More than a century ago Lord Halsbury, a former lord chancellor, stated that every court in the land was open to every subject of the king. In an ideal world that would still be the case, but since 1911 those who use Britain’s courts have found many reasons to make them less open. British justice, on balance, is the poorer for it.
As the workload of the family courts division has expanded, so has the number of children with a legitimate claim on anonymity. The scourge of terrorism has dragged the security services into the pursuit of justice, creating a need, the government insists, for secret courts. But the growth of secret justice is also being driven by the internet. Online justice can help the courts to cut costs but at a price in openness, and the web can publicise sensitive information at the speed of light. Secrecy is also sought too often by the police and others, concerned above all to protect their reputations.
What has not changed in the past century is the case for open justice. This says simply that justice must not only be done but must be seen to be done in order to sustain public faith in the rule of law. Lord Thomas of Cwmgiedd, lord chief justice, told MPs last year that even in the Court of Protection, which hears cases involving the vulnerable, “there should be very, very few occasions where a hearing . . . has to be in private”. Lord Reed, the Supreme Court justice, has stated that since most people get their information on court proceedings through the media “it follows that the principle of open justice is inextricably linked to the freedom of the media” to report on them.
That freedom is under threat. In one case before the courts, lawyers for a divorcee seeking a bigger payout from her former husband will argue before appeal judges this week that her right to privacy exceeds the right to “unfettered freedom of expression”. In another, the Supreme Court has agreed to hear a case brought by a man seeking to remain anonymous after being arrested but never charged in connection with an investigation into child grooming and prostitution.
There is clearly an important balance to be struck between privacy and openness. The Times, which is a party to the Supreme Court case, has an interest in openness, but so does the public. In the absence of a written constitutional defence of free speech and freedom of expression, these freedoms are defined by the accretion of legal precedents. This being so, secrecy must be the exception, not the rule. Britain cannot afford to drift towards a situation in which the reverse is true.
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The divorcee’s case before the appeal judges may not seem a strong one for advocates of open justice. Her lawyers claim it hinges on financial information that is “quintessentially private business”. If so, she has the option of paying to use a private judge, but those who use the courts should assume their hearings will be public. If the perception takes hold that expensive legal representation can buy anonymity, faith in the vital principle that all are equal under the law is quickly eroded.
On a more practical level, the risk is that an ever-wider range of litigants and defendants seek anonymity in an ever-wider variety of cases, with a chilling effect on the media as the potential cost of defending its right to report on court cases rises. Children have a right to anonymity in most types of cases. Adults should remember that open justice exists not just to punish the guilty but to protect the innocent.