Speech by Mr Justice Cobb: 'Justice must be seen to be done'
Conkerton Memorial Lecture
Liverpool 10 October 2024
'Justice must be seen to be done'
One Hundred Years sinceR v Sussex Justices [1924]
Transparency in the Courts: Awareness and Fairness: Confidence and Confidentiality:
Public interest in the Justice System in the Twenty First Century.
Introduction
1. I wish to thank the Liverpool Law Society's Education & Charities Committee for arranging this evening's lecture. I feel honoured to have been asked to deliver my thoughts on a topic of legal interest, following in the steps of many lawyers and eminent judges far more distinguished than ever I could aspire to be [i].
2. As many of you know, I began my legal education in this city at the University; I arrived here in September 1981, following the summer which was made infamous by the riots which ravaged parts of this inner city. Liverpool suffered extensive damage to its buildings, but not to its spirit, and by the time of my graduation, three years later, obvious signs of regeneration were apparent. In the decades since then I have seen, on my periodic visits, much evidence of this continuing. The serious public disorder in Toxteth in 1981 provided a sobering context for my early studies in the law, in particular in the fields of crime and civil rights. I was able to see, to some extent first-hand, at least a little of the impacts of social deprivation, social inequality and racial inequality on the communities of this city; I could see the consequences of all of this on law and order, and on the country's justice system at the time. A re-surfacing of civil unrest and public disorder in the city a few months ago reminded me very much of this earlier period; I shall return to these more recent events shortly.
3. This city rightly boasts two important and successful law schools; at the original red brick university now in its fourteenth decade, and at John Moores. At both institutions John & Mary Conkerton added to the rich provision of legal education. I, of course, did not have the privilege of knowing them nor of benefiting from their learning, but I dare say that they would have strongly associated themselves with the theme of this evening's lecture given its centrality in any discussion about the Rule of Law.
4. The phrase 'Justice must be seen to be done' was crafted by Lord Hewart and featured in his judgment in the case ofR v Sussex Justicesex parte McCarthy, decided one hundred years ago. Rather like the cases which concerned the ineffective Carbolic Smoke Ball as a cure for flu [ii], and the decomposing snail in the bottle of ginger beer [iii],Sussex Justicesis a case of little factual consequence; it concerned a £10 fine for dangerous driving. But, like those other claims to which I have just made mention, initiated (respectively) by the disgruntled Louisa Carlill and May Donoghue,Sussex Justiceshas acquired considerable standing in the law; its point of significance, as I shall consider with you in a moment, related to the due administration of justice, and specifically the appearance of improper influence upon a bench of magistrates after they had retired to consider their decision.
5. Over the years, the phrase (i.e. 'justice must be seen to be done') has come to embody much more than alleged procedural impropriety, judicial bias or improper influence, or theappearanceof bias. The phrase now encompasses, and perhaps is most strongly associated with, openness and transparency in the due administration of justice, tying in directly with the citizen's right to a 'fair and public hearing' which is enshrined in Article 6 of the European Convention on Human Rights.
6. In this evening's lecture I will focus not only on how the phrase is now widely understood, and why it is important, but on the collective and individual responsibility of the judiciary to give the fullest effect to it.
The Sussex Justices case
7. Let me remind you briefly what this case was all about. In the summer of 1923, Mr McCarthy was riding his motorcycle through Sussex when he collided with another motorcycle and sidecar; this second motorcycle was driven by a Mr Whitworth, with his poor wife precariously seated in the sidecar. The collision resulted in Mr McCarthy's prosecution for dangerous driving which was listed before the Sussex Justices. Unknown to Mr McCarthy and his solicitor at the Magistrates Court, the deputy clerk to the justices on the day of the trial, Mr E.H. Langham [iv], was a partner of the firm of solicitors (Langham, Son & Douglas) which was instructed by Mr and Mrs Whitworth in the civil claim against Mr McCarthy arising out of the collision that had given rise to the prosecution. At the conclusion of the evidence and submissions, Mr Langham, the deputy clerk, left the courtroom to retire with the justices; the justices considered their verdict and then returned to convict Mr McCarthy. On learning later of the deputy clerk's employment with the law firm, Mr McCarthy applied to have the conviction quashed. The justices swore affidavits stating that they had reached their decision to convict the defendant without consulting Mr Langham.
8. The Lord Chief Justice of the day, Lord Hewart – as it happens, a former Northern Circuiteer when he had been at the Bar – delivered the lead judgment which included these famous words...
