This blog post originally appeared as our monthly column for November 2019 in Family law at Family Law  Fam Law 1334.
During the summer vacation, the Transparency Project took its message to the people. We organised two events at the Byline Festival in East Sussex, where we camped in a field and enjoyed a sunny bank holiday weekend of talks, discussion, music and fun.
‘A riot of independent journalism and free speech’ is how the Byline Festival describes itself. It’s a varied mix of arts, literature, journalism and music, but running through it all is a theme of citizen participation and activism, typified this year by the presence of Extinction Rebellion.
The Transparency Project staged two events. The first was a panel discussion on open justice, and the need for transparency to restore public trust in the legal system. The second was a workshop, run by our Chair, Lucy Reed, on what was ironically titled ‘Reporting the secret family courts’.
Truth, Trust and Transparency in the Justice System
The panel discussion, entitled ‘Truth, Trust and Transparency in the Justice System’, took place in the Forest Forum, which was basically a section of wooded hillside covered by a broad canvas canopy, under which rows of straw bales provided the seats facing the wooden stage.
It was chaired by Brian Cathcart, Kingston University Professor of Journalism, and featured Lucy Reed, barrister and chair of the Transparency Project; Adam Wagner, barrister and founder of the UK Human Rights Blog and RightsInfo; Sophie Walker, barrister, former CEO of the Centre for Criminal Appeals and founder of JUST:transcription; and Mark Hanna, of Sheffield University Department of Journalism Studies and co-author of McNae’s Essential Law for Journalists.
Each of them was given 5 minutes to set out their perspective on the topic, after which Brian as chair prompted discussion of some of the issues raised and invited questions and comments from the floor. What follows is a rough summary of the panellists’ initial contributions.
Trust in the system
Lucy Reed identified three broad areas of concern. The first was the lack of trust in the family justice system. There was a lack of trust, both on the part of parents involved and of the public generally, about how the system and the professionals in it operated, their ethical perspective and their motivation. But, looking at it from a different perspective, there was also a lack of trust by those working within the system about the media and the way it reported the family justice system.
The second was the phenomenon of different truths within the system. Journalists, professionals within the court and parents all described the same things in profoundly different and incompatible ways. There appeared to be several reasons for that. First, there was a poor level of understanding, or what might be called process literacy, about how the legal system worked, about how journalism worked and about how social media operated. There was also a gap between what was provable as a legal fact and people’s subjective experience, what they felt to be the truth, so people’s narratives increasingly clashed with the legal ‘truth’ that the court was operating on. And because of the emotions within the family court system it was sometimes far too painful for people to hear a truth that didn’t sit well with their own truth.
The third issue was the difficulty that all the different players within the system sometimes had with taking responsibility for their own actions. Lawyers, social workers, judges and others within the system all took pride in what they did, were motivated to do right by the children and families they were dealing with, and, partly because the system was largely operated in private, they were not used to public scrutiny or public criticism. While there were mechanisms for accountability such as appeals, regulators and complaints processes, those professionals were fundamentally not used to a culture where the public could scrutinise what they did. That was true also of journalists, who could also be thin-skinned; and although they liked to hold the family justice system to account, they often found it difficult to be the subject of criticism and constructive challenge. Parents also found it difficult to accept responsibility for the way their own behaviour had affected their child and found it emotionally more manageable to criticise others instead. But that too fed the mistrust in the system.
For all these reasons the profound lack of trust in the family justice system needed to be recognised as a problem, which in turn was affecting outcomes and how people engaged with the system.
Sophie Walker focused on court transcriptions, or the lack of them. She began by explaining how, as an appeals lawyer in the United States, she would hear a case before she saw it. She would hear it coming down the corridor on a trolley piled high with beautiful 200-page bundles of transcripts containing every word of the case. When, 5-years later, having set up an appeals charity to overturn miscarriages of justice in England, she asked the court what it would cost to obtain a transcript of her first entire case, from first word to final sentence, she was told it would be £20,000. The Legal Aid Agency said no to her funding request, so she had to make do with a transcript of the judge’s summing up.
Thus began an obsession with court transcription, a ‘very unsexy, possibly boring area of legal practice’ which nevertheless ‘could be one in one of those corners of the justice system that if we got right, we could change everything’. Why?
To start with, it really helped to know what happened at your own court hearing, given how stressful such occasions were and the difficulty of listening to what was going on at the time; and particularly when, as Lucy had described, someone was saying something that you perceived as attacking you. If we could provide people with a written transcript of what was said to them at the end of the case and gave them time to really think about it, people might be less likely to appeal because they would have really understood what happened first time around and accepted the court’s decision.
But what happened when something went wrong and you wanted to try and get a second opinion? Without a transcript it was not easy either to find a lawyer or to explain what had gone wrong. But even if you could track down the right transcription company and fill in the EX107N form, it could cost £120 an audio hour to transcribe a hearing. And by the time you’d got that, the time for appealing had expired so you had to apply to appeal out of time.
Another problem, given that we had a common law system which depended on being able to see what had happened in other cases, was the recent dramatic drop in the number of published judgments. It was a problem that stretched beyond the UK, because other common law countries around the world relied on English case law as precedent and to help them develop legal doctrine. How were journalists able to report a case correctly if they didn’t know what had happened? It could take weeks to get a transcript, but by then the story would be out in the public domain and it would be very hard indeed to change the narrative.
Finally, there was the data contained in the judgments which could be analysed to help us understand what was really happening in our courtrooms. That could only be done if the data were made accessible. It wasn’t, because the transcription services had not changed in decades. The mission of Just:Transcription (Sophie’s social enterprise) was to change the system by harnessing modern technology and make transcripts much more accessible.
Mark Hanna focused on the role of court reporting in maintaining open justice. The main rationale for open justice was that, if they were under public and media scrutiny, the judges, lawyers, police and others in the justice system were likely to up their game and follow best practice. That scrutiny rationale was linked to the trust and confidence rationale and the public education rationale: the more there was reporting of the courts, the more people understood the justice process.
There was a big threat to open justice from the recent decline of the regional and local media, with financial pressures and job losses of many journalists, and studies suggested that the volume of court reporting had gone down 40% in the four years to 2016. Although only a fraction of cases were ever reported, particularly in the civil courts and tribunals, judges knew that a reporter could come into their court at any time, and that had a ripple effect. The fewer reporters there were, the more open justice was undermined.
What could be done to increase the number of reporters going into all kinds of courts? Could we have a public subsidy for court reporting? There had been a public subsidy to cover councils: the Local Democracy Reporting service was funded by the BBC and helped the regional press to cover local authorities. Could that be extended to cover the courts? Could we get more people able to report the courts, more citizen journalists, blogging? But court reporting was not a job for the total amateur, because it was legally dangerous. If you ignored a reporting restriction, for example by naming a rape victim, that was a criminal offence because they had anonymity. So, people had to be careful when reporting the courts. Could we extend training to citizen journalists? There had been new entrants to court reporting in recent years: people had been crowdfunded to report major cases, such as Peter Jukes (one of the founders of Byline, who live tweeted the phone-hacking trials).
Could technology help? Some people might be aware of the current Ministry of Justice digital reform programme. Three to four hundred courts had closed in recent years, in a cost-cutting exercise, so some counties only had one magistrates’ court. You might have to travel 20 miles just to appear as a witness or defendant, or just to hear cases. Why? Because they were using that money from selling off the courts to fund a £1bn digital reform programme. Some hearings, not necessarily criminal cases, but other cases would be virtual hearings, with no court at all, just people Skyping in their evidence and the judge watching them on a screen, lawyers presenting from their offices. How were the press going to cover virtual hearings? The suggestion at the moment was that they go to a courthouse and use a viewing booth to peer into the virtual system. But could a reporter tap on the screen and say ‘I want to challenge that reporting restriction’ or ‘I didn’t hear that company name, could you repeat that?’
But there were opportunities as well. If there was a digital system that was properly financed, it could mean, for example, that synopses of criminal cases could be posted up before they happened, so reporters would know what the case was about and perhaps even use them to help report the case. Could verdicts and sentences be put online, and could more civil and family judgments be put online to improve public understanding? There was already public access to civil court documents, if you turned up at court and paid a fee. Why could they not be online, free, for everyone to see? Some information was sensitive, so perhaps only a journalist should be allowed to see it, eg a synopsis before a jury trial, to avoid prejudicing the trial. But how should a journalist be defined? Tommy Robinson had called himself a journalist, but he was now in jail for contempt of court, because he wasn’t a journalist. So, there might be problems but, on the positive side, there was also a possible revolution in the way courts were reported on the horizon.
Adam Wagner wanted to make the case for radical transparency of the courts. A hundred years ago, he said, the vast majority of cases would involve either a criminal case against a person or a civil case in which individuals or companies argued against each other. That was essentially what a court case was. In the last 50 years that had radically changed, and now if you walked into a civil court, particularly the Supreme Court, you were more likely than not to find a public law case, ie one involving a public authority accused of going outside their powers. That was due to the rise in judicial review since the 1970s and, more recently, the Human Rights Act 1998. In all those cases, what was in issue was a matter of public policy. And in those cases, the public should know what’s going on. They should be able to go online and find the original claim, the arguments in the case, the government’s response: all those documents should be available to the public. And they ought to be able to see what’s going on, even if they couldn’t travel to the court in person. Some courts now broadcast online what was happening in the court, and there was no reason why that could not be expanded to a whole range of court hearings, subject to appropriate restrictions where necessary (eg for privacy or mental health reasons).
People should also be able to access statistics. They should be able to see which judges were doing what, how often were certain judges finding against claimants, for example. Those sorts of statistics should be easily accessible online, rather than being buried or only available to Freedom of Information obsessives.
There were models for this. In public inquiries, for example, such as the Leveson Inquiry, there were cameras in the courtroom and you could watch it online whenever you wanted to, unless there was some reason why they couldn’t show it. They transcribed evidence and all the documents before the inquiry were published on its website (now available via the Discover Leveson resource hosted at Kingston University). The systems were available and they were good.
In the Supreme Court you could watch hearings online, and you could watch them back, although bizarrely only for a year afterwards. The high-profile Gina Miller (Art 50) case (R (on the application of Miller) v Secretary of State for Exiting the European Union; Re Agnew and others’ application for judicial review (reference by the Attorney General for Northern Ireland); Re McCord’s application for judicial review (reference by the Court of Appeal (Northern Ireland))  UKSC 5) had been a model of transparency. It started with a blog (the Constitutional Law blog), was picked up in a newspaper article by a lawyer, David Pannick QC, who then was instructed in the case along with one of the bloggers. Everything was broadcast at the time and commented on via Twitter and other blogs, and the judges were reading and paying attention to the blogs, because they mentioned them in the judgment. And everybody won, because the public were involved and understood it and the entire process was conducted in public.
That was an example of the sort of radical transparency where the public had access to the courts in a way that didn’t just mean having to go to the court and sit in the back. Such transparency could not only add to our justice system but also to our system of government and to our public policy.
Leading the ensuing discussion, Brian as chair noted that there appeared to be opportunities for greater transparency, but wondered if there was actually demand for it. If more information were put out there, would the public would actually look at it?
Sophie cited a recent Supreme Court case (Cape Intermediate Holdings Ltd v Dring (for and on behalf of Asbestos Victims Support Groups Forum UK)  UKSC 38) which we commented on here in which Lady Hale had said the documents in cases should be accessible to the public, but while the public might not necessarily engage with that, it would provide citizen journalists and bloggers with the material to write about and explain cases. But it was something that ought to be happening as a matter of course, as part of Adam’s idea of radical transparency, not simply in response to individual demands in a particular case.
In response to a question about PLE or public legal education, Lucy said people were not being taught at school about how the legal system worked, and the public generally had a pretty low level of understanding about it. There was a thirst for knowledge but they needed somebody to curate that knowledge and make sense of it for them. At the moment there was a limited flow of information in family cases, and news reports, though they might be based on a judgment that had been made available, were often very selective about what parts of it they used; but if bloggers had access to the information they could explain what really happened and signpost the public to the source of information.
