Open justice is often referred to as a founding principle of British law – one that can be traced at least as far back as the Magna Carta. It promises transparency in court proceedings so the general public can trust the rule of law.

But courts in England and Wales aren't always as open in practice as they are on paper. Many cases aren't reported on, while family law trials take place behind closed doors.

A parliamentary report published in October 2022 argues that the situation is worsening because of the decline in print media. Newspapers used to be the medium through which most people learnt about court proceedings. But in a fragmented digital landscape, these details aren't cutting through.

In the words of the Justice Committee chairman Sir Bob Neill:

"Since the turn of the century, there has been a transformation in the media landscape. We no longer live in a world where national and local newspapers act as the eyes and ears of the public in the courtroom.

"However, digital media has so far failed to fill the gap in court reporting left by the decline in physical media. More needs to be done to address this critical gap and the loss of public understanding of how justice is applied."

What else does the report say?

The report makes recommendations to fill the gap in court reporting that Sir Bob Neill identifies.

It says that obstacles stopping the media from obtaining court documents should be removed. This could take the form of a "digital portal" where relevant documents could be accessed freely. At the moment you have to pay £11 per document through a government e-filing service.

This recommendation is partly backed up by the trial of Courtsdesk News, a piece of software launched in 2020. This is a resource for accredited journalists to search for cases they consider newsworthy.

All the information they would need to write a report would be there – including any reporting restrictions, such as names that need to be anonymised.

Courtsdesk has said that its pilot scheme shows "there is very real evidence that improvements in the provision of information to journalists will have a large positive impact on their ability to produce court reports – and that this is already underway with documented success".

Greater movement in this direction would bring England and Wales closer to the USA, where journalists can readily access court documents.

The report also says that the relationship between media organisations and court staff is often strained. Journalists say that they're regularly not allowed to report on trials.

One remedy proposed by the report is the creation of "regional communication and information officers" – essentially a first port of call for journalists.

Another issue relates to remote hearings via video link. These proliferated during the COVID-19 pandemic and are still used, although to a lesser degree. Journalists say that they regularly encounter difficulties when trying to join these video links. The report says this needs fixing.

Finally, there's the issue of the Single Justice Procedure. This is when minor or "non-imprisonable" offences like speeding can be decided by a magistrate without court proceedings.

The rationale behind this procedure is that it frees up time for more serious cases. However, the Justice Committee report expresses concern that it lacks transparency.

It made the news in 2019 when David Beckham admitted to a motoring offence by post rather through the Single Justice Procedure.

Recent developments

In October 2022, there was a first in England and Wales – a crown court judge's sentencing for murder was televised.

The Justice Committee argue that this was enough – the public didn't need to see the rest of the proceedings. However, we may see sentencing hearings in magistrates' courts or civil trials televised in the future.

And in May 2023, the Ministry of Justice published a call for evidence asking if the existing bans on photography and sound recording in court are still fit for purpose. The ban on photography in court dates back to 1925 and the ban on sound recording to 1981.

The call for evidence says this: "Most court sittings take place when people are at work, and consequently, many people base their views of the court system from dramatised portrayals in television or films. The broadcast media can play a part in opening up the courts to the public, demystifying the criminal justice process, and increasing understanding of sentencing."

Are there exceptions to open justice in England and Wales?

In 2014, there was controversy around the criminal case of R v Incedal and Rarmoul-Bouhadjar. This concerned two people suspected of terrorism offences.

Initially, the trial was to be the first in British legal history to be held entirely behind closed doors. The Guardian newspaper made an application to the Court of Appeal to publish the names of the defendants.

In June 2014, the Court ruled that some details of the trial would be made public – namely, the defendants' identities, the trial's outcome and some of the judge's and prosecution's opening remarks. However, the "core of the trial" would remain a secret.

Justice isn't always open in family courts either. They can be life-changing for families – for example, a family trial could decide whether a child is placed in care or put up for adoption. But they're typically held in private.

Critics argue that this contributes to the general public's lack of trust in the family court system. For this reason, a year-long pilot scheme is allowing accredited journalists to report on some cases in Leeds, Carlisle and Cardiff.

In this scheme, the judge is in charge of providing witness statements and other documents to journalists. If the case does go to press, names will be anonymised.

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