"It is said, and, no doubt, truly, that when that gentleman [Mr Langham] retired in the usual way with the justices, taking with him the notes of the evidence in case the justices might desire to consult him, the justices came to a conclusion without consulting him, and that he scrupulously abstained from referring to the case in any way. But while that is so, a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done".
Adding later:
"Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice".
9. Lord Hewart's phrase, stripped of its adverbial adornments, has been cited probably more often than any other in legal discourse over the last 100 years. Indeed with the assistance of digital search software, I can see very easily that theSussex Justicescase was relied even within the last few weeks [v]in judgments delivered in the long-runningGreensilllitigation [vi]in the Insolvency and Companies Court.
10. And what is the reason for its durability? It is surely because procedural propriety in the administration of justice is sacred; it is the bedrock of the judicial oath which has been taken by judges for centuries [vii]and requires them to try cases without "fear or favour, affection or ill-will", a phrase which reinforces the impartiality and independence of the judiciary, and the obligation on judges to conduct themselves and their business free from any interference.
11. It is, I hope, obvious that if a judge has anactualinterest in the outcome of a case (financial or otherwise) they cannot hear it, and should recuse themselves. Justice would not,couldnot, in those circumstances be seen to be done. Moreover, if the judge's conduct or behaviour gives rise to a suspicion – objectively assessed by the "fair-minded and informed observer" – that they are not, or would not be, impartial in hearing a particular case, then again the judge must disqualify themselves from hearing that case [viii]. For justice to be done and to be seen to be done this rule has to be scrupulously observed; as Lord Justice Mummery observed inMorrison:
"... the paramount concern of the legal system is to administer justice, which must be, and must be seen by the litigants and fair-minded members of the public to be, fair and impartial. Anything less is not worth having" [ix].
This reinforces what Lord Hope of Craighead had earlier said in thePinochet (No 2) [x]case, one of the most memorable recusal cases in modern times:
"Where a judge is performing a judicial duty, he must not only bring to the discharge of that duty an unbiased and impartial mind. He must be seen to be impartial."
12. While no further illustration is required, I trust that you will indulge one further reference (given its current notoriety, and the quality of the judgment dealing with the issue) and that is toBates v The Post Office [xi], in which the Post Office unsuccessfully sought the recusal of Mr Justice Fraser (as he then was) part-way through his trial on the issues concerning the Horizon software; the case was presented on the basis that in an earlier judgment (Judgment no.3 on 'common issues') he had made findings critical of the Post Office. The application was robustly refused. The rest is history.
13. Individual judges must be aware of their own potential biases, they must prioritise impartiality; if a judge feels that they cannot be objective, stepping aside is the appropriate course of action. Thus, the responsibility for ensuring that actual or apparent bias does not contaminate the administration of justice, and that justice is done and seen to be done, is primarily a matter for the judge, who should take the initiative. This important point was made by the Court of Appeal inLocabail [xii] (probably the leading case in this area):
"...judges routinely take care to disqualify themselves, in advance of any hearing, in any case where a personal interest could be thought to arise".
And in doing so, the judge will have considered whether:
"... on examination of all the relevant circumstances the court concludes that there was a real danger (or possibility) of bias" [xiii].
14. This is the first responsibility on the judiciary to ensure that 'justice is seen to be done'.
Wider application of the principle
15. The maxim 'justice must be seen to be done' is now used much more widely than merely to describe adherence to procedural propriety; perhaps its dominant meaning has, in current usage, come to be the importance of transparency and openness in the administration of justice.
16. It is a general principle of our constitutional law, and in the upholding of the Rule of Law, that justice is administered by the courts in public, and is therefore open to public scrutiny:
"In a democracy, where the exercise of public authority depends on the consent of the people governed, the answer must lie in the openness of the courts to public scrutiny" [xiv].
17. The 1913 House of Lords appeal inScott v Scott [xv]is widely and rightly regarded as the starting point for any discussion on this particular topic, and is notable for the trenchant manner in which the Appellate Committee condemned the private hearing at first instance, and in which it identified only a narrow range of exceptions to the open justice principle. Scott v Scott, as you probably all know, was a nullity case which had been heard 'in camera' by Sir William McCardie at first instance, a course which troubled greatly all the members of the Appellate Committee. In his speech in the appeal, Lord Shaw referred to "publicity in the administration of justice" as "one of the surest guarantees of our liberties"; he described the private nature of the nullity hearing in the court below as a form of tyranny, akin to "the genius and practice of despotism". Strong words indeed.
