June 5, 2025

Speech by Mr Justice Nicklin: Open Justice – Fit for Purpose

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Court & Tribunals Observers’ Network

4 June 2025, Green Templeton College, University of Oxford

Mr Justice Nicklin,
Chair of the Judiciary’s Transparency & Open Justice Board

1. I was delighted to accept the invitation from the Courts and Tribunals Observers’ Network and the Sheila Kitzinger Programme to give this public lecture[1] at Green Templeton College. As I was born in Oxford, there is an element of homecoming for me (even if my family moved to West Wales when I was 3).

Introduction: The Challenge of Open Justice

2. By way of introduction, let me begin with a simple question: If justice is done, but no one sees it, can we truly say it has been done? This question lies at the heart of open justice. And it’s why I chose the title “Fit for Purpose”— not as a critique, but as a challenge. A challenge to ensure that our justice system is not only functioning, but functioning transparently, accessibly, and accountably.

3. Just over a year ago, the Lady Chief Justice appointed me Chair of the Judiciary’s Transparency & Open Justice Board. Our mission is clear: to embed open justice into the daily workings of every Court and Tribunal in England and Wales.[2] To do that, we’ve developed a set of Key Objectives—a blueprint for reform and a yardstick for progress. These objectives are not abstract ideals. They are practical tools to help courts become more open, more understandable, and more trusted. I shall return to the Key Objectives shortly.

4. I deliberately did not add a question mark at the end of the title of the talk today, mainly because I did not want spend time focusing on the areas in which Courts and Tribunals could undoubtedly do better. That would be an easy speech to write, but I doubt it would tell you anything of which you were not already aware. However, any work in the area of open justice must, and I do, acknowledge these issues and challenges.

5. Nevertheless, in this speech I want to be more positive; more forward looking. I want to focus instead of what we can do to make open justice fit for purpose in a modern justice system. That process is ongoing. There will always be new challenges. The Board has been established as a permanent judicial board and is a fixture of judicial governance. The maxim that “justice must not only be done, but must be seen to be done” is not a rhetorical flourish.[3] It is a constitutional imperative which will endure. But if open justice is to be more than a slogan, more than a set of principles or rules, it must be embraced as a philosophy or mindset. The Board’s vision for open justice is simple. It should be shot through everything that Courts and Tribunals do. Every day.

What Is Open Justice For?

6. But first, what is open justice for? That question is deceptively simple, but the answer is actually very important. Many assume the value of open justice to be self-evident. I confess that I initially made this assumption. My focus at the beginning of my work, as Chair of the Board, was simply upon how to promote open justice in Courts & Tribunals. But if open justice is to discharge its vital function, we must explain and embrace its purpose, not just assert its importance. As the High Court of Australia[4] has explained, open justice “is a means to an end, and not an end in itself”. It is a means to public understanding, scrutiny, and confidence. It ensures that justice is not hidden behind jargon, closed doors, or inaccessible documents. We must also recognise that open justice is not self-executing. The principles of open justice must be upheld, on occasions nurtured, and — critically — seen to be upheld.

7. Delivering – and being seen to deliver – the justice is only part of the open justice mission. Although Courts and Tribunals have been working openly for centuries, there is evidence that some court users (a term which goes beyond parties and witnesses and includes those who want to observe or find out about proceedings) still find the legal process impenetrable and secretive. There remain practical barriers to openness, including the lack of information about cases being heard, the public availability of documents and transcripts (and their cost), and limited support available to navigate the system.[5]

The Role of the Transparency & Open Justice Board

8. The Board’s work will be guided by the Key Objectives. The Key Objectives represent the high-level outcomes that, once finalised, will guide the Board’s work; will be used to identify areas where changes can and should be made; and, finally, will be used to measure the outcomes from any change programme. We published our proposal for the Key Objectives in early December 2024 and invited engagement on the proposals. The closing date was 28 February 2025. The Board received some very thoughtful and constructive suggestions for how the Key Objectives could be improved. I should record, publicly, the Board’s thanks to all those that submitted responses to the public engagement. I can assure you that we have considered all representations we received. The Key Objectives will be finalised and published at the end of July together with a summary of the responses we received.

