Can you keep a secret – in open court?

The Times
Law section: November 30, 2004

How can evidence be heard but not read? Heather Brooke on the odd rules of evidence highlighted by a royal memo

A memo written by the Prince of Wales and used in an employment tribunal has presented an insight not only into his thinking on education but also the anachronistic practice in open court where only the oral account of a document can be made public while the document itself remains hidden from public view.

The contents of the memo were read out at the wrongful dismissal hearing of Elaine Day last week in Croydon but both lawyers refused to disclose the memo so the context of the oral statements are unclear.

In the absence of the actual evidence, the Prince was able to claim that he had never said such things. The memo was “a travesty of the truth”, he told a collection of Church of England bishops last Monday, “nor indeed have I ever used any such words or anything like them”.

Yet the oral account of the memo shows he did: “What is wrong with people nowadays? Why do they all seem to think they are qualified to do things far above their capabilities?” the Prince exclaimed, before embarking on a critique of the learning culture in schools.

The best way to clarify these interpretations would be simply to make the actual document public. After all, if a verbal account can be made public, why not the tangible object from which it is read?

Oral evidence may have provided adequate levels of openness in the past, but we live in an age when cases are decided increasingly on written evidence. This includes written statements, expert testimony, electronic records, photographs, hard copies of documentary evidence and statistical and scientific analysis such as DNA analysis or ballistic tests.

An employment tribunal spokesman said that the memo was not made public because as part of Day’s application it contained personal information and to release it would be a breach of the Data Protection Act 1998. “The only things we make available publicly are witness statements taken as read and a copy of the judgment,” he said.

Similar barriers to evidence operate in all courts. Far from being viewed as part of the public record, evidence used in court is considered the property of the parties involved and they hold the copyright, according to a spokeswoman for the Department for Constitutional Affairs.

Yet copyright only involves making copies; it does not stop someone inspecting documents. Also the Copyright, Designs and Patent Act allows for fair-use and copying for journalistic purposes. So why are court records closed to the public?

In fact, there is nothing expressly calling for evidence to be suppressed. The Civil Procedure Rules and Criminal Procedure Rules are both silent on the subject. There are two main barriers: laws of privacy such as the Data Protection Act (DPA) and the Human Rights Act, and the judiciary’s attitude on the public’s right to know.

Jonathan Bamford, the assistant Information Commissioner, said that while evidence presented orally is exempt from the Data Protection Act, documents are not. If the information is released by order of the judge it is also exempt from the DPA although few judges use this power.

Many lawyers, too, are reluctant to make evidence public for fear of violating the DPA which is widely regarded as incomprehensible and chaotic; even the Court of Appeal has called it “a cumbersome piece of inelegant legislation”. The ambiguity has created a convenient excuse to deny the public information and it has also created a chilling effect where parties err on the side of caution rather than be accused of breaching the act.

In civil cases, a third party can apply to the judge to have documents made public but in criminal cases even this small window is closed. Family courts are closed and even the orders issued by a judge are withheld. The Freedom of Information Act, which comes into effect on January 1, will not present a solution either, as Section 32 provides an absolute exemption for all court records with no need to take the public’s interest in open justice into account.

Not every country is so wedded to secrecy. The American judicial system is remarkable for its openness. There, all records are considered public by definition, if used in open court. “It restores the public’s faith in the judiciary to see the system as clearly and openly as possible,” says Al Tompkins, an instructor at the Poynter Institute for Media Studies in Florida.

Of course there are instances where confidentiality may require sealing a record to protect a witness or family from harm or to preserve commercially sensitive information. In the US, lawyers must convince the judge that these reasons override the predominant interest in open justice. In Britain the starting point is secrecy.

Matthew Parish, a barrister with experience of working in both Britain and the US, says the American system generates a lot more media interest. “I don’t know that I agree with the public being allowed to delve into case files and start reconstructing cases using documents that were never fully used in court,” he says. “We shouldn’t have the media and the public second-guessing the legal system.”

But he does acknowledge that “the average American knows a lot more about their judicial system than their British equivalent”. Yet, the reason Americans know so much more about their judiciary is precisely because of the importance placed on the public’s right to know. If evidence remains hidden, the public’s view of a supposedly open trial is censored and their ability to test the veracity of evidence is stifled.

In such a system the public is unable to criticise a judgment because they lack the full factual record of the case. So it could be argued that keeping evidence hidden is the judiciary’s way of keeping an uppity populous in its place.

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