18. Perhaps coincidentally, perhaps not, on the other side of the Atlantic, in the same year as the appeal inScott v Scott, Louis Brandeis (the American lawyer who went on to serve as an associate justice on the Supreme Court of the United States) contributed to this discussion with his famous phrase [xvi]: "sunlight is said to be the best of disinfectants", a phrase which (as I shall illustrate shortly) has found echoes in judicial and academic work on openness and transparency in the courts here ever since.
19. When Lord Reed considered the principle of openness inA v British Broadcasting Corporationin 2014 [xvii] he followedScott v Scottin identifying the main exceptions to the general rule of openness [xviii]:
a)Wardship and children proceedings;
b)Court of Protection proceedings under what is now the Mental Capacity Act 2005;
c)Where publicity might destroy the subject matter of the case (e.g. a commercial secret), and
d) Matters of national security.
20. Even then, in 2014, steps were being taken to change the regime in respect of the first two of these excepted categories. Going back a little in time, I remember well attending the launch of the then Labour Government's initiative to open up family court proceedings in 2006, which they entitledConfidence and Confidentiality [xix]– reflecting the balance of theconfidencewhich the public must have in family courts, and theconfidentialityrequired to safeguard the privacy of children and family members. Did no-one spot the irony of holding the launch event for this initiative in the Cabinet War Rooms in Central London, possibly one of the least accessible and most secret of all venues in the country? During my own career at the Bar and on the Bench there has been a growing momentum to achieve greater levels of openness and transparency in the Family Court, in the High Court exercising its wardship jurisdiction, and in the Court of Protection, galvanised from time to time by specific media attention and public interest. The upshot is that proceedings concerning children in the Family Court, and the incapacitous in the Court of Protection (i.e., the first two of those three categories) are now considerably more transparent than they were even 10 years ago.
21. The drive for greater transparency in the Family Court and Court of Protection was accelerated by Sir James Munby when, as President of both courts, he published his Practice Guidance documents (in 2014) in each of those jurisdictions. His initiative in these and aligned respects drove further developments in transparency over the next few years, including (but by no means limited to) the wider publication of judgments (as to which I shall speak more later) and the grant of permission for legal bloggers to report on matters in the Family Court (2018). His successor as President, Sir Andrew McFarlane, launched a full scale consultation in 2020 on transparency, bearing again the label 'Confidence and Confidentiality'.
22. Building on the experiences (and the successes) in the Court of Protection, which since 2016 had by default now sat in public [xx], and the results of the consultation to which I have referred, a Reporting Pilot was launched in the Family Court in 2023, operating initially in three Family Courts in the country but now extended, since early 2024, to approximately one-half of the Family Courts including that here in Liverpool. Under the pilot, accredited journalists and legal bloggers are enabled to report on what they see and hear in court under the 'transparency principle', all achieved with the support and encouragement of the Family Court judiciary, who on a case-by-case basis make 'Transparency Orders', which set out the rules of what can and cannot be reported.
23. These are significant and positive developments. Reporting proceedings in the Family Courts and the Court of Protection by journalists, and/or by bloggers on social media, offers an opportunity to improve the public's understanding of the work of the Family Courts which for many years suffered (and perhaps in some quarter continues to suffer although to a lesser extent) the canard of the 'Secret Court'. The report of the pilot shows that it has been largely successful [xxi], and the main concern around confidentiality (potential jigsaw identification of the relevant children and/or families) has not in fact come to pass.
Why is it important that justice is seen to be done?
24. I touched a moment ago on the importance of openness. Let me expand on that, for openness and transparency within the justice system is not just important, it is fundamental to what we do.
25. First, we must keep the publicinformedabout what we do day-by-day. Public attitudes towards the judiciary and the justice system — whether positive or negative — may well stem from ignorance of how the judges and the justice system works. There is surely no better way to inform the public of what we do than toshowthem what we do. I fear that many citizens grow up in relative ignorance about what the justice system involves, and what it does; for example, the differences between a civil court and a criminal court, the role of juries, the status of magistrates, are I fear little understood. To promote greater understanding of justice, the public should be enabled to discover in any given case what the issues are, what the evidence is, and how the decision is reached [xxii]. Citizens and businesses alike need to know that they will be able to enforce their rights if they need to do so; they need to know that if they fail to meet their obligations, there is likely to be a remedy against them [xxiii].
