HMCTS recently launched a document entitled “How you can attend or access courts or tribunals — a guide for members of the public”.
It is not clear whether this is intended to be the “Charter summarising the existing rules that facilitate public access to court and tribunal hearings and information” promised in the Ministry of Justice’s response to the Justice Select Committee’s consultation, Open justice: court reporting in the digital age, and again in the MoJ’s own subsequent Consultation on Open Justice (which closed to submissions 7 September 2023, but four months later there is still no news of any proposed government response). If so, it would sit alongside, and be commensurate with the Reporters’ Charter issued a year earlier, in December 2022.
The HMCTS announcement of this public guide does not suggest that it is that long-promised charter, neither does it suggest any consultation was done in its drafting (as we suggested in our own response to the MOJ consultation). While it pays lip service to the principle of open justice, its wording is too imprecise and its content too insubstantial to constitute something on which a court observer could rely to know and enforce their rights to attend or access particular types of hearing, to take notes, and to obtain information necessary to select, understand and comment on particular cases. In addition, it appears to contain some serious inaccuracies.
As Daniel Cloake explains in this review, reproduced with permission from his Mouse in the Court blog, it falls a long way short of what was needed.
Fine words – but new HMCTS public guidance falls short
“… fine words butter no parsnips” said Lord Justice Toulson in his infamous opening paragraph of a judgment on open justice (R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420; [2013] QB 618 at [1]).
But as HMCTS publish ‘a guide for members of the public’ on ‘How you can attend or access courts or tribunals’ the mouseinthecourt criticises the new guidance as unhelpful, devoid of any tangible detail, and in some cases just plain wrong.
The new guidance published by His Majesty’s Courts and Tribunal Service, dated 29th December 2023, was seemingly published in response to the recent MOJ consultation on Open Justice.
The consultation, in its ‘Call for evidence‘ page explains: “In our response to the JSC’s inquiry into open justice, we committed to publish a charter that summarises the existing rules that facilitate public access to court and tribunal hearings and information. We will publish this charter later in 2023.“
As I said in written submissions any such charter “must, in my opinion, go for consultation first.“ This didn’t.
Whilst the commitment was for a ‘charter‘ (Noun, a formal statement of the rights) what we’ve ended up with is ‘guidance’.
The result is a mess of a document that fails in any meaningful way to be of assistance to non-party observers. It is awash with non-specific statements which are wholly out of place in a legal system which is founded on a system of rules and regulations.
The curse of vagueness
“Most court and tribunal hearings usually take place in public...you may be able to observe a hearing“
‘Most’, ‘usually’ and ‘may’ are not helpful words.
There is no assistance provided to the reader as to the myriad of procedure rules which dictate whether a non-party can or cannot attend a hearing.
For instance, can I attend a mortgage fraud case in the county court?
When this arose the ability of the mouseinthecourt to quote Civil Procedure Rule 39.2 off-the-cuff meant I had a response when I was incorrectly told by security officers “you can attend but with permission from the judge and with the consent of both parties”.
The new guidance would not have been of any assistance in this situation.
How about this possession case at the Stratford Housing Centre with ‘private’ in the hearing type … is this open to the public?
Yes – it is. Private refers to the type of rental agreement not whether the public are restricted although you won’t be able to assert the right to observe by relying on rules in the guidance.
How about attending my colleagues employment tribunal hearing? Or my neighbour who is taking their builder to the small claims court? Or my friend who is self-representing in the Court of Protection?
This guidance which purports to “help you understand your rights” is silent on these most basic of points.
Court lists
“Court lists: Courts are responsible for publishing lists of hearings that are due to take place. These lists are available to all, free of charge, and should normally be available – online or in hard copy in court and tribunal buildings – by the morning the hearing will take place. Court lists can sometimes change, if you are unsure or have any questions please ask a member of court staff.
You can access our public court lists through the GOV.UK website or through our Courts and Tribunals Hearing service.“
This section is materially deficient.
