Article: The courts are open but justice is a closed book

The courts are open but justice is a closed book
The Times, 28 July 2010

By Heather Brooke

We are denied even the barest details of what goes on in supposedly public legal proceedings

Last week I had an encounter with open justice. I was attending the Information Tribunal hearing of a friend who is trying to peel back layers of secrecy surrounding allegations that the Liverpool Women’s NHS Foundation Trust had a history of silencing whistleblowing staff by offering them public money to sign confidentiality or ‘gagging’ contracts.

I’ve been to the Tribunal before when I was fighting for the release of MPs’ expenses and that’s when I discovered the only record of proceedings of this so-called “open” people’s court (the Tribunals are meant to be a less formal, more accessible form of justice) were my scribbled notes. When it came time to write a script for a dramatised version of the hearing my notes and those of other reporters were all we had to go on. I’d asked at the time if I could tape record the hearing and was told “no”.

This time I decided to press harder. The rhetoric of the English legal system is that justice must be seen to be done so why are the public forbidden – under threat of jail – from recording a verbatim account of proceedings? Not only that, rules are so opaque and obscure that court reporters struggle to report cases with any degree of accuracy or depth. And that is when there is a reporter in court, which these days is a rarity – there used to be 25 reporters covering national courts for the Press Association; by 2009 there were only four.

We are paying nearly £1.5 billion for the court service plus £2.1billion for legal aid and the salaries of nearly 1000 senior judicial officers. It’s a high price, but to be honest not enough to adequately fund the system. However, if we’re going to invest in the judiciary it’s vital we understand where our money is going and receive some benefit for our considerable contribution. The least we might have is an account of proceedings held in open court.

Anisa Dhanji, the judge, said she was concerned with the hearing being recorded. ‘Usually such requests are made in advance so the tribunal can maintain the necessary degree of control over the transcript.’

“Control” is exactly what a court shouldn’t be exerting. Once it is decided that it is open, there should be no restriction on how that open hearing is processed. She went on to say that she’d allow me to record now but I’d have to wait for a future ruling before I could “use” the recording.

The next day in court the Judge announced she’d made her ruling.
“Please turn your tape recorder off,” she said, looking sternly at me over her glasses. I did so.

‘I have made my ruling. As you will no doubt be aware it is a Contempt of Court under section 9 to make any kind of recording for any purpose including with a view to publication or transcription. It is for the court alone to decide if a recording takes place and the court must have control of the recording. To do otherwise is fraught with difficulty. Firstly there is a risk of manipulation. Secondly it puts at a disadvantage other parties. Any recording you have made thus far must be deleted and cannot be used in any way including transcription.’

At least that’s the gist of what she said because here’s the final irony: When I asked if I could have a copy of her ruling she said there was no written record of it.

To close a court, effectively, from public scrutiny in a ruling of which there is no record strikes me as something straight out of Kafka.

The simple answer is to allow tape recorders for all: no party is disadvantaged and an ‘official’ recording is there for checking. This is how it works in other countries. But this is to ignore the root objection of the courts: that they are losing control of how court proceedings are presented to the public.

The courts’ refusal to allow people to tape-record benefit a few private companies whom the court approves in cosy deals. These people have exclusive right to tape record or listen to official recordings. The cost to the individual of hiring them is about £150– 250 per hour of typing and even before the transcription process begins, you must sign a form stating you will pay whatever amount the company decides. You could be out tens of thousand of pounds and there’s no way to challenge the bill as only the company is allowed access to the raw tapes.

Many trials in the upper courts are now officially recorded (and in the case of the new UK Supreme Court, filmed) yet these records are not accessible to the public. All High Court hearings have been digitally recorded since February 2010 and sit in a basement in the Royal Courts of Justice. When I spoke to the court’s governance officer he told me there were no plans to make these accessible directly to the public. Why not?

I could go on. You might like to know whether the builder you’re going to give your keys to has any convictions for theft or if the company you’re about to do business with has a report for fraud. Tough. This information is not a click of a button away. Instead you’ll have to know the details of the case before you can call up any records – even though it’s the existence of cases that you’re trying to find in the first place. It’s Catch-22. If you do know the details of the case you’re then forced to undergo a tortuous and tedious process which involves battling a raft of petty officials across a number of court offices all for the simple purpose of accessing information that is supposedly public.

There are three main things that would make the courts useful to the
general public: (a) knowing by name who is using them (the court list); (b) why (the particulars of claim);(c) the result (the verdict, sentence or settlement). Yet trying to get any, let alone all, of these is fraught with difficulty.