26. Secondly, openness and transparency hold the judges toaccountfor the decisions they make, and should vest in all members of society confidence that judges are doing their job properly; we are, after all, judges in public service –for the people, and fulfilling our judicial roles day by day in their name. Accountability has at least two components: accountability in judicial decision-making, and accountability in relation to judicial conduct. As for accountability in decision-making, I borrow from the judgment of Lord Judge, who as the then Lord Chief Justice, said inR (Binyan Mohammed) v Secretary of State for Foreign and Commonwealth Affairs [xxiv]:
"The public must be able to enter any court to see that justice is being done in that court, by a tribunal conscientiously doing its best to do justice according to law. For that reason, every judge sitting in judgment is on trial. So it should be, and any exceptions to the principle must be closely limited".
This phrase "every judge sitting in judgment is on trial" is unmistakeably borrowed from the eighteenth century jurist, Jeremy Bentham, who it will be remembered proclaimed that: "publicity is the very soul of justice. . . . It keeps the judge himself, while trying, under trial" [xxv]. Bentham famously further pronounced that:
"In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice".
The 'darkness of secrecy' in that quotation naturally brings back to mind Brandeis' reference to the disinfectant of sunlight; indeed, just as Lord Judge may well have been inspired by Bentham, so Lord Toulson echoed Brandeis inKennedy v The Charity Commission [xxvi]:
"Letting in the light is the best way of keeping those responsible for exercising the judicial power of the state up to the mark and for maintaining public confidence".
27. Openness of the justice system has inevitably and rightly facilitated a developing accountability for judicialconduct. Since 2006 [xxvii], there has been, and is, a fully functioning statute-based judicial disciplinary system, the Judicial Conduct Investigations Office (JCIO) [xxviii], which, although based in the Judicial Office, operates independently of it. The work of the JCIO is underpinned by an expectation on all sides that allegations of judicial misconduct are dealt with efficiently, fairly and proportionately, in order to maintain and enhance public confidence in the independence, impartiality, integrity [xxix]and good standing of the judiciary [xxx]. The work of the JCIO is itself reviewed by the independent Judicial Appointments and Conduct Ombudsman (JACO). While there are some who call for greater transparency of its processes, the open publication of findings of judicial misconduct by the JCIO [xxxi], on its public website, serves, I hope at least to some extent, to reinforce to the citizens we serve that for those very few judges whose conduct falls below the standard which is expected of them, they are appropriately sanctioned. This is all a far cry from the arrangements which pre-dated the Constitutional Reform Act 2005, when complaints about judicial office holders would be dealt with (not on any statutory footing) by anonymous civil servants within the Ministry of Justice.
28. Thirdly, open justice is important to instil and as appropriate reinforce publicconfidencein the justice system. For that system to operate effectively, it needs to create relationships of confidence with the society it serves; confidence is imperilled where processes are opaque, or worse still, unseen. It is vital in our democracy that victims of crime or civil wrongs feel confident to come forward, that witnesses will contribute freely to the administration of justice, that those who are found to have wronged others, or offended against the law, can accept the inherent fairness of the process. We judges, key players in the justice system, need to demonstrate, individually and collectively, that we can and do offer protection, adjustments and accommodations where necessary to meet the vulnerabilities of those who seek access to the courts in whatever form. If parties and witnesses are deterred from coming to justice through a lack of confidence in its processes, the proper and effective administration of justice will be defeated.
29. Fourth and finally, open justice underlines and reinforces theRule of Law. Greater transparency of our processes surely supports and strengthens two important messages: (1) that no person or body is above the law; and (2) that the judiciary operates independently of the executive and the legislature, making non-political judgments and decisions. The independence of the judiciary from government has been powerfully demonstrated in recent times by many judgments issued the courts; most notable among them have been the Supreme Court's decision in 2019, that the prorogation of Parliament was unlawful [xxxii], and in 2023 [xxxiii]its decision that the Secretary of State's plan to transport asylum seekers to Rwanda was unlawful. The public's interest in these moments of legal history is reflected by the half-a-million or more YouTube clicks on the recording of the announcement of the 2019 decision [xxxiv]– an interest unlikely to have been entirely sparked by viewers' fascination with the President's spider brooch.