The First Key Objective: Promoting Public Understanding

9. Picking up the theme of what open justice is for, one suggestion, made by several respondents, was that the Key Objectives needed to explain why open justice was important and not to treat it as an assumed self-evident good. We took that on board, and having reflected, the Board has agreed and added the following as the first Key Objective:

“Courts and Tribunals should promote open justice to enable the public to understand and scrutinise the administration of justice by Courts and Tribunals; and thereby seek to (a) uphold public confidence in the administration of justice; and (b) support improved public understanding of the constitutional role discharged by Courts and Tribunals in the administration of justice and the rule of law.”

10. Although concise, there is a lot contained in in this Key Objective; and much of real importance.

11. First the verb “promote” has been adopted deliberately. It reflects the Board’s duty to promote open justice.[6] It is an active verb. Open justice is likely to suffer if Courts and Tribunals are not vigilant and active in promoting it. This is the nurturing that I mentioned. Merely opening the doors of a Court or Tribunal to the public, whilst obviously important, may not be enough to deliver the objectives open justice seeks to secure. Making open justice fit for purpose requires Courts and Tribunals to recognise that open justice is more than simply allowing the public to attend a hearing and publishing judgments. That delivers accountability, but only in part.

12. In a New Zealand case[7], the Court emphasised that open justice is not just a matter of “providing just answers for individual cases”,

“… It is a matter as well of maintaining a system of justice which requires that the judiciary will be seen day by day attempting to grapple in the same even fashion with the whole generality of cases. To the extent that public confidence is then given in return so may the process be regarded as fulfilling its purposes”.

13. The second important aspect of this Key Objective is that the purpose of promoting open justice is to enable the public to understand and scrutinise the administration of justice. The Board has used “public” because open justice is about public access to the work and decisions of Courts and Tribunals. Of course, the media often discharge an important role of being a conduit of information about proceedings before Courts and Tribunals to a wider audience, but in doing so they act as the proxy of the public and are, now, no longer the only channel for that information.

14. The role of “public watchdog”[8], historically played by the media, is now shared by others who observe and report upon proceedings in Courts and Tribunals. The Courts and Tribunals Observers’ Network are part of the increasing number of citizens, including academics, who are taking a direct interest in the work of Courts & Tribunals and, in doing so, provide vital reports about proceedings to a wider audience. I thank each of you for your dedication to this work. I would be delighted to see citizens observing the public hearings of every Court and Tribunal and reporting on what happened in the proceedings.

Justice Must Be Seen to Be Done

15. This is perhaps the moment to return to my original question. If justice is done, but no one sees it, can we truly say it has been done? Justice – in the narrow sense of the resolution a dispute by an independent tribunal according to law – can clearly be achieved in proceedings that are conducted wholly in private. The system of arbitration offers precisely such a private dispute resolution process, and the parties rely upon it to deliver an outcome that is just.

16. Arguably, however, “justice” in its wider meaning means inherently public justice. Certainly, justice administered by the publicly-funded Courts and Tribunals in this jurisdiction is undoubtedly “public justice”. Whilst derogations from open justice may be permitted where shown to be necessary, the requirements that any derogation be proportionate and no more than is necessary are an important safeguard. The Court or Tribunal must strive to make public that which can be made public.

17. Even where a Court or Tribunal is compelled to sit in private, in most cases it should be possible to explain, in public, why it is necessary to sit in private and it can, usually, produce a public judgment in suitable terms protecting the information that must be withheld.[9] The Investigatory Powers Tribunal shows how this can be done in an area of work that is highly constrained by restrictions on what can be made public. On its website (external link), it publishes its judgments in suitable terms. It does so to ensure accountability and public confidence. In a recent public judgment[10] (accompanying a private judgment that was necessarily withheld), the Tribunal recently itself emphasised the importance of open justice and how that was to be achieved in its jurisdiction. The decision shows the many practical steps that can be taken to ensure that proceedings are not entirely hidden from public view, even if some information must be withheld. If the Investigatory Powers Tribunal can achieve this, every Court and Tribunal can do so.

