Scrutiny 158 4.3.1 The publication of reports, public access and 158 Community Courts 4.3.2 The Jury 165 4.3.3 Lay Observers 180 4.3.4 The Media 184 4.4 Conclusion: The Openness of the trial courts 192 Chapter 5: The Prison System 200 5.1 Judicial Scrutiny 200 5.1.1 Criminal Prosecution 201 5.1.2 Civil Actions 204 5.1.3 Inquests 206 5.1.4 Judicial Review 208 5.1.5 The European Court of Human Rights 210 5.2 Administrative scrutiny 213 5.2.1 Ad hoc scrutiny 213 5.2.2 Her Majesty’s Inspectorate of Prisons 217 5.2.3 The Prisons and Probation Ombudsman 220 5.3 Public Scrutiny 227 5.3.1 The publication of reports and performance ratings 227 5.3.2 Parliament 231 5.3.3 Independent Monitoring Boards 233 5.3.4 The Media 235 5.4 Conclusion: The openness of the prison system 238 Chapter 6: Open Justice and the English Criminal Process 247 6.1 The values of openness and the criminal process 248 6.1.1 Accountability 248 6.1.2 Effective performance 251 6.1.3 Rights protection 254 6.1.4 Democracy 257 6.1.5 Public Confidence 259 6.2 Recent moves towards greater openness 260 6.3 More openness required? 263 6.4 Prospects for moving towards greater openness in criminal 274 proceedings 6.5 Towards a more expansive conception of open justice 278 Bibliography 280 Key Abbreviations AG Attorney General CCRC Criminal Cases Review Commission CPS Crown Prosecution Service CPT Committee for the Prevention of Torture DPP Director of Public Prosecutions HMIC Her Majesty’s Inspectorate of Constabulary HMCPSI Her Majesty’s Crown Prosecution Service Inspectorate HMICA Her Majesty’s Inspectorate of Court Administration HMIP Her Majesty’s Inspectorate of Prisons HMCS Her Majesty’s Courts Service ICVs Independent Custody Visitors IPCC Independent Police Complaints Commission IMBs Independent Monitoring Boards LOs Lay Observers PPO Prisons and Probation Ombudsman Chapter 1 The concept of open justice The concept of open justice is normally understood as requiring simply that the courts conduct their proceedings in public.1 It is time to revisit this limited conception. This thesis examines the oversight of the criminal process provided by the courts, independent administrative bodies and the public. It will be argued that the values of accountability, effective performance, rights protection, democracy and public confidence, require that the criminal process is open to such oversight and that the oversight is conducted openly. This ‘openness’ may be viewed as a new, more expansive concept of open justice. The development of this wider concept of open justice will be examined in relation to four areas of the criminal process, the police, the Crown Prosecution Service, the trial courts and the prison system. Whilst particular aspects of judicial, administrative and public scrutiny of these four areas have been examined in the past, they have tended to be considered in isolation. There is no comprehensive and contemporary examination of the oversight of each area provided by the courts, administrative bodies and the public. It will be argued that developments in recent years have moved us towards a more expansive concept of open justice. There may, however, be scope for the development 1 In the words of Lord Diplock in Attorney General v Leveller Magazine Ltd [1979] AC 440 (HL) at 449- 450, ‘As a general rule the English system of administering justice does require that it be done in public: Scott v. Scott [1913] A.C 417 … 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. As respects the publication to a wider public of fair and accurate reports of proceedings that have taken place in court the principle requires that nothing should be done to discourage this’. See generally, J Jaconelli, Open Justice, A critique of the public trial (Oxford University Press, Oxford 2002). 1 of further openness. Where it appears that there is room for greater fulfilment of the values of accountability, effective performance, rights protection, democracy and confidence, proposals designed to achieve this will be advanced. The values of accountability, effective performance, rights protection, democracy and confidence have been selected because, as will be detailed in this chapter, they are of fundamental importance to the criminal process. It is also the case that, as will be clear by the conclusion of this thesis, it is these values which have underpinned and motivated the move towards a more expansive concept of open justice which, it will be demonstrated, has occurred in recent years. The police, the Crown Prosecution Service, the trial courts and the Prison System have been selected as the areas upon which this thesis will focus because they are arguably the most prominent aspects of the criminal process. They have also been selected because in these four areas, there has been a clear move towards a more expansive concept of open justice. That is not to say that there have not been similar developments in other areas such as, for example, the probation system. The concept of open justice examined in this thesis, and the values underpinning it, likely has wider applicability. Such areas may provide fertile ground for future study. Given, however, constraints of space, only the four selected areas are examined in this thesis. 1.1 The values of open justice 1.1.1 Accountability 2 It is essential that those responsible for administering the criminal justice system are held to account in the sense that poor or improper performance is penalised.
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