30. On a serious note, there is I suspect still much to be done to underline for the public the constitutional distinctions between the three arms of state in the UK; the executive, the legislature, and the judiciary. Etched in judicial memories is the 'Enemies of the People' headline in the Daily Mail in November 2016 referring to the three senior judges who had ruled that the UK Government would require the consent of Parliament to give notice of Brexit – perhaps one of the most egregious lapses of responsible reporting of the justice system in recent times through its failure to acknowledge its independence. The President of the Supreme Court, Lord Reed, in an interview for the Times last weekend (5.10.24) referenced again this headline, and emphasised the importance of the public's understanding of the distinct roles of the court and government thus: "When we hear cases... we are not trying to decide what social policy ought to be. That is not our function. What we are trying to do... is to interpret a particular statute or provision. ... For the court to have to say sometimes that the government (of whatever complexion) has overstepped the mark, is perfectly normal".
What are the judiciary doing to achieve greater levels of transparency?
31. Having, I hope, established why openness is fundamental to the administration of justice in our democratic society, let me turn to the ways in which the judiciary is working to develop the transparency of its processes.
32. First, broadcasting. The Supreme Court has been live-streaming its hearings for nearly ten years. For over five years, most cases listed in the Court of Appeal (Civil Division) are also live-streamed on the judiciary's YouTube channel. Over the last two years, live broadcasting of sentencing remarks in the Crown Court in some significant cases has enabled the public to observe criminal justice being dispensed, in real (or almost real [xxxv]) time. I believe that broadcasting goes a very long way to helping the public better to understand the complex decisions which judges make; in relation to Crown Court sentencing, I hope that seeing judges actually deliver the sentences reassures the public that when defendants are found guilty of crimes, their punishments are carefully considered, determined by reference to current sentencing guidelines, and adapted to the particular circumstances of the individual defendant and their crime.
33. It is, I suggest, extremely powerful to bring justice into people's homes and their lives through the televising of these dramatic moments in the criminal court, and I venture to suggest that by putting this material graphically onto people's TV and laptop screens, it may well in itself provide one of the most powerful deterrents against unlawful behaviour. In late-July/early-August 2024 here in Liverpool, the Recorder, HHJ Menary KC, was televised passing sentence on those who had been involved in what he described as the "deplorable mass public disorder" [xxxvi]which had taken place in Southport and Liverpool only a few days' earlier. That this public delivery of justice was achieved so quickly after the events in question meant that the public could (consciously or unconsciously) make the 'cause and effect' link between crime and punishment so easily. The Judge emphasised in his sentencing remarks that "every decent member of the community affected by these events will have been appalled, horrified, and deeply disturbed by what has taken place in their neighbourhoods"; doubtless his words will have resonated with the public both locally and nationally, I hope offering reassurance to citizens in the communities in which these acts of senseless violence had occurred that the justice system understood their pain, and could swiftly bring the perpetrators to justice.
34. Should the scope of broadcasting be extended? The Lady Chief Justice has spoken recently of the potential for the "careful expansion of broadcasting hearings" [xxxvii]– "careful" so as to consider the effect that any extension of the current broadcasting arrangements may have on parties to proceedings, and witnesses. More extensive broadcasting cannot be allowed adversely to affect the administration of justice, nor should it serve to erode public trust, or diminish the public's confidence and willingness to come to court.
35. Secondly, Judgments. There is now much more prolific publishing of judgments in all Divisions of the High Court, and at lower levels of the court and in tribunals, thereby providing explanation and account of the reasoning for judicial decisions. This is particularly important in the Family Division which sits in many cases in private (subject to the transparency arrangements discussed earlier). But even in that jurisdiction it is worth noting how things have changed over 20 years: in the first six months of 2004, the Family Division judges published altogether 21 judgments on Bailii; in the same six months of 2024, the figure was 121. Some judgments are now not even anonymised given the drive towards greater transparency, although the decision to publish and/or anonymise in each case will always engage "the familiar balancing of the competing advantages of privacy (Article 8) and freedom of expression (Article 10) as applied to the individual circumstances" [xxxviii].
36. Publication of judgments in clear and accessible language allows the public and the media to know how a decision has been reached, and gives judges the opportunity to explain the challenges of decision-making. Indulge me reference to two recent examples in the Family Division. Earlier this year a family judge authorised the withdrawal of life-sustaining treatment for a then 3-year old boy, born with severe disabilities and life-limiting health conditions including a significant brain malformation; judgments explaining the decision to withdraw treatment were delivered in January 2024 [xxxix]and April 2024 [xl]. It was the expectation of all the medical witnesses who gave evidence, including an expert instructed by [the child's] parents, and of course the Judge, that the child would die shortly thereafter. Last month, following extubation, and after a wholly unpredicted and remarkable turnaround of the child's physical health, the court's decision was reversed and the authorisations were withdrawn [xli]. A judgment explaining this reversal of arrangements was published. This suite of published judgments (three in all) should help the public and the media to see: (i) the immense care which is brought by judges to bear in making these exquisitely difficult decisions, (ii) the willingness of the court to respond to changing circumstances, and perhaps most pertinently for tonight's discussion (iii) the transparency of the decision-making.
