What Are They Trying To Hide?

George Greenwood writes:

Open justice is meant to be a key part of the British constitution. In a truly open society, it is not good enough for justice to be merely done, it must also be seen to be done. The free press plays a key part in this. Without professionals to report on the work of the courts, to explain its arcane processes to the public, and to hold those in judicial office to account for how they exercise formidable powers to deny liberty, the principle means little.

But today journalists are being denied the ability to perform this role effectively. The relationship today between reporters and the judicial system is fundamentally broken. And it is a lack of transparency that is at the heart of this breakdown. In short, the problem is the British judicial system is set up for a world where a court reporter can physically attend hearings at most courts on most days. In such a world, the analogue nature of the courts was less of a problem, as there was always someone able to review listings daily to identify cases in need of urgent third-party oversight, and to keep communities informed about what was going on in their local courts. While far from perfect, the system worked well enough. The most important cases were covered, and at least some obvious miscarriages of justice were identified and ultimately, due to this press attention, overturned.

But two developments have made this old way of doing things unworkable. Cuts to the number of local journalists due to crippling financial challenges facing the sector mean there are fewer and fewer people able to attend proceedings. The short-sighted clickbait model adopted by some local outlets has left many of their remaining reporters unable to attend courts. Most court days now take place without a reporter in the building, especially outside the south east. One must now be very lucky or very determined to spot a case that might be of wider interest.

But, crucially, the courts have also failed to keep up with modern technology, retaining arcane processes that have no place in a modern justice system. An inexplicable proportion of their work still takes place on paper. Under the current system, there is no way for outsiders to search criminal court cases by keyword or even defendant name, making it extremely difficult to track the progression of a case through the criminal courts. The system for civil cases is not much better.

Court listings are put up with little warning, and with ongoing organisational crises owing to a backlog of cases, short-notice changes can allow key hearings to slip through the system without proper scrutiny. It is not clear that, on any meaning of the word, such a system can be described as “open”. Even when you do manage to spot a case in time, there is no automatic ability to access court records, even for live cases.

One must make an application to the court clerks, who are often poorly trained in open justice rules and often deny routine requests, or require time-consuming formal hearings for a judge to make decisions on a case-by-case basis even on the most basic of applications. This is despite the right to certain documents in theory being automatic.

It is bad enough if one is covering a live case. As an investigative journalist, I tend to work on historic cases, and access to that material is significantly worse. In 2024, I was following the trail of an MP, James McMurdock, who, the Daily Mail reported, had been imprisoned for assaulting a former girlfriend. He claimed in his response he had “just pushed her”.

One does not tend to go to prison for that, so I wanted to dig further into what exactly happened and asked for the findings of the judge in that case. Despite the open justice principle, officials declined to release the information without a full-blown hearing. It took five months to get hold of a simple statement of reasons for the conviction totalling 50 words. Even then, it took the assistance of The Times legal team and an external barrister.

I was eventually able to report that McMurdock was jailed for repeatedly kicking his girlfriend, not just pushing her. But as any good journalist knows, the time taken to report this from the original Mail story reduced its impact – a direct result of needless judicial intransparency.

There is an obvious solution to the court transparency crisis, and that is proper digitalisation and public access to unsealed proceedings, and a rationalisation of the application system. But this has not happened in a meaningful sense. In some cases, there have been regressive steps.

A few years ago, a company called Courtsdesk received an initial licence to begin collating and sharing magistrates’ court listing records with journalists and other third parties who have a professional need. This was a gamechanger. It finally allowed meaningful case tracking, historic research into previous court appearances by keyword, and broader analysis of what actually happens within the business of the courts across cases, and this benefited academics, researchers and investigators far beyond just journalists. The Times was able to use this information to track serious defects in the government’s electronic tagging systems, with violent criminals not properly tagged for months, as evidenced in the magistrates’ court appearance notes.

But this was too good to be true. The Ministry of Justice (MoJ) reverted to type and revoked Courtsdesk’s licence over concerns that the service had “used AI” to process some of the records it held, it claims, in breach of its licence. The AI in question was used to experiment with redacting needless victim information from their records to help protect victims.

The US makes court records public by default

Journalists were, and remain, locked out of the system. There remains a black hole in the interim where a system that had been used for public-interest reporting has simply been shut off. At the time of writing, these licensing issues have yet to be sorted out, and we have no idea when we might get access once more. What makes this so depressing is that there is simply no good reason for it to work this way. The US, which has a similar common law system to the UK, makes most of its court records public by default. Federal court records are contained within a system called PACER. If a court document is not specifically sealed by a judge, anybody with an account can download copies for 10 cents a page.

While records at a state level can sometimes be less comprehensive, they are often just as transparent. This makes it possible for journalists to not only easily report on cases, but to track trends, identify judges who misuse their powers, and have a powerful source of official documents that show what is going on in society. There is simply no reason, other than the MoJ and judicial intransigence, for us not to have a similar system here.

The cost of such a system would be minimal, and the creation of a single point of truth for court records, with officials having the ability to deem a document either public or sealed, could save millions in the long run, compared to the current disaster zone of a fragmented system. Such transparency is not simply a nice to have. We are in the midst of a crisis of faith in democracy because of widespread disinformation.

Seeing state failure across the board, trust in government is falling, and that has opened a Pandora’s Box of conspiracy, from the manosphere to the far left, that has made established fact a contestable arena. The best cure for conspiracy is transparency wherever possible as a balm for speculation. Not being able to pull up basic transparency records fuels questions about what those in power must be hiding.

Without meaningful transparency, nefarious actors can more easily spread messages that government is covering up foreign grooming gangs, or that “two tier” policing is official policy. It is perhaps no surprise that the lack of detailed public records about the trial of Lucy Letby has created a cottage industry of speculation about her innocence, at significant harm to the families of her victims.

But crucially, a breakdown of effective transparency is most important because it makes miscarriages of justice that upend the lives of its victims more likely. Major scandals, such as the wrongful prosecutions during the Post Office affair, might have been overturned more quickly if there was meaningful access to the prosecution records across the cases, allowing the common trends to be more easily spotted.

To rebuild the relationship between the judiciary, the press, and the public at large, the government and the judicial authorities must open up the courts for the 21st century and make court documents easy to access through a common electronic platform.

If people have only a theoretical, not a practical, right to see justice be done, it is no wonder they begin to suspect what those in positions in authority get up to. As we have seen a refusal to show one’s working is already having serious consequences for the state of our democracy.