We have a justice system paid for by the common people but whose proceedings are available only to the rich, powerful, or privileged. Let’s not pretend this is justice for all.

This is a longer version of an article in today’s Times.

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19 Responses to “Article: The courts are open but justice is a closed book”

  1. Xenobio says:

    This is just ridiculous. I’m Malaysian, currently two of the Opposition-ruled states in our country are trying to draft Freedom of Information Acts. Yet some of the National Front (ruling coalition) politicians have said that state-level FOIAs would be illegal under the federa Official Secrets Act! (incorrect.) When officials and politicians are in power too long, they forget that it’s the people who own them, not the other way around.

  2. S Mann says:

    Your article is worthy, but mistaken. It IS possible to obtain a transcript of judicial hearings. There is a tape transcription form [EX107]- which also works for digitally recorded hearings – which one can obtain online which an interested party sends to the court where the hearing is held on which one designates the name of the court-approved transcriber to whom the tape is to be sent by the court. The person who requests the transcript must make previous arrangements with the approved transcriber and directly pays the transcriber. However, it is very, very expensive although the the government does enforce a maximum upper limit.

    One negative aspect is that a transcript of the judgment part of the proceedings must be approved by the judge before the transcript is sent to the person requesting – and paying for – the transcript which means that, technically, the judge can alter the transcript from what is actually said at the hearing.

    You might consider looking into another issue which is the gross discrimination against litigants in person – who have the right in law to represent themselves in court – both by judges who despise litigants in person and rule against them even when their case is clearly presented and supported by statutory law and by court staff who place obstructions in the filing of documents and acknowledgement of receipt of the filing.

  3. Hi Heather, I think this addresses the what and why very well. So now: how do we best press for change? Sharing our letters to MPs, or is there a more effective way?

  4. Heather

    I have just put up a request at the Government Web site “Your Freedom” calling for the abolition of Section 9 of the Contempt of Court Act.
    http://yourfreedom.hmg.gov.uk/repealing-unnecessary-laws/abolish-the-ban-on-recording-court-proceedings. Please join and comment to it

  5. Shaun O'Connell says:

    Valiant attempts with the MP expenses scandal and liked todays Times article. yes it is a nice cosy buisness with court control of taping – they hardly ever ever allow it. Big buisness for transcribers. Only can get copy of the Judgement for free if on income based benefits ot if Court kindly orders it. Transcripts of hearings are prohibitively costly. You experienced open Court. I got told off for taking notes without permission of the Judge in the Crown Court! Your work and wikileaks give some hope for proper journalism. Ever really tried to get to the bottom of why parents are so angry with the secret family Courts, social workers, experts, CAFCASS, and at times other agencies? Secrecy breeds indifference, abuses of power and cosseted decisions based on banalities. Always watch the money flow, it shows where the profits lie and the vested interests. Seems we have a new export now being set up in International adoptions, Court of protection with billions of pounds of commerce and lucrative sources for greed.

  6. Andy Mabbett says:

    If, say, a witness makes reference to a defendant’s previous conviction while giving evidence, the judge can order it to be ignored by the jury and struck from the (written) record. How would allowing recordings cater for such circumstances?

    One solution would be for the court to make and – after editing out such items – publish recordings. This would also counter concerns about “manipulation”. It would also allow for courts to be properly mic’d.

  7. James Goffin says:

    I normally favour moves to open up courts, but your premise is just wrong here. Not being able to tape record court proceedings doesn’t mean that justice is open – in most cases the public can sit and watch proceedings if they so wish, and the press are generally free to report them.
    There’s nothing to stop you taking notes – though you’ll probably need shorthand to make them usefully.

    The practice directions on this – http://www.justice.gov.uk/criminal/procrules_fin/contents/practice_direction/part1.htm#id6178056 – do make some sensible points as to why there is a restriction.
    Dozens of people fiddling with devices, changing batteries, etc could be disruptive. How can you be sure of capturing all testimony unless everyone is miked up? How do you stop people using recordings to influence future witnesses in a way much more compelling than written notes?
    While you scorn the court ‘controlling’ them, recordings could easily be manipulated, edited and recut in a way that ridicules the court – which is bad for democracy overall.

    If you want to campaign, concentrate on access to court lists and results. The could and should be publically accessible – and more so than the details currently available via the Ministry of Justice and Courtel.

  8. Dipstick says:

    The Blogger Anna Raccoon has a series of excellent articles concerning court secrecy under this heading.

    http://www.annaraccoon.com/category/court-of-protection/

  9. IAN CAMERON says:

    To thank you for this very worthwhile item which I read in The Times. I have been interested in Court, Crime and Police reporting for many years and wrote a substantial feature about the such matters in PEACE NEWS – 15 NARCH 1974 “TYHE WAR AGAINST CRIME”. Of course much more recently The Times Legal Correspondent Marcel Berlins (among others) has also written about the declining standards of Crime / Court reporting. I will visit your book. If you’d like a copy of the old Peace News item I could mail to you at The Times. Of course my interests have been wider than solely Court reporting.

  10. Liz Robillard says:

    Thank you yet again Heather. Wonderful work.

  11. John Kitson says:

    Heather – much admiration of your work and I hope that things go well for you. Thank you too for writing this article, even though it’s more Guardian than Times.

    Just starting to study law myself, and the thing that struck me was the whole point of tribunals was the potential for a level of anonymity/confidentiality as opposed to the civil/criminal court system when things are more open?

    Do you think that justice can ever be anonymous and or confidential from the public?

  12. Thank you Heather Brooke for this excellent exposé of our clandestine Kangaroo Courts in the UK, as they are NOT courts of RECORD:

    In Bradford Crown Court, on 6th September 2007, when I had made a TRUE RECORD of Ronald Castree’s bail application hearing (sic) I was arrested by the Police, my tape recorder was taken from me, I was put into a Cell in the court and later that evening I was brought before Judge (sic) Gullick and opted to represent myself, this enraged Gullick and he threatened that if I did not accept HIS choice of legal representation he would send me to prison for TWO YEARS.

    Gullock made an Order that I be detained in a Police Station overnight and brought before him in the morning. I was taken to Keighley Police Station, where the Police refused to interview me on tape, which was an abuse of process under the PACE Act 1984. I was also refused access to my pen and notepad, as I wanted to make notes and outline my defence to the court that it was in the public interest and the interests of JUSTICE that I tape recorded MY Client’s Mr Castree’s hearing, as he was being stitched-up for the murder of Lesley Molseed, as ALL the evidence put Peter Sutcliffe in the frame.

    Having no sleep, as the police were kicking and banging my cell door all night, I was returned to Bradford Crown Court and brought before Gullick again, where I requested that he stand himself down due to a conflict of interest, as he had earlier dealt with my clients application for bail, and had refused it. Gullick refused to recuse himself; thereby having NO jurisdiction and operating a Kangaroo court to cover-up serious crime and send me to Jail for four months for being a GOOD citizen in trying to expose the cover-up.

    Gullick’s chosen legal representative, Stephen Wood QC, was FULLY aware of the abuse of process and that Ronald Castree had given me written authorisation to act on his behalf when Noel O’Gara accompanied me on a Legal Visit with him in HM Armley Prison on 26 August 2007

    You will see in the link below that Noel O’Gara was jailed for taking a photograph of the Police Officers who had harassed us in the Court Room and refused to identify themselves when asked repeatedly to do so. The photograph was for identification purposes, as the Police were acting outside of the law.

    Halifax Courier – Published Date: 07 September 2007
    Pair jailed for recording court hearing
    TWO men have been sent to prison for recording court proceedings.
    http://www.halifaxcourier.co.uk/news/Pair-jailed-for-recording-court.3185526.jp

    Noel O’Gara and George Wescott choose me, Patrick Cullinane, as their legal representative, but Gullick refused this also, which infringed their Human Rights under Article 6 (3c) of the ECHR.

    Stephen Wood QC, who was supposed to be defending me, has ignored all my correspondence requesting the return of my Court File on this matter.

    To date, the Police have NOT returned my Tape Recorder, or Noel O’Gara’s Mobile Phone, which is theft of our property.

    And to cap it all; we cannot get a TRANSCRIPT of the hearing (sic) that sent us to Prison – via an abuse of process. This skulduggery is so outrageous, that you could not make it up.

    Heather Brooke rightly states: “The courts are open but justice is a closed book”

    Therefore, in the public interest and interest of justice: Section 9 of the Contempt of Court Act must be repealed forthwith.

    Patrick Cullinane: – BIG victim of these RECORDLESS Kangaroo Courts in the UK.

