0 &HQWUHIRU/DZ-XVWLFH DQG-RXUQDOLVP &/-- -867,&(:,'(23(1 :25.,1*3$3(56 (GLWRU-XGLWK7RZQHQG $XWKRUV(PLO\$OOERQ'DYLG%DQLVDU+HDWKHU%URRNH3URIHVVRU,DQ&UDP0LNH'RGG 'U'DYLG*ROGEHUJ1LFN+ROPHV'U/DZUHQFH0F1DPDUD/RUG1HXEHUJHU:LOOLDP3HUULQ *HRIIUH\5REHUWVRQ4&/XF\6HULHV+XJK7RPOLQVRQ4&3URIHVVRU+RZDUG7XPEHU $GDP:DJQHU Centre for Law, Justice and Journalism (CLJJ) The Centre for Law, Justice and Journalism is the first major interdisciplinary centre in the UK to develop a broad, yet focused, interface between law, justice and journalism in society. The centre aims to harness and maximise opportunities for research collaboration, knowledge transfer and teaching to become an international centre of excellence and brings together expertise in the disciplines of Law, Criminology and Journalism at City University London. CLJJ Working Papers: ‘Justice Wide Open’ is the third set of working papers in a series from the Centre for Law Justice and Journalism at City University London. This publication by leading lawyers, academics and journalists is part of the CLJJ’s new ‘Open Justice in the Digital Era’ project, launched at an event at City University London on 29 February 2012. Leadership and Expertise: The Centre for Law, Justice and Journalism (CLJJ) is directed by three of City University London’s leading academics, as well as being supported by a number of specialists from the university. Professor Howard Tumber, CLJJ Director (Journalism) is Professor of Journalism and Communication within the Graduate School of Journalism, City University London, and has published widely in the field of the sociology of news and journalism. His recent research is concerned with the role of journalists and the reporting of international conflict throughout the world and across media channels. He is managing director of the CLJJ. Professor Lorna Woods, CLJJ Director (Law) is associate Dean of Research at The City Law School, City University London, and has research interests in broadcasting law and policy, regulation of the media and the related issues of freedom of expression and privacy. She is also known for her work in EU Law as well as the protection of human rights in Europe. Dr Chris Greer, CLJJ Director (Justice) has published widely in the areas of media criminology, victimology, and punishment and social control. His current research examines the shifting relations between the press, the criminal justice system, and news consumers at a time of media proliferation and market destabilisation. He is founding and current co-editor of the international journal, Crime, Media, Culture. Contents 3 JUSTICE WIDE OPEN These working papers mark the launch of the Centre of Law, Justice and Journalism’s new initiative, ‘Open Justice in the Digital Era’, which aims to make recommendations for the way judicial information and legal data are communicated in the 21st century Contents Foreword Professor Howard Tumber 5 Introduction Judith Townend 7 The open justice principle A Great Tradition of Open Justice, Geoffrey Robertson QC 9 Open Justice Unbound? Lord Neuberger 13 Justice in a Cold Climate, Dr David Goldberg 29 The flow of legal knowledge Towards Legal Transparency, Hugh Tomlinson QC 35 The Free Legal Info Landscape, Emily Allbon 39 Accessible Law, Nick Holmes 49 Catching Up with the Transparency Revolution, David Banisar 57 Court reporting & the media Secret Justice, Heather Brooke 59 Open and Shut Justice, Mike Dodd 71 A Corrective to Bad Journalism, Adam Wagner 79 Court in the Net, William Perrin 89 Open justice: an academic perspective Twitt(er)ing Open Justice? Professor Ian Cram 93 Judicial Perspectives on Open Justice and Security, Dr Lawrence McNamara 101 ‘Secrecy’ in the Court of Protection, Lucy Series 111 Appendix ‘Justice Wide Open’ Speaker List, 29 February 2012 119 Resources / Contact 121 Howard Tumber 5 FOREWORD Professor Howard Tumber welcomes a much needed public dialogue on open justice in the digital era The justice system cannot remain alien to the rapid flows of information and collective sharing of resources through social media and other forms of new technology. The justice system must use digital technologies not to violate privacy rights, freedom of expression and other civil liberties, but to safeguard them. The publication of legal data is a requirement that cannot be deferred if citizens are to participate in democratic societies that are based upon public scrutiny and transparency of institutional practices. When the ethos of national security reigns over individual liberties and social justice, the need to research and advocate for an open justice system becomes a matter of urgency. ‘Justice Wide Open’ will hopefully contribute to this challenging enterprise. As the third publication in the Centre for Law Justice and Journalism working paper series, it marks the launch of our new research project: Open Justice in the Digital Era. The project aims to research into the best ways to make legal and judicial data more accessible by using new technologies, and to disseminate the information among