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.
(more…)

From The Times, 24 January 2009
What have they got to hide?
By Heather Brooke

Investigation is a little like psychiatry where the most telling details are often those kept hidden. When only one police force is willing to tell the public what it pays its Chief Constable in bonuses curiosity is piqued. What do they have to hide?

The police chiefs who accepted bonuses not only refused to reveal the amounts, but also declined to say what they were for. Some Chiefs told us they refused bonuses ‘on principle’ which makes one wonder what principles are at stake? We can’t know that until we know the details of the bonuses.

They cited the Data Protection Act, claiming that it would be an invasion of their privacy for the public to know the details of their salary and benefits. This may interest chief executives of public companies who must disclose this information in their annual reports.

It’s a topsy turvy world when the public have more rights to find out how the heads of corporations spend their shareholders’ money than the public do the heads of their public services.

The Data Protection Act is a badly written law. It is understandable that no one can understand it, but it is the implementation of a European Directive designed to protect the privacy of private individuals not to help public officials avoid public accountability.

The law hinges on a fairness principle and a balancing test is used to compare personal privacy interests to the public interest in knowing the information. Under this test, if the information is determined to be private, it can be released anyway if it is found that the public interest in release is more important than the privacy interest. There have been several cases now, including a High Court case on MPs’ expenses, where this balancing test has been done and the public interest found to outweigh the individual privacy interests.

In the case of Chief Constable pay there is clearly a valid public interest in this information. The public pay this money. They have a right to know how much and what it is for. Are the bonuses for cutting particular types of crime? Has this resulted in changes to the way crimes are recorded? Until the bonuses are published we just don’t know how they are affecting policing.

Another issue of concern is the massive non-compliance with the Freedom of Information Act. Of the 57 requests sent out at least 38 forces failed to answer legally. They simply let the deadline come and go failing to provide a legal reason for their continued delay. The police enforce the law, so what does it say when they don’t obey it themselves?