  13. Noel O'Gara says:

    Yes indeed what Patrick has stated above happened and I was with him during his and our ordeal.
    The full background to the Kiszko frame up followed on by the Castree frame up for the same murder is outlined on this page of my website.
    http://www.yorkshireripper.com/molseed.htm
    signed Noel O’Gara

  14. The courts are NOT open. Wishing to observe a murder trial from the public gallery in Bradford Crown Court, I was aggresively barred from even entering the building! The ONLY reason was that I had visited the Defendant in prison while he was on remand. They were determined the public gallery would contain only people who were hostile to the Defendant, the jury being influenced by the hostile murmurings from the gallery. In spite of that, the guilty verdict was not unanimous. It was 10 to 2. I DID attend Leeds Crown Court for the ‘hearing’ of the Defendant’s Application for Permission to Appeal. The Public Gallery had a smoke glass screen at eye level, little different to a brick wall, those in court only visible as shadowy figures, acoustics also being very poor. The barrister who PURPORTED to be acting for the Defendant was even more hostile to him than the prosecution. He referrd to the Defendant (his client!) as “This pathetic creature”. Though a person’s physical appearence does not indicate innocence or guilt, in fact the Defendant looked as normal as anyone there, & certainly was not a ‘pathetic looking creature’, despite the dire situation he was in.

  15. As an example of good practice, the Additional Support Needs Tribunal for Scotland itself records its hearings to disc. If a party or representative wants a copy, they’re given a DVD. There’s no charge because, the Tribunal says, it would cost more to make up an invoice than just to burn the DVD free. As however these are very much confidential proceedings to do with childrens needs, i can’t see a member of the public being given this!

  16. IAN PAYNE says:

    Just had a message from Ken Clarke about my disatisfaction with the feedback I received from a Magistrates interview. He backed them 100% !!!

    Let the Magistrate have the freedom to hand out justice I say, rather than be overseen by the man or woman from the Ministry or judicial system I say. Then and only then will real justice be seen to be done and delivered !!!!!

    The courts will only work when there is justice in the country and when the judges stop trying to run the nation – until then I wish you all a Merry Christmas and Happy New Year 2011 !!!!

  17. Dear Heather

    I just wonder whether you might lend your name, weight and experience to our collective efforts of getting Fair Trials and Compensation for victims of a system of justice that clearly is none.

    Might you click on http://victims-unite.net and look at the 30 case stories there and on http://3dm1297.info?

    With my very best wishes for your most remarkable work,

    Sabine
    Mckenzie Friend, web publisher and online activist

  18. Yasmin says:

    Dear Heather

    I would like you to get involved with my legal case from the outset, so that you too can experience the unjust British Judiciary that i am battling, where even Court Official Transcrips have gone missing and there is absolutely nothing that you can do about it, Unless of course you have SHED Loads of money to spend, unlike me (the ordinary citizen).

    I will be more than happy for you to expose how UNJUST the Proceeds of Crime Act 2002 and the Confiscation Orders are to INNOCENT members of the public like myself and How Legal Purchases can become Illegal Purchases in the blink of an eye in a British Court of Justice. I would like you to help me battle this system so that we can get this OUTDATED Act UPDATED and True Justice can prevail.

    I would like to see if you have any luck in finding out How Many POCA Cases have been won by a defendant in comparison with the CPS. As the Court is so reluctant to even hazard a guess?

    The POCA is so CPS friendly, supportive, and weighted with full support of Judges especially in Bradford. Yet, the Defendant’s side is so weak that they can scream INNOCENT and this falls on deaf ears, as there is no way in the UK they can win. I speak from personal experience and this is FACT.

    I cannot understand how this has been allowed to happen in the British Judiciary and I would like your full support to expose this weak link in the Courts today, so that innocent purchases are not taken away so that the Poice Fund can be topped up on mear guesswork and help of their local judge but true fairness and justice can be dished out to all and sundery.

    Please contact me as I know that I have got a very mammoth task ahead of me and could do with a Wise person on board, who is not afraid to take the UK Legal System on to change or mend it’s ways.

    Kind Regards
    Yasmin

  19. SAM says:

    My sympathy to Yasmin and I feel that S.Mann said it all for me too.
    I wish you luck and if you need support please contat FACT – Families Against Court of Protection Theft.
    We are many who have lost our properties/ finances and even our relatives – prematurely. Mostly this has been because of the secret UK courts and injustices that allow some corrupt solicitors to continue to steal on behalf of themselves and also the State. I particularly refer to the Court of Protection and the way it works with Land Registry et al.

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