policy-makers, lawyers, judges, and the general public. This edited collection compiles papers presented at the ‘Justice Wide Open’ conference on 29 February 2012 by leading lawyers, academics and journalists who share a similar concern: how to make judicial information more accessible in order to develop and monitor an open justice jury system. The event was organised by Judith Townend who has done an excellent job not only in organising the event but in editing this collection of working papers. Her own research on legal restraints on the interaction between media organisations and defamation and privacy laws has certainly informed the organisation of this important event and this much needed collective publication. These papers comprise a call for freedom of access to legal information and transparency of court proceedings. We need open courts which welcome the public and the press and inform citizens of how judges are enacting the liberal value of justice. Court reporting needs to take full advantage of new technologies and perform a scrutiny function engaging members of the public. How else can both justice and judges be judged? Openness lies at the very heart of justice. This edited collection therefore will be of great interest to those concerned with how best to serve the public interest, the role of journalism in reporting court cases, free access to legal information, the existing threats to the rule of law, and the ethics of the judicial information system. 6 Justice Wide Open Collaborative and interdisciplinary projects like ‘Justice Wide Open’ are the first step towards a much needed public dialogue on open justice. It is in this sense that we greatly welcome it. Professor Howard Tumber CLJJ Director (Journalism) Howard Tumber is Professor of Journalism and Communication within the Graduate School of Journalism, City University London and has published widely in the field of the sociology of news and journalism. Judith Townend 7 INTRODUCTION Judith Townend explains the origins and aims of the Centre for Law, Justice and Journalism’s new open justice project ‘Justice must be seen to be done’ is the familiar dictum, summarising the principle of open courts, developed in English law since the mid-17th century. Despite this long- established tradition for open justice, the English courts have failed to fully utilise online technology for the dissemination of legal knowledge and communication of the courts – as yet. This new publication is a call to action and debate. The UK Supreme Court, which opened its doors to the public in 2009, leads the way in sharing court proceedings via the internet and television, but other courts in England and Wales lag behind. Publication of legal information has grown up in a piecemeal fashion in the digital era – part privatised, with few central guidelines. The so-called ‘super injunction’ furore in 2010-11 was partly fuelled by a lack of public data, something the Master of the Rolls is now seeking to remedy with new guidelines for its collection and publication. The Centre for Law, Justice and Journalism’s ‘Open Justice in the Digital Era’ project was born out of numerous frustrated conversations with lawyers, journalists, academics, computer programmers and bloggers about accessing the courts in the 21st century. For many of them, ‘open justice’ is not their primary research or legal focus but absolutely intrinsic to their daily work and the wider public interest. The issues are extensive and diverse: the recommendations of the government’s ‘secret justice’ green paper, which would see more cases behind closed doors; the decline in local and national court reporting as a result of cuts in journalism; the courts’ barriers to entry due to ill-informed staff; and the difficulties in obtaining free legal information. The project launched with the ‘Justice Wide Open’ conference on 29 February 2012, at which journalists, lawyers and academics came together to ask how judicial information and courts data could be made more easily accessible and considered the legal and ethical implications of an increasingly open and digitised approach. The speakers1 explored the history and academic context of open justice, as well as the realities of modern court reporting. Additionally, we invited several other leading figures in the field to also contribute working papers to this subsequent publication. This collection of working papers will be made available online and also distributed in print to members of government, civil service, lawyers, journalists and academics. We hope it encourages the Ministry of Justice and Her Majesty’s Courts 1 Listed in Appendix, pg 119 8 Justice Wide Open and Tribunals Service to consider an increasingly open and free approach to the diffusion of legal knowledge in the 21st century. In the first section on the tradition and context of open justice, Geoffrey Robertson QC, our keynote speaker at the event, sets out the history of the principle and argues that the government’s Justice and Security Green Paper’s recommendations are simply not be compatible.