The majority of court lists, and some 600 are published daily, are only available on the built-for-legal-professionals CourtServe website.
The linked-to ‘Courts and Tribunals Hearing Service‘ only contains lists for hearings in Milton Keynes, Oxford, Reading, High Wycombe and Slough. That’s only five court lists.
Selective copy and pasting
In this section we can see where someone has done a bit of copying and pasting from the criminal practice directions to the guidance.
I note that a key piece of information, in 2.2.1, which places a positive obligation on the court to facilitate access, has not been included. Neither is the corresponding entry from the civil procedure rules.
Crim PD 2.2.1: “It is the court’s responsibility to ensure that members of the public can, in so far as possible, have access to courtrooms to observe proceedings.“
CPR 39.2(2A): “The court shall take reasonable steps to ensure that all hearings are of an open and public character, save when a hearing is held in private.“
This should be basic stuff in a guide that purports to “help you understand your rights when attending court or tribunal hearings as a member of the public“, but instead is missing.
Wishful Thinking
“Once inside a court building, staff at reception can direct you to the relevant room and public seating area. If you are party or witness in a hearing, please let a member of court staff know when you arrive.”
This sounds ideal but most courts do not have staffed reception desks — either to assist defendants, witnesses, complainants or indeed non-parties.
Laptops
“Using phones and laptops: Mobile phones and other text-based devices such as laptops can be taken into the court or the tribunal room but cannot be used. Always check with a member of court staff as some local restrictions may apply. If you do take a mobile device in with you, please turn it off or keep it on silent to avoid disrupting proceedings.”
The unevidenced assertion that laptops cannot be used is just wrong and I have no idea where this purported restriction came from.
Paul Magrath, Head of Product Development and Online Content at the Incorporated Council of Law Reporting described this as “Misguidance” on twitter.
Celia Kitzinger, who is a co-director of the Open Justice Court of Protection Project, and a prolific blogger said:
“This restriction has never been applied in any of the COP hearings I’ve observed in court…I’ve always taken in a laptop and typed in my notes and used internet to locate case law.“
“As long as it does not interfere with the proper administration of justice, anyone who attends a court hearing may quietly take notes, on paper or by silent electronic means…“
The new HMCTS guidance has no legal standing so it’s difficult to see why it purports to impose such a restriction or on what basis.
Live-tweeting
“Live text based communication (for example social media)
Unless you are an accredited journalist, or in some cases a legal blogger, you cannot post on social media without permission until the hearing has concluded and subject to any reporting restrictions. In certain cases the court issues ‘reporting restrictions’ preventing anything from being published that would lead to the identification of individuals in the case. This could mean that you cannot identify the person accused or convicted of an offence.“
There’s a few things wrong with this paragraph. Firstly, is the reference to accredited journalists — we don’t have accredited journalists in this country. We have a private limited company which accredits members of the press, including camera operators, truck drivers and sound recordists. (You can read more of my opinions on press cards here).
The possession of a press card is a wholly inadequate method for identifying whether someone should have the right to contemporaneously report court proceedings.
The term ‘legal blogger’ is also strange. We have legal bloggers as a defined group in the family courts, but as family hearings are by default in private it would be odd if this guidance said they could post on social media without making an application to the court.
The practice guidance issued by the then Lord Chief Justice of England and Wales Lord Judge referred to legal commentators, not bloggers, and it may be that a borked copy and paste resulted in this anomaly appearing.
The use of undefined terms leads to confusion. It may well be that this confusion is deliberate as it allows HMCTS to say “well of course we haven’t restricted it to just press card holders…“.
We’re also told that the restrictions apply until the “end of the hearing” which is also wrong (ie there’s nothing stopping someone leaving the court room to tweet or tweeting during a break).
Don’t get me wrong, we do have fruitcakes attending court for the purpose of causing mischief (see: sovereign citizens & others) – but these groups have little interest in producing fair and accurate contemporaneous reports of hearings.