Digital Justice and Attendance at Hearings

18. Undoubtedly, for the purposes of the legal principles of open justice, it does not matter if no members of the public actually attend a hearing. Providing it has been open to the public, it is treated as a public hearing “whether or not any member of the public avails himself or herself of the right to be present”.[11] Conversely, and importantly, if a hearing is required to be public, and the public is unlawfully excluded, the hearing may be considered a nullity.[12] Where an Employment Tribunal hearing was held in a room only accessible through door with a coded lock, effectively excluding the public, the Court of Appeal ruled the tribunal had no jurisdiction to sit in private and quashed its decision.[13]

19. The imperative that hearings should be open has, perhaps, two implications for a modern justice system. The first is that the need for enhanced security, to protect Judges and other court users, must not lead to security measures so strict that they deprive the public of the opportunity of attending public hearings. The second relates to hearings that take place wholly online. Unless the Court or Tribunal is justified in sitting in private, conducting proceedings wholly online must not, by inadvertence, effectively convert them into a private hearing. That depends on two things. First, reliable advance listing information that identifies the mode of hearing and how someone who wants to observe the proceedings can make a request to be allowed to do so. Second, sufficient resources within HMCTS to process such requests. The Board and HMCTS are aware that there can be issues with people gaining timely access to remote hearings. HMCTS are working to provide “Open Justice Champions”. They will be regionally based, and it is intended that they will provide a single point of contact to assist in resolving open justice issues.

20. The pandemic compelled a significant transfer online of hearings that would have been conducted in person in a court or hearing room. The Coronavirus Act 2020[14] sought to protect open justice by enabling Courts and certain Tribunals to broadcast proceedings conducted wholly online “for the purpose of enabling members of the public to see and hear the proceedings”. Since 28 June 2022, remote attendance at hearings has been governed by a revised s.85A Courts Act 2003. Where the necessary technology is available, Courts and Tribunals can now give directions to allow remote observation of in-person and hybrid hearings as well as wholly online hearings. Practice Guidance (PDF) issued by the Lord Chief Justice and Senior President of Tribunals and the Regulations[15] issued under s.85A both emphasise the importance of open justice.

21. For those who do attend public hearings, to be fit for purpose, members of the public or reporters (whether professional or amateur) should have timely and effective access to information about the proceedings to enable them to understand them. The well-recognised objectives of open justice are hardly likely to be realised if, although the proceedings are conducted openly, the audience cannot understand (or at its most prosaic, hear) what is going on. If advocates and the court adopt an impenetrable shorthand, or whose reliance upon silent written submissions and unspoken written witness statements means that the bulk of the arguments (and evidence) is never publicly articulated, then the product is more likely to be closed than open. Justice may be done in the individual case, but the objectives of open justice will not have been served. Whilst courts must be efficient in the administration of justice, that should not be at the expense of open justice. Other sections of the Key Objectives will address issues concerning the availability of documents and information about the proceedings (more about this in a moment).

Upholding Public Confidence: Public Legal Education and Awareness

22. The third aspect of the first Key Objective identifies the practical importance of open justice and one of its core purposes: to uphold public confidence in the administration of justice: “the value of public scrutiny as a guarantor of the quality of justice”.[16] In the context of Article 6 of the ECHR, the ECtHR explained the importance of open justice:[17]

“The public character of proceedings protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts can be maintained. By rendering the administration of justice visible, publicity contributes to the achievement of the aim of Article 6(1), a fair hearing, the guarantee of which is one of the foundations of a democratic society”.

23. The former Lord Chief Justice, Lord Burnett, identified four practical objectives that open justice seeks to achieve:[18]
a) it enables the public to know that justice is being administered impartially;
b) contemporaneous reports of legal proceedings promote public confidence in the administration of justice and the rule of law can lead to evidence becoming available which would not have been forthcoming if reports are not published until after the trial has completed or not at all;
c) it reduces the likelihood of uninformed or inaccurate comment about the proceedings, and
d) it deters inappropriate behaviour on the part of the court (and others participating in the proceedings)

24. In another case, the practical value and importance of open justice was explained as follows:[19]

“… The words express a principle at the heart of our system of justice and vital to the rule of law. The rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed? It is an age old question. Quis custodiet ipsos custodes — who will guard the guards themselves? In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse.”

