OPEN JUSTICE Flashcards
What is open justice?
principle recognised by Parliament and Courts
it is fundamental to the rule of law and the integrity of the UK Court system depends on a fair and public hearing by impartial tribunal
what did Wragg. P say (on which page and year)
2017 p 89
‘open justice amounts to a constitutional principle of the highest order’
what is the general rule (and exception) to open justice
general rule - administration of justice must be done in public
exception - any restriction must be exceptional and based on necessity
- burden is on party seeking restriction - clear evidence is needed - terms of restriction must be proportionate
what are the values of Open Justice?
transparency to see justice done
- instils trust regarding impartiality
- can be therapeutic to see justice in conflict resolution
right to free expression and press
- to inform and educate the public
right to fair trial
departing from open justice?
- only in exceptional circumstances
- justified by court in either statute or common law
- when making an application for anonymity, court must be satisfied that the quality of evidence or cooperation by a witness is likely to be diminished after being identified by public
- court must ask:
1. is order necessary?
2. is it proportionate?
3. is there a pressing social need?
what are super-injunctions and anonymity orders?
super injunction - order preventing disclosure and publication of identity and circumstances of claim
- usually interim injunctions
- acronyms used
anonymity orders - (aka RRO) judge asks, what is in public domain already?
do super injunctions and anonymity orders work?
arguably no:
- use of one does not stop other countries reporting
PJS V MGN 2016
- Used interim injunction - everyone already knew parties involved - UKSC still upheld injunction as there was no public interest
CTB v MGN LTD 2011
- Super injunction
despite anonymity order, everyone knew as was leaked online
- injunction struck out
explain Guardian v Mohammed Jabar Ahmed 2010
- name already released so anonymity order (AO) unnecessary
- court did a three-way balancing act with ART 6.8.10
- court very explicit that papers need to sell stories, if parties are unknown, story is decapitated (pg 34-38) - compromises how the press can educate the public
- name is super important (pg 63)
- allows public to receive relevant information and to make connections (pg 69)
explain JIH v NGN 2011
- kiss and tell story
- if all parties to affair want to be anonymous, are they allowed to?
- court said no - court is in charge and they get to choose, court is a public system so open to public scrutiny - there is a public interest as to how the court responds to the case
explain Re S (A child) 2004
what are the 4 steps?
personal argument?
can you plead anonymity if you are not party to the trial?
- no, court was sympathetic but where would line be drawn?
- balance of ART 8 and 10 - generated 4 step criteria:
1. neither article has precedence over the other
2. where values under both articles are in conflict, intense focus on comparative importance of specific rights being claimed is necessary
3. justifications for interference/restriction must be taken into account
4. proportionality test applied to each Article
personal argument - could argue in favour of S using trauma and use Art 8 exceptions - protection of health
explain X v Dartford NHS Trust 2015
- x suffered birth defect - sued NHS, settled claim - since x is protected person, must go through courts to ensure advantage is not being taken
- x wanted anonymity- court is public system and open to scrutiny
- courts used Art 14 (equal treatment) and argued interference of art 8 was not justified - public interest in seeing justice done still fulfilled without disclosure
downfalls of open justice?
sexual assault cases - if name and facts are to be put forth in public court system, are you comfortable knowing everyone will know? - can result in people not coming forward due to social stigma attached
- can be nuanced to allow cases of this i.e., anonymity orders
impact on witnesses - may be intimidated or not want to face public scrutiny so won’t come forward - justice not done
what was the important quote in Scott v Scott 1913?
Lord Atkinson - hearing of a case may be humiliating, painful etc but it is tolerated because it is felt that public trial is best security for impartial administration of justice, best means of winning public confidence
what are the advantages and disadvantages to naming people?
advantages:
- more people may come forward if they know person is going to court (witnesses, victims etc)
- if innocent, actual perpetrator may be discovered
- provides context as to allegation
KHUJA V TIMES 2017 - public had a right to know parties due to nature of allegation (child grooming and prostitution)
disadvantages:
- if innocent, name is dragged through mud
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