37. Secondly, I reference the recent decisions of HHJ Parker, the Designated Family Judge here in Liverpool, in proceedings involving the deprivation of liberty of young people; specifically, he drew attention to the scarcity and the 'breathtaking' cost of the provision of specialist care for damaged youngsters including one who was being criminally and sexually exploited [xlii]. In a carefully and powerfully wordedex temporejudgment, Judge Parker specifically acknowledged the crucial distinction between his role and the government's role, before adding helpfully, plainly and publicly in his judgment: "It is a matter for the government and the Houses of Parliament to decide policy and to enact legislation. ... What I can do ... is to set out in this judgment how it feels and how it looks on the front line in the family justice system".
38. Thirdly, aligned with my comments above about the importance of the published judgment, is the increasing practice of the senior courts, and the invariable practice of the Supreme Court, to publish media releases alongside judgments of importance. Accessible and concise explanation of sometimes complex litigation increases the transparency of the decision, and is widely welcomed by the media and by the public alike.
39. Fourthly, I would like to reference the Lady Chief Justice's initiative for achieving consistency in transparency across the justice system by the creation of a dedicated judicial-led Transparency and Open Justice Board. The aim of the Board is to examine and modernise the judiciary's approach to open justice, not least to ensure that we take proper account of wider societal changes, as well as those being effected by the courts. The new Board will "... lead and coordinate the promotion of transparency and open justice across the Courts and Tribunals in England & Wales" and will set objectives in that regard, focussing on timely and effective access in terms of listing, documents and public hearings. The evolving transparency pilot in the Family Court will doubtless help significantly in informing the work of the newly created Board. Assurances have I know been given that this Board will engage with the public and interested parties to make sure that these objectives properly reflect what should be delivered by a modern justice system.
40. Finally, Publicity and Public relations. For the last twenty years or so, notably since the Constitutional Reform Act 2005 [xliii], the Lord Chief Justices, and most recently the Lady Chief Justice, have held annual press conferences; for many years before and since, our senior leadership judges have given evidence to Parliamentary select committees. It is vital, in my view, that our most senior leadership judiciary should engage effectively with the media and with Parliament in order to ensure that the judicial viewpoint is accurately represented and that its profile is maintained. Not only can this help to increase public understanding of judges and the justice system, it can also help the judiciary to highlight areas where it may well wish to engage constructively with the executive. Public statements by the senior judiciary – promulgated also by the Judicial Communications team, through social and other media – have played a valuable part in putting the judiciary's concerns about the support it receives (or does not receive) in the public eye.
Impediments to openness?
41. There is an argument that the greatest current threat to transparency and openness within the justice system lies in our unthinking lapses in providing timely and effective access to the courts by reason of our incoherent court lists, limited access to documents and patchy judicial observance of the expectation to hold hearings in public. This is particularly problematic in what is sometimes described as 'soft-copy' hearings – where the evidence and arguments are presented in electronic or digital documents in civil and family cases and in the tribunals – particularly for hearings which are then conducted by remote video-link.
42. The welcome development of IT for the justice system, and its increasing use by both judges and litigants, provides many benefits in expediating the administration of justice. But digital justice can impact adversely the publicness of the court process: the circulation of written material in advance of a trial, particularly electronically, denies the citizen in the public gallery the chance to see or hear for themselves what the case is about, and what is at stake. It used to be commonplace for documents to be read out in court. No more. Recognising the threat of reduced openness to civil court process, practical steps are now being taken by the Civil Procedure Rule committee and the Civil Executive Team to ensure hereafter greater press and public access to proceedings in the County Court [xliv]most recently – and specifically – with their published guide to 'Open Justice in the County Court' [xlv]. This is a welcome development.