Open Justice and the Rule of Law

25. Equally, most commentators would regard open justice as being fundamental to the rule of law. In his book, Rule of Law[20], Lord Bingham identified eight principles comprised in the rule of law. The first of these was that the law must be accessible and, so far as possible, intelligible, clear and predictable. Embraced within this principle is that “all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts”.

26. Judicial independence is also cornerstone of our democracy and the rule of law, but it comes with public accountability. That accountability can only be achieved if open justice is a practical reality, not a legal theory. Transparency is not a threat to judicial independence — it is its safeguard.

27. And public accountability in the administration of justice goes beyond the judiciary. It includes the litigants themselves, the witnesses who give evidence, and others involved in the proceedings, particularly if they are part of the government. In R (IAB) -v- Secretary of State for the Home Department[21], the Court considered whether the government could redact the names of junior civil servants in judicial review proceedings. JUSTICE intervened, arguing that such redactions undermined the principle of open justice and the fairness of proceedings. In the Court of Appeal, Lord Justice Bean, giving the judgment of the Court, said that redacting the names of civil servants in documents in the case was [36]:

“… inimical to open government and unsupported by authority. If Parliament takes the view that members of the Civil Service have a general right to anonymity in judicial review litigation then it should enact a primary statute to that effect.”

Recent decisions have also confirmed the importance to open justice of the names of judges and expert witnesses not being withheld from the public.[22]

28. The rule of law depends on public confidence in the administration of justice which, in turn, depends upon open justice. Justice should be, and seen to be, delivered impartially, fairly and consistently. If justice is administered behind closed doors, it will not achieve the objects I have identified. Worse, suspicion can fester and the lack of transparency risks creating a space in which it is easy for false information to propagate. This can erode public confidence in the administration of justice and, ultimately, undermine the rule of law. In the Supreme Court of the United States[23], Chief Justice Burger explained:

“People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing. When a criminal trial is conducted in the open, there is at least an opportunity both for understanding the system in general and its workings in a particular case”.

29. Looked at more positively, an informed public is a powerful ally of the rule of law. This depends on better public understanding of the legal system and the role of Courts and Tribunals. Others share the responsibility for promoting public understanding of the legal system, and the Judiciary plays a role in encouraging better understanding. There is a network of hard-working community relations Judges who organise Court visits, Court open days and other initiatives actively to engage and educate the public as to the work of Courts and Tribunals. But, beyond that, open justice also has very important role to play in this public education mission.

30. Evidence suggests that there is room for improvement on this front. The Ministry of Justice published a call for evidence “Open Justice: the way forward”, on 11 May 2023. It sought comments on ten areas relating to open justice and transparency. The last of these concerned public legal education. On 29 January 2025, the MoJ published a summary of responses received. In respect of public legal education, the report summarised:

“Most respondents felt the public did not have a good understanding of the justice system and the key concepts, processes, and rules within the justice system. Many respondents outlined that many people feel fear and confusion when faced with legal proceedings. Court users and organisations representing court users echoed this, saying that there is little understanding of the roles, responsibilities, and powers of different functions of the courts, such as the judiciary, barristers, and the CPS. Some respondents commented that media reporting often focuses on exceptional or controversial cases, so the public do not have a full understanding of the justice system particularly the complexities of sentencing. Accessibility of the law and public understanding of the justice system were seen by many as important principles which underpin the rule of law.

Some respondents mentioned the lack of robust information plus the language and communications used in the justice system as being a barrier to public understanding… Some respondents commented on the lack of understanding about the role of the media in open justice, and that people often do not realise that certain information will be in the public domain or that journalists have a right to report on cases (unless reporting restrictions are in place).

Many respondents commented that the public have a vague understanding of concepts such as contempt of court but are not clear about how these concepts translate in practice. Social media and the ubiquity of smartphones mean that people publicly comment on cases without understanding the potential restrictions or why the restrictions are in place.

