10/06/12 - Accessing documents in English courts.
Britain's Guardian newspaper has succeeded in its legal bid to gain access to court documents in extradition proceedings. It sought to access documents used to justify the extradition of two Britons, Jeffrey Tesler and Wojciech Chodan, to the US.
In the case of Guardian News and Media Ltd, R (on the application of) v City of Westminster Magistrates’ Court  EWCA Civ 420, the Master of the Rolls, Hooper LJ and Toulson LJ granted appeal against an Administrative court decision dismissing the Guardian’s claim for judicial review following a District Judge’s refusal of access to certain documents.
Openness is often resisted by British courts; but, after being presented with cases from Canada, the US, New Zealand and South Africa, the Court of Appeal applied the common law to follow in their footsteps: “Although I disagree with the reasoning of the courts below, I recognise that this decision breaks new ground in the application of the principle of open justice, although not, as I believe, in relation to the nature of the principle itself.” - Toulson LJ .
According to Brid Jordan of Reynolds Porter Chamberlain LLP, the firm of lawyers which acted for the Guardian: “The Court of Appeal has ruled that where documents have been placed before a judge and referred to in the course of open proceedings, the default position should be that access should be permitted on the open justice principle. Where access is sought for a proper journalistic purpose the case for allowing it will be particularly strong.”
Counsel for the campaigning group Article 19, David Banisar explained that the Centre for Law, Justice and Journalism's (CLJJ) recent event in London on open justice, “…revealed that there were many legal and practical limits to open justice. Few local newspapers now cover local courts and even the larger national media only attend a few cases; transcripts remain the commercial property of the court reporters and video and audio recording of cases is forbidden for reasons that are hard to understand; non-media such as community micro-sites have little access to anything.” He pointed out that: “…the growing practice of judges and the lawyers moving to a more document-focused case system and referring to documents that are only partially read out triggered the need to change the rules.”
The Guardian sought to obtain the following documents; but the US government opposed their release:
1. The opening notes and skeleton arguments submitted on behalf of the US Government and the skeleton arguments submitted on behalf of the defendants.
2. Affidavits submitted by William Stuckwisch, the US senior trial attorney responsible for the conduct of the prosecutions.
3. Other affidavits or witness statements submitted by prosecutors for the US Department of Justice.
4. Correspondence between the Serious Fraud Office (SFO) and the US Department of Justice discussing which agency should prosecute the case.
5. Correspondence between solicitors acting for MW Kellogg and counsel for Mr Tesler on the subject of whether MW Kellogg was being prosecuted by the SFO and an accompanying witness statement from the solicitor acting for Mr Tesler, which had been handed up to the judge at the hearing on 28 January 2010.
Oddly, in the US, court documents such as these can easily be accessed via the Public Access to Court Electronic Records system.
31/10/13 - TV cameras have recorded proceedings in one of the highest courts in England and Wales for the first time. See: http://www.bbc.co.uk/news/uk-24744684 . However, with the exception of the UK Supreme Court, filming is still banned in courts under the Criminal Justice Act 1925.
June, 2014 - The Judicial Office in London stymies OpenTrial's request for information under the Freedom of Information Act 2000.
In accordance with the recommendations of Transparency International in its 2007 report on Judicial Systems, our rather innocuous request was as follows:
“In respect of Judge Hugh F. J. Howard of the First-tier Tribunal in London, Judge Mark of the Upper Tribunal in London, and all judges who adjudicate for the HM Courts and Tribunals Service, Social Security & Child Support in Norwich (including Judge J. A. Rosser and Judge I. M. Baggott), please provide details of the following (with dates where appropriate):
“2. Legal training,
“3. Positions of employment throughout career– both in the law and outside the law,
“4. Any periods of unemployment, indicating whether state benefits were claimed,
“5. Any convictions or cautions for legal offences,
“6. Any disciplinary measures taken against the individual by HM Courts and Tribunals Service,
“7. Religious and political memberships and affiliations,
“8. Positions on company or charity boards,
“9. Any other public office appointments,
“10. Salaries earned throughout employment by the HM Courts and Tribunals Service and the bodies which preceded it,
“11. Current net worth.
In response to this request, Joanne Peel, head of human resources for the Judiciary, wrote:
"In respect of point[s 5 and] 6, I can neither confirm nor deny whether the Ministry of Justice (MoJ) holds the information that you have requested.