Access to information
“Accessing information about court and tribunal proceedings
As well as observing hearings, you’re entitled to receive information about what’s happening in courts and tribunals whether or not you were a participant in the hearing.”
Here we’re told non-parties are “entitled to receive information about what’s happening“. Later on we’re told we “may have a right to the information, depending on the court’s or tribunal’s rules“:
“Request for information about cases
If you want information or documentation about a hearing you can contact the relevant court or tribunal. You may have a right to the information, depending on the court’s or tribunal’s rules. With other information, and information about criminal cases which ended more than 6 months ago, you must apply to a judge or magistrate via the local court or tribunal and explain the reasons for the request.”
The use of the word ‘may’ rearing its ugly head again.
There are no links to any of the procedure rules which apply, or about how the rules differ between jurisdictions.
An issue I’m experiencing at the moment is that I’m seemingly entitled to access a written judgment in a civil case but not in an insolvency case. How does this guide assist me? It doesn’t.
The guide fails to explain the importance of skeleton arguments in civil hearings and how, as Hale PSC said,
“it is difficult, if not impossible, in many cases, especially complicated civil cases, to know what is going on unless you have access to the written material” meaning “the default position is that the public should be allowed access, not only to the parties’ written submissions and arguments, but also to the documents which have been placed before the court and referred to during the hearing“.
[Source: Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38; [2020] AC 629 (29 July 2019) at [43]+[44])
The guide is completely silent on what is a vital route to access information about hearings.
Conclusion
In a word – disappointed.
The status of this guide is merely to provide advice, it doesn’t purport to replace any of the multiple procedure rules which exist or the voluminous amounts of case law which has come into existence since the 1913 case of Scott v Scott [1913] UKHL 2; [1913] AC 417, HL.
This is regretfully a missed opportunity to publish a definitive useful guide setting out the a considered position that can be used by observers across the entire justice system. It is even more regretful given what I say is the inaccurate and incomplete information contained within.
It’s another document to add to the myriad of information about open justice. Eg see this list of HMCTS Staff Guidance.
The December 2022 “Reporter’s charter” was another missed opportunity. Only two types of court hearings are mentioned – criminal and civil – and again the document is devoid of tangible details and is materially wrong in places. It also purports to assert that the only type of ‘reporter’ in the court system are solely those who produce commercially rewarding content.
What we could have had…
In 2014 a ‘right to report’ council meetings was introduced by Eric Pickles MP “in a boost for local democracy and the independent free press“. It was boasted that the “press” would be defined in the widest terms – “including traditional print media, filming crews, hyper-local journalists and bloggers“.
Mr Pickles said “Local democracy needs local journalists and bloggers to report and scrutinise the work of their council, and increasingly, people read their news via digital media” as he unleashed “a plain English guide of practical information on how the public can exercise their new rights“.
The guide is 33-pages-long.
It’s such a shame we don’t have an equivalent source of information for the courts. Given the publication of this guidance there is unlikely to be the political appetite to revisit the topic of open justice for some time.
Postscript: remote access
In addition to the problems with court listing identified by mouseinthecourt in the post above, we would also highlight the problem for court observers of obtaining remote access links in advance of the relevant hearing. The guide notes that “you’ll need to contact the court or tribunal in advance” but then states that the information about any hearing due to take place may not appear in the court list until “the morning the hearing will take place”. Having to apply for an access link on the morning of the hearing when court staff and the judiciary have many other priorities is not ideal, and little seems to have been done to improve a somewhat ad hoc system rapidly set up during the covid pandemic. For a more detailed analysis of the problem, see Claire Martin’s post on the Open Justice Court of Protection Project blog: Why members of the public don’t ask earlier to observe hearings (and what to do about it)
Finally, members of the Courts and Tribunals Observers’ Network encourage the Judiciary, MOJ and HMCTS to note and respond to these concerns about the new guidance, and to fully and openly consult on a proper Charter for public access to courts and tribunals.
Courts and Tribunals Observers’ Network 
Leave a comment