43. Of course, and paradoxically, while soft-copy remote access justice can limit openness in the way I have just described, remote video-link hearings and digital filing has the potential to offer fargreaterlevels of openness; the digisphere can render justice more (rather than less) accessible. Thus, the member of public can, somewhat more than theoretically even now, sit in their kitchen in Kettering and watch remotely a boundary dispute trial in Bristol and can, or should be able to, access the documents at the press of a button; a journalist can sit in Fleet Street (except I don't think that any of them do any more) and observe or monitor multiple hearings in a single day. Non-participants of proceedings (such as the media and the public) now have a statutory right to such access [xlvi], but I am sure you will agree that more needs to be done to make online public attendance at hearings easier in order to maximise the transparency of civil processes.
"Warts 'n' all"
44. Portrait painting in the seventeenth century was the indulgence of the wealthy and powerful, used to convey their social standing and influence; one subject, Oliver Cromwell, (pertinently, it may be thought, given his apparent commitment to the rule of law, in spite of his dubious policies of enforcement), nonetheless apparently urged his portrait painter [xlvii]to paint him with 'pimples, warts and all'.
45. Greater transparency of the justice system inevitably means that the press and the public see it, as Cromwell suggested, with 'pimples, warts 'n' all'. In a recent speech, the Lady Chief Justice gave this a more contemporary gloss in acknowledging that there can be "no shying away from press discussion of the good, the bad, and the ugly where the justice system is concerned. Its democratic accountability depends upon it" (homage duly paid to the iconic spaghetti western of that name) [xlviii].
46. I do not dwell on the 'pimples and warts' here this evening; they are visible now, and will continue to be visible in the future – likely, indeed, in sharper relief: among the 'pimples and warts' you may well now find are: a continuing low level of true diversity within the judiciary [xlix]; the dismal disrepair of some of the court estate; the backlogs of cases in crime and family in particular, coupled with the rising demand on the courts; the lack of judicial and other capacity; symptoms of long-term underinvestment in the justice system and its partners more widely. These cannot and should not be hidden from view: our democratic accountability depends upon them being seen, acknowledged, understood and discussed.
Conclusion
47. While many years have passed since the doubtful conviction of Mr McCarthy and the plight of poor Mr. and Mrs. Whitworth in theSussex Justicescase, the central message from Lord Hewart's judgment holds firm. Indeed, as I hope I have shown this evening, the phrase 'justice must be seen to be done' has grown in scope, stature and significance. Our collective and individual judicial responsibility is, I suggest, greater than ever to ensure openness and transparency of our work, in our court rooms day-by-day, and beyond the court rooms across a wider horizon, to build and maintain true engagement between the justice system and the society that it serves, thatweas judges serve. What is clear is that the constitutional principle of justice being done, and beingseento be done, in its many forms, remains the most significant constituent in ensuring the protection and operation of the Rule of Law in our twenty-first century society.
Mr Justice Cobb
10.10.24
[i]Lord Scarman initiated this lecture series in 1982
[ii] Carlill v Carbolic Smoke Ball Company [1893] 1 QB 256
[iii] Donoghue v Stevenson [1932] AC 562
[iv]Brother of the Mr F.G. Langham who was the usual clerk to the justices also a partner of the same firm.
[v] Secretary of State for Business and Trade v Greensill [2024] EWHC 1803 (Ch) (28 June 2024) (bailii.org)at para.11.
[vi]For example, see para.30 of the judgment of ICC (Insolvency and Companies Court) Judge Mullen disposing of a disclosure application within the extensive litigation following the collapse of Greensill Capital and the disqualification of Alexander Greensill:BCC Trade Credit Pty Limited, Tokio Marine Management Australasia Pty Limited, Tokio Marine & Nichido Fire Insurance Company Limited v The Secretary of State for Business and Trade, Mr Alexander David Greensill [2024] EWHC 2039 (Ch) (18 July 2024).
[vii]Traceable to a statute enacted during the reign of Edward III in 1346
[viii]See Lord Hope of Craighead inPorter v Magill [2002] 2 AC 357 at 103: "The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased".
[ix] Morrison v AWG Group Ltd [2006] EWCA Civ 6 at para.29; an appeal against the decision of Evans-Lombe J.
