Justice Wide Open – the collision between uncodified open justice and the law of data protection and copyright #oj_city

Judith Townend organised a fascinating conference at City University on open justice and modern media (programme pdf) .  It was great to see some real heavy hitters like Geoffery Robertson QC and Hugh Tomlinson QC speaking up for open courts and open access to information about what goes on there.

I have had an interest in this area for several years and delivered a presentation based on the Transpareny Charter that i first proposed on this blog.  I was delighted that the Guardian legal editor and Hugh Tomlinson both came out in support of the concept, subject to detail.  The slides up here shortly.  There’s a little bit of twittering on #oj_city (tip to organisers don’t put an _ in your hashtag).


Points that interested me:

Geoffrey Robertson QC illustrated that the principles of ‘open justice’ are largely uncodified in law

one speaker observed that courts are like gentlemens’ clubs (this was either Heather Brooke or Adam Wagner) and had always been that way – UPDATE – Adam Wagner has blogged the event)

there were endless examples of bizarre behaviour in court thwarting transparency

George Brock (Professor of Journalism at City University) observed to me afterwards that court reporting outside of the major metropolis and ‘sexy’ cases is practically dead and can no longer be relied upon as a means of telling communities what goes on in their courts – UPDATE George Brock has blogged the event

it’s 2012 with a pervasive internet but the courts (with tiny exceptions) are still managing information as if it was 1912

there is almost no one at an events like this who speaks up for victims nor the beneficiaries of justice, communities that courts serve.

My overarching concern is that the British failure to codify its practice of open justice will lead to a steady erosion of that principle by data protection and copyright law – neither of which are well understood in courts and were not designed with open justice in mind.

Bizarrely, there are almost no allowances in data protection law nor copyright law for open justice – as DP and copyright are codified in law they outweigh considerations of uncodified open justice.  Open justice is too valuable a thing to lose and as a society we should put that above concerns of data protection and copyright.  To maintain confidence in justice, communities need to understand what is going on in their local courts.   There are many issues to tease out and we need to have a debate to do that.

For instance the indelibility of offences on the internet – before I got involved in this policy area I asked a prison reform charity and a reform-minded prison governor whether they felt that this could be a substantive obstacle in rehabilitation. They couldn’t see what the issue was – we have open courts and there were far more weighty issues in rehabilitation.

I am also struck that the interests of the press and the public are best served by levelling the playing field in access to court information.  There aren’t enough reporters to go around, we all benefit if information is published online for all, subject to protection of the vulnerable and prevention of contempt.  This could be a huge area for hyperlocal web sites and the coming local tv if they could follow local courts online.

Only Ministers can resolve this but I don’t see much interest in doing so – except when there are major crises such as the riots and name and shame drives policy.

This was a very good event on a fascinating and important area.

[edit history – i did a little tidying up of the post shortly after publishing]

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William Perrin

Founder of Talk About Local, Trustee of the Indigo Trust, member of UK Government transparency panels, former Policy Advisor to UK Prime Minister, former Cabinet Office senior civil servant.Open data do-er, Kings Cross London blogger. Loves countryside. Two kids, not enough sleep.
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