Similarly, trials can be derailed by jurors conducting online research. However, some respondents mentioned the positive aspects of social media enabling better understanding of the justice system, including bloggers such as the Secret Barrister”.

Access to Court Documents

31. In most modern justice systems, access to documents is both an essential facet and a necessary element of open justice. The Constitutional Court of South Africa explained why there must be public access to such documents:[24]

“From the right of open justice flows the media’s right to gain access to, observe and report on, the administration of justice and the right to have access to papers and written arguments which are an integral part of court proceedings subject to such limitations as may be warranted on a case-by-case basis in order to ensure a fair trial”.

32. In my judicial capacity I have held[25] that “the availability of skeleton arguments, and witness statements, deployed in open court hearings is essential to any meaningful concept of open justice”. Even in criminal courts, where the evidence and most submissions are communicated orally in open court, there is an increasing reliance upon written submissions (for example sentencing notes). We must ensure that the drive for more efficient working does not inadvertently stem the flow of information which should be made public.

33. Following consideration of the responses the Board received from the public engagement, the Key Objectives will identify the core documents that, subject to the Court or Tribunal deciding that one or more documents must be withheld, will be publicly available.

34. One of the benefits that the Board hopes to achieve from implementation of the Key Objectives is better consistency in the approach of Courts & Tribunals to open justice. In the area of public availability of documents relating to the proceedings, for example, the process to obtain court or tribunal documents is currently not standardised. Respondents to the MoJ’s call for evidence noted that, unlike in civil court proceedings, the Employment Tribunal’s procedural rules do not provide for public access to the main statements of the case. Concerns were also raised at to the cost of obtaining documents.[26]

35. How these objectives are to be achieved will, in the first instance, for each Court and Tribunal jurisdiction to consider. It is likely that there will need to be changes in the relevant procedural rules, which will be the responsibility of the relevant procedural rules committee. There will be an important question of when the public will be entitled to obtain the relevant document that will be for each jurisdiction to consider. Generally speaking, for example, it may well be that witness statements and written submissions in civil proceedings will only become available once they have been deployed or relied upon by the relevant party.

Harnessing Technology for Transparency

36. In the area of digital access to documents relating to proceedings in Courts and Tribunals, and delivering a system that is fit for purpose, we can perhaps learn much about what can be achieved by looking across the Atlantic to the US Federal Court System. It uses a digital case management and public access platform known as PACER (external link) (Public Access to Court Electronic Records). PACER is the primary system for public electronic access to federal court records. It provides access to over 1 billion documents from federal appellate, district, and bankruptcy courts. PACER is integrated with the case management platform used by court staff and parties to file and manage cases electronically, ensuring that PACER users see the most current information relating to a case. Anyone in the US can register for a PACER account to search for and view case information. Users then search by case number, party name, or court and view dockets, court opinions or judgments, and filed documents. There is a fee structure: typically 10 cents per page (maximum $3 per document), with a fee waiver if usage is under $30 per quarter.

37. A little closer to home, in October last year, Mr Justice Johnson and I attended a presentation at the Supreme Court of its new digital services. The UK Supreme Court Change Programme was completed in March 2025. It represented a full digital transformation, including the delivery of a new case management portal integrated with websites for the Supreme Court the Judicial Committee of the Privy Council. New rules and practice directions came into force on 2 December 2024 which required use of the case management portal. The portal and the Supreme Court and Privy Council websites were officially launched on 4 December 2024. The websites are linked the Court’s case management system. Case pages of the websites contain more information than previously provided and now include copies of the Statement of Facts and Issues and judgments from lower courts.

38. The Board has already started work on providing to the public more information about proceedings. Alongside the now routine live-streaming of most hearings in the Court of Appeal (Civil Division), a pilot is currently underway to provide enhanced information about cases to support better understanding of proceedings. On the Court of Appeal’s live-streaming website, you will now find, for cases selected to be part of the pilot, links to the decision being appealed and, critically, the skeleton arguments of the parties. This will enable those observing the proceedings – whether in person or via live-stream – to gain a much better understanding of the issues and the arguments.