[x] R v Bow Street Magistrate, ex p Pinochet (No. 2) [1999] 2 WLR 272 , 290
[xi]Per Fraser J in 'Judgment No.4': [2019] EWHC 871 (QB)
[xii] Locabail(UK) Ltd v Bayfield Properties Ltd and Locabail (UK) Ltd v Waldorf Investment Corp [1999] EWCA Civ 3004 at [16]
[xiii] Locabailat [16]
[xiv]A v British Broadcasting Corporation [2014] UKSC 25 ; [2015] AC 588at [23]
[xv]Scott v Scott [1913] UKHL 2, [1913] AC 417
[xvi]In a 1913 Harper's Weekly article
[xvii] A v British Broadcasting Corporation [2014] UKSC 25 ; [2015] AC 588
[xviii] A v British Broadcasting Corporation at [29]
[xix]12 October 2006
[xx] Subject to 'Transparency Orders' limiting the reporting of identifying features of the case
[xxi] Natcen Report on the Transparency Implementation Group's Family Court Reporting Pilot (judiciary.uk)(July 2024)
[xxii]See Baroness Hale inDring v Cape and Intermediate Holdings Ltd [2019] UKSC 38 at [43].
[xxiii] R (on the application of UNISON) v. Lord Chancellor [2017] UKSC 51 at [72] (Lord Reed).
[xxiv] R (Binyan Mohammed) v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 65
[xxv]Draught For The Organization Of Judicial Establishments, Compared With That Of The National Assembly, With A Commentary On The Same (1790)
[xxvi] Kennedy v The Charity Commission [2014] UKSC 20 at [110]
[xxvii]Constitutional Reform Act 2005
[xxviii]As defined in regulation 2 and regulation 4(2) of the Judicial Discipline (Prescribed Procedures) Regulations 2023
[xxix]A distillation of the six fundamental values set out in the Bangalore Principles of Judicial Conduct.
[xxx] JCIOAnnual Report22-23 (judicialconduct.gov.uk)
[xxxi] Disciplinary Statements · Customer Self-Service (judicialconduct.gov.uk)
[xxxii] R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) Cherry and others (Respondents) v Advocate General for Scotland (Appellant) (Scotland) [2019] UKSC 41: the specific issue was whether "... the advice given by the Prime Minister to Her Majesty the Queen on 27th or 28th August 2019 that Parliament should be prorogued from a date between 9th and 12th September until 14th October was lawful. It arises in circumstances which have never arisen before and are unlikely ever to arise again. It is a "one off"." ( [1] of the judgment).
[xxxiii] AAA (Syria) & Ors, R (on the application of) v Secretary of State for the Home Department [2023] UKSC 42 (15 November 2023) (bailii.org)
[xxxiv]Approximately 500,000 views on YouTube at the time of writing
[xxxv]There is usually a built in delay of seconds/minutes.
[xxxvi]SeeR -v- O'Malley and another – Sentencing Remarks (judiciary.uk)
[xxxvii] Keynote speech by the Lady Chief Justice at the Society of Editors 25th anniversary conference – Courts and Tribunals Judiciary
[xxxviii]Peter Jackson LJ inT, Re (Children: Publication of Judgment) [2024] EWCA Civ 697 (21 June 2024) (bailii.org)at [25]
[xxxix] NR, Re (A Child: Withholding CPR) [2024] EWHC 61 (Fam) (17 January 2024) (bailii.org)
[xl] NR (A Child: Withdrawal of Life Sustaining Treatment), Re [2024] EWHC 910 (Fam) (23 April 2024) (bailii.org)
[xli] NR (A Child: Ceilings of Treatment after Survival of Withdrawal of Life Sustaining Treatment), Re [2024] EWHC 2400 (Fam) (18 September 2024) (bailii.org)
[xlii] The Local Authority -v- A, and The Local Authority -v- B – Courts and Tribunals Judiciary, esp. at [13] and [28]: "...time and time again, children and young people wrapped up in the pernicious activities of organised criminals, who seek to exploit children for their own selfish financial gain and are prepared to expose those children to a risk of the most grave of outcomes, catastrophic injury or even death".
[xliii]In 2005, Lord Phillips was the first LCJ to hold a press conference.
[xliv]Rule 5.4C CPR 1998
[xlv] Open Justice in the County Court (judiciary.uk)
[xlvi]Police, Crime, Sentencing and Courts Act 2022, implemented by the Remote Observation and Recording (Courts and Tribunals) Regulations 2022, and supported by Practice Guidance issued by the LCJ and SPT.
[xlvii]Sir Peter Lely
[xlviii] Keynote speech by the Lady Chief Justice at the Society of Editors 25th anniversary conference – Courts and Tribunals Judiciary
[xlix] Diversity of the judiciary: Legal professions, new appointments and current post-holders – 2022 Statistics – GOV.UK (www.gov.uk)