"We are not obliged to confirm or deny whether we hold the information you have requested as if held, this would relate to information relating to personal information. Section 40(5) of the Act provides that there is no duty to confirm or deny whether we hold the information.
"The fact that section 40(5) of the Act has been cited, should not be taken as an indication that the information you requested is or is not held by the department. The terms of this exemption in the Freedom of Information Act mean that we do not have to consider whether or not it would be in the public interest for us to reveal whether or not the information is held.
"In respect of part 10 I confirm that the department holds this information, however it is exempt from disclosure.
"We are not obliged, under section 40(2) of the Act, to provide information that is the personal information of another person if releasing would contravene any of the provisions in the Data Protection Act 1998 (DPA). In this instance we believe that the release of this information would contravene the first data protection principle and therefore section 40 (2) is engaged.
"The terms of this exemption in the Freedom of Information Act mean that we do not have to consider whether or not it would be in the public interest for you to have the information.
"Regarding all the other points you raised [questions 1, 2, 3, 4, 7, 8, 9 and 11], I can confirm that the department does not hold this information. It may help if I clarify that the information being requested is not held by MoJ because there is no legal or business requirement for MoJ to do so."
In July, 2014, Geoff Hiden, Human Resources Policy & Projects Advisor for the Judiciary, wrote the following in response to this Freedom of Information Act request by OpenTrial:
“The Bangalore Principles of Judicial Conduct require judges to exhibit six core values: independence, impartiality, integrity, propriety, equality, and competence and diligence. Furthermore, it is essential judges are accountable to civil society, but in a way that does not compromise their independence.
I. In general, what measures does HM Courts and Tribunals Service have in place to ensure this?
II. In particular, what is HM Courts and Tribunals Service's policy on ensuring judges' salaries, any conflicts of interest, wealth audits, training, career history, etc. are easily accessible to the general public?
"It is vitally important in a democracy that individual judges and the judiciary as a whole are impartial and independent of all external pressures and of each other so that those who appear before them and the wider public can have confidence that their cases will be decided fairly and in accordance with the law. When carrying out their judicial function they must be free of any improper influence. Such influence could come from any number of sources. It could arise from improper pressure by the executive or the legislature, by individual litigants, particular pressure groups, the media, self-interest or other judges, in particular more senior judges."
"With regard to conflicts of interest, it is for individual judicial office holders in England and Wales to consider whether they should recuse themselves from a particular case. All judicial office holders should recuse themselves in any case where bias or the appearance of bias arises and are counselled against engaging in any activity which might undermine or be reasonably thought to undermine their judicial independence or impartiality."
"With regard to wealth audits, neither the Ministry of Justice nor the Judicial Office maintains a register of judicial interests, and there is no current plan to introduce one."
"Details of an individual judge’s training and career history are personal information, and details are not published."
British judges - unrepresentative and unaccountable
What Geoff Hiden is saying, in effect, is that it is only a judge, his or herself, who decides whether or not to preside over a trial in which he/she may have a conflict of interest. As the public, we must obeisantly accept being fully reliant on the presumed integrity of the judge and, because of the dearth of public information about judges, we have little chance of challenging a judge's role in a trial based on conflict of interest. Given human fallibility, that does seem wholly unrealistic and prone to abuse.
Perhaps, if British society were furnished with more detailed information about its judges, we would not have a situation where (according to 2011 figures) just 22% of judges are women, and just 5.1% of judges are from ethnic minorities (around 12.1% of the population of England). Worse still, in 1999 it was determined that 79% of new judges had attended private schools, as opposed to state schools. Today, the figure is 69%. Worryingly, given that the independent school sector educates just 6.5% of children in the UK (just over 7% of children in England), and an estimated 18% of those over the age of 16, it is abundantly clear that judges are grossly unrepresentative of society.
It is because most judges still ply the barrister route that we have such a lopsided cache of judges from privileged backgrounds. Since barristers in pupillage (training) were, until recently, often unpaid or minimally paid, talented, would-be judges from the lower classes were often greatly deterred. Now that pupillage is funded and there is a 'solicitor' route, this may change. However, given the current elitist, dull and moribund image of the judiciary, aspiring to be a judge is unlikely outside the upper middle classes.