39. And there is likely to be further work that we can do to make this even better. A simple change of practice – requiring hyperlinks to authorities to be included in skeleton arguments – would mean that the observer of proceedings would have immediately at his/her fingertips – the previously decided cases upon which the parties are relying in their arguments. It is important to note the resource implications of improvements like this. The Court of Appeal project would not have got off the ground without the support of an already very busy team member in the Court of Appeal office putting in a considerable amount of extra work. It is right that I should publicly express the Board’s thanks for this assistance.

40. The provision of documents about court proceedings using digital platforms shows the central importance of digitisation of Courts and Tribunals not only to their efficiency and accessibility but to the delivery of open justice.

41. The Board hopes to harness existing technology to assist in better delivery of the core documents in civil proceedings. We are very conscious that one of the issues which is closest to the hearts of court observers is access to documents. What is currently available to the public is, even in courts which have electronic filing, only some of the documents which observers want to see, or which come into the public domain as a case progresses. Work is therefore currently underway to try to ensure that most documents which enter the public domain also enter the electronic filing system and become accessible via the public facing side of the CE File system – in the way that claim forms, pleadings and orders are already. A draft Pilot scheme is in the final stages of drafting and will be considered for approval by the Civil Procedure Rules Committee this week.

Looking Ahead: A Call to Action

42. Do I believe that we can deliver open justice that is fit for purpose in the Courts and Tribunals of England & Wales? Undoubtedly, yes. Can we be proud of our jurisdiction’s commitment to open justice? Again, yes. Are there things that we can improve? Undoubtedly, yes. Are we complacent? I hope I have demonstrated that certainly the Board is not. But we need your support. We will need your input at various stages in the future. Changes to procedural rules are likely to be the subject of public consultation. Your experience and insight as open justice consumers is particularly valuable. So please do respond when opportunities arise.

[1] I acknowledge – and thank – High Court Judicial Assistant, Ross Guinea McIntyre, for his research for aspects of this talk.

[2] Transparency & Open Justice Board: Terms of Reference (30 April 2024) (PDF).

[3] Lord Hewart CJ in R -v- Sussex Justices, ex parte McCarthy (external link) [1924] 1 KB 256, 259

[4] Hogan -v- Hinch (external link) [2011] HCA 4 [20] per French CJ

[5] Summary of Responses: Call for Evidence – Open Justice, The Way Forward (PDF) (Ministry of Justice, 29 January 2025) §1.1.

[6] Transparency & Open Justice Board: Terms of Reference (30 April 2024) (PDF).

[7] Broadcasting Corporation of New Zealand -v- Attorney-General [1982] 1 NZLR 120, 123

[8] In re S (external link) [2005] 1 AC 593 [18] per Lord Steyn

[9] see Practice Guidance (Interim Non-Disclosure Orders) (PDF) [2012] 1 WLR 1003 [45] discussed in Giggs -v- News Group Newspapers Ltd (external link) [2013] EMLR 5 [93]-[94]

[10] Apple Inc. -v- Secretary of State for the Home Department [2025] UKIPTrib (PDF) [1]

[11] Solicitors Regulation Authority -v- Spector (external link) [2016] 4 WLR 16 [20]

[12] McPherson -v- McPherson [1936] AC 177

[13] Storer -v- British Gas plc (external link) [2000] 1 WLR 1237

[14] Coronavirus Act 2020, s.55 and Schedule 25 which inserted s.85A into the Courts Act 2003 and s.29ZA into the Tribunals, Courts and Enforcement Act 2007

[15] Reg. 4(a) of the Remote Observation and Recording (Courts and Tribunals) Regulations 2022.

[16] Khuja -v- Times Newspapers Ltd (external link) [2019] AC 161 [13]

[17] B and P -v- United Kingdom (external link) [2001] 2 FLR 261 [36]

[18] In re British Broadcasting Corporation (R -v- Sarker) (external link) [2018] 1 WLR 6023 [29]. See also: R -v- Legal Aid Board, Ex p Kaim Todner (external link) [1999] QB 966, 977E–G per Lord Woolf MR; and In re S (external link) [2005] 1 AC 593 [30] per Lord Steyn.