Would it help people to understand the law if, as one questioner suggested, we had a written constitution? Adam responded by saying that to some extent we already did the Human Rights Act was a constitutional document. What would help would be to have a clause in a written constitution stating that all the courts should be open to the public, as the Supreme Court was under the statute which had set it up. However, as Lucy pointed out, you still needed to have the resources to provide that information, and resources in the justice system were currently very overstretched.
Mark pointed out that there was a need for journalists to be in court, however useful it might also be to publish information about the cases which the public could access. But journalists couldn’t cover every case, and as Adam pointed out, sometimes it was other people, such as bloggers, following the information that was made available, who were able to draw the journalists’ attention to the cases where something interesting was going on.
Both Lucy and Adam had been blogging as barristers for years, on a voluntary basis, because they saw there was a need to explain things that journalism could only ever scratch the surface of. They were now part of an ecosystem in which journalists also operated and fed off their work, particularly since, as Adam pointed out, newspapers no longer had legal experts as correspondents. But the model was not necessarily a sustainable one, which brought us back to the suggestion Mark had made about funding for public interest journalism. Perhaps that was now the way forward.
The workshop: reporting the ‘secret’ family courts
The workshop, entitled (with deliberate irony) ‘Reporting the secret family courts’, was scheduled to take place in a rather smaller tent than could comfortably accommodate all the people who turned up for it. In any case it was far too stuffy in the little workshop tent and the floor was too uneven to arrange the folding chairs on without risk of collapse or injury. So we arranged them in a circle outside in the sunshine and struggled a bit to make ourselves heard.
It is hard to know quite what to expect when you put on events like this at a festival, where there may be four or five other events going on, or the lure of the food stands and the bars to compete with, or just lying in the sunshine. We had a capacity turnup for the initial workshop session, but they weren’t the sort of people we expected. We had designed it primarily for journalists and bloggers who might want some pointers on how to avoid the pitfalls of reporting in the family courts where there are strong restrictions on what can be published. But when Lucy went around the group asking people to say why they had been interested to come, the majority turned out to have some connection to social work or were simply curious members of the public. There was even a family court judge. But, there was only one journalist.
That changed the tenor of the workshop, as Lucy found herself explaining to a largely non-lawyer audience about the different types of family case, how the reporting restrictions worked in those cases and why they might be varied or removed. She explained why some parents wanted their cases (their version or narrative) reported, or reported it themselves on social media, and why others were afraid or suspicious of the press being in their court. She explained about the publication of judgments on BAILII following guidance issued by the President of the Family Division in 2014 (Sir James Munby P, Practice Guidance: Transparency in the Family Courts: Publication of Judgments  1 FLR 733) and how hard it was for judges to comply with the need to redact the cases to avoid the risk of jigsaw identification or unnecessary distressing detail.
It became apparent that, although many of those attending were social care professionals, they were interested, engaged and open minded about more transparency, whilst also being naturally concerned about how to protect the privacy of children.
Given the audience and the ground covered in the first session, the second session (which had been scheduled for the same time next day) proved surplus to requirements, and instead people were directed to another event, on at the same time, which discussed the shortcomings of family court reporting. That was a presentation by Brian Cathcart (see above) and Paddy French about their report Unmasked: Andrew Norfolk, the Times and anti-Muslim reporting a case to answer, in which one of the cases discussed was the so-called Muslim Foster Carer case (AB (A Child) (Case Management Order) (Case No: ZE17C00153), unreported, 29 August 2017. Case discussed in various posts on The Transparency Project blog and elsewhere, and included as a case study in Doughty, Reed and Magrath, Transparency in the Family Courts: publicity and privacy in practice (Bloomsbury Professional, 2018), Appendix 1, at p 269ff.) Page 7
Reflections on the festival
The tagline of the Byline Festival is ‘Dance, discuss, laugh and change the world’. The discussions we provided were part of a more general mix about trust and scrutiny of public institutions, including most notably the government and its handling of Brