Baroness Carr of Walton-On-The-Hill, Lady Chief Justice Society Of Editors 30 April 2024
It is a pleasure to be invited to give a Keynote Address to this year’s Society of Editors Conference – and Happy 25th Birthday! I understand that the Prime Minister was your surprise guest earlier today. Not a bad line-up with the heads of two out of the three arms of state speaking to you. Of course, we all know that Kamal is the head of the fourth…..
I am the second Chief Justice in recent memory to have something of a link with journalism. Lord Judge, whom we very sadly lost last year, had a deep passion for the media. I believe that stemmed from his father. A trawl through our records tells me that he spoke to you at this very conference back in November 2009.
In a similar vein, my family’s journalistic roots run deep. My great-grandfather’s uncle, Henry Carr, was steeped in local and regional journalism. He trained as a journalist in Liverpool, before becoming in turn sub-editor, editor and then owner of the Western Mail, Wales’ oldest daily newspaper (which I am happy to say is still going. I bought a copy when I was last in Cardiff). I say steeped in journalism. That is perhaps an understatement. One Saturday night in 1893, the Western Mail was itself the news. Its premises had burnt to the ground. Undeterred by what some might have taken as something of a setback, Henry organised new offices and presses at double speed. By the following Monday, the Western Mail hit the newsstands reporting on its own fire! Like any good journalist, he knew that the key was to get the story out.
So much of the past. What of the present. I am already on the record as a firm believer in the fundamentally important role that a free, robust, high-quality, and rigorously independent local, regional, and national press has in our civic society. It is that role that I would very much like to see strengthened and invigorated in a legal context, particularly where the local and regional press are concerned, so that it can continue its crucial role in scrutinising the justice system as well as it does the other branches of the state.
We have only to see, for instance, the work of journalists, such as Nick Wallis, in bringing to light matters concerning the Post Office scandal. Or the work of Joshua Rozenberg, the legal journalist who has done so much to make the law clear and accessible to all, to increase public understanding of the issues, and to promote informed debate. This makes us all appreciate the truly important role that journalism and the media, at its best, plays in society. Joshua kindly invited me to participate in his final edition of Law in Action, after 40 years. This gave me the opportunity to cast my mind over that period. 1984 was when I first properly opened a law book. Back then life was very different. Amongst other things, there were no mobile telephones or emails. Since then:
1988: appointment of Dame Elizabeth Butler-Sloss as first woman in the Court of Appeal. Not known as Lady Justice until 1994!
1990s: women were allowed to wear trousers in courts in England Wales
1991: marital rape recognised
1998: Good Friday Agreement
2005: Constitutional Reform Act
2008: judges no longer to wear wigs when hearing civil and family cases; new judicial robes introduced
2009: Lady Hale the first woman to be appointed to the Supreme Court
2010: the Equality Act
2013: the Marriage (Same-Sex Couples) Act
2014: electronic courts filing introduced
2013: first Court of Appeal proceedings televised
2020: civil partnerships for heterosexual couples
2020: European Union (Withdrawal Agreement) Act 2020
2020: Covid
2022: sentencing remarks livestreamed for the first time
2023: first female Lady Chief Justice
And it also gave me the opportunity to pay tribute to Joshua’s contribution to the legal world, and the public’s understanding of it.
With all this in mind I am very much concerned to ensure you have the tools to scrutinise the justice system effectively. To this end I am establishing a new Transparency and Open Justice Board, chaired by Mr Justice Nicklin.
Its aim is to examine and modernise our approach to open justice, not least to ensure that we take proper account of wider societal changes as well as those being effected by the courts. It will set objectives for all Courts and Tribunals, focussing on timely and effective access in terms of listing, documents and public hearings. It will engage with the public and interested parties to make sure that these objectives properly reflect what should be delivered by a modern justice system.
Historically, work relevant to open justice has been dealt with piecemeal by reference to individual jurisdictions. As I have said, the Board’s remit covers all Courts and Tribunals. It will be looking in particular at what can be done to increase public and media access. That our courts are open to the press is as important as being open to the public.
The judiciary and media share a common duty: we are and must continue to be the guardians of open justice. The greatest threat comes not from direct attack on the principle, but rather from careless – sometimes inadvertent – failures to protect its ideals. I intend the judiciary to step up, continuing to play our important constitutional role of protecting and promoting open justice as an essential element of the rule of law. The Board that I have established will take this important work forward, and I am delighted to be publishing its terms of reference today. It will review and challenge the way that the judiciary works and ensure that openness and transparency is at the heart of what we do. We will renew the promise that justice will not only be done, but will be seen to be done.
No doubt one of those ways may be through the careful expansion of broadcasting hearings. I say “careful” because we will need to consider the effect that expansion may have on the parties to proceedings and, particularly, on any adverse effect it may have on the administration of justice, public trust, and confidence in the courts.
Greater broadcasting of Courts and Tribunals cannot be achieved by the judiciary alone. Changes in legislation, which are of course always a matter for Parliament, will be required and there will be resource implications. This is just one area where investment in the justice system is required, together with long-term planning – a topic that I have not been afraid to raise with government. Whether it be the estate, staffing and resourcing, digitisation and more.
Just as you are considering how best to reach new audiences, the justice system must also consider how best to reach audiences that may never step into a court building. Increasing opportunities for access, whether it is to physical courts or via broadcasting, is only half of the story. High quality court reporting also calls for those opportunities to be taken. I appreciate all too well that the scope for that is not as it once was. Pressures on the press, and particularly local press, all too often mean that court reporting is not a priority. Local press used to play an important role in reliable, accurate court reporting; they knew the local staff and knew the local judges. Open, trusting and collaborative relationships were forged. But financial pressures on the media are, I am sure, an ever-increasing concern just as they are for the justice system; and one that may see journalists have to focus on other areas than the courts. This may particularly be the case where court reporting would require journalists to travel between courts to find good, newsworthy stories, of which there are many every day.
One development that the new Board will explore further in order to help promote increased access and reporting, is making online attendance at hearings easier. This will, amongst other things, ensure that you have access to advance information about hearings – so you know which proceedings are being heard, and where and when.
Comments to the Civil Justice Council in its examination of the effect on online hearings during the Covid-19 pandemic are telling in this respect. The Council reported that some journalists found that online attendance has enabled them to report more easily on a wider range of proceedings than in cases where they have physically to attend court. Again, increasing facilities for remote attendance is not something that the judiciary acting alone can achieve.
In many Courts and Tribunals, where there is routine use of written evidence and submissions, openness and transparency are only meaningful if, applying the relevant rules, important documents are also made available to those who are interested in following and understanding the proceedings. I hope you have all considered, and responded to, the recent consultation on revising the provisions on access to documents in civil proceedings, commissioned by Civil Procedure Rule Committee. Just as with increasing transparency in Family proceedings, which continues to be developed by the President of the Family Division, I very much hope that you will be able to take advantage of the increased openness that the Rule Committee’s proposed reform will, over time, provide.
There are, of course, times when proper exceptions can and must be made to the general rule of open justice. There may, for instance, be times when reporting restrictions need to be put in place to protect the proper administration of justice for the parties or others involved. Even here though there is and should be a place for proper and effective press scrutiny.
Reporters in court can always apply to make representations on the question of reporting restrictions. If they have a well-founded challenge to the imposition of restrictions, there is no reason why they cannot stand up and request permission to explain the nature of their challenge. A well-founded point, respectfully put, would seem to fall within the accountability role that you play. It is one of the ways in which, as Bentham put it, you keep judges on trial while they are trying.
Not all journalists may feel entirely comfortable standing up in court and training is important – on both sides. Journalists need to know the law and not be afraid to challenge, and judges need to support open justice and facilitate the work of journalists. I am aware of the great training that goes on in many journalism schools which are staffed by excellent professionals – this work is invaluable. I would like to encourage ongoing professional development and enhanced awareness in this area. I am pleased to see that training is on your agenda later this afternoon. And as a sitting judge I always welcome reporters in my court, indeed, I look forward to seeing some of you in court 4 in the not too distant future!
Improving access and increasing reporting does, however, bring with it increased responsibility. You are the eyes and ears of the public. You are the means by which issues are brought to their attention. The means by which the judiciary and what happens in court is subject to informed and intelligent debate. There should be no shying away from press discussion of the good, the bad, and the ugly where the justice system is concerned. Its democratic accountability depends upon it. As has been said before, and it bears repeating, both the independent judiciary and the independent press are essential features of a healthy democracy. Both must, however, carry out their role fairly and effectively. That is why I would stress that debate concerning what goes on in courts should be informed and intelligent. It should be issue-focused.
Debate and scrutiny are good things. There will, though, be times when the scrutiny you apply to the judiciary will be uncomfortable for us. That is rightly so. Acting consistently with the judicial oath will often require judges to reach decisions that are challenging and uncomfortable. Some will be controversial. Such decisions are, no doubt, the ones where informed public debate is most necessary, and your role in reporting accurately what is said in court and what judges say through their judgments, is all the more important. It is, in those cases however, all the more important not to fall into the trap of playing the man or woman but not the ball. It is all too easy to target judges, their private lives or their families, to make personal criticisms of them arising from their judgments when what they are doing is conscientiously and properly giving effect to their judicial oath.
Simply put, such an approach is not acceptable. Judges are entitled to respect for their private lives, like anyone else. And as importantly, such an approach does nothing to advance public debate on the issues. It fails as an effective means of holding the justice system to account.
And this takes me back to my key point. A robust and independent press is an essential part of the fabric of a healthy democracy. Just as a robust and independent judiciary is an essential part of that fabric. While we may play our parts in different ways, we both do so to secure the rule of law. Nick Wallis played a significant part in raising public awareness of concerns over the prosecution of sub-postmasters and mistresses. Mr Justice Fraser played his part in the civil proceedings. Each independent of the other. Each ensuring that the rule of law is not just done but is seen to be done. As for the courts and judiciary, they play their role best when they are subject to informed and intelligent scrutiny and debate. I very much hope that you and your members will continue to ensure that we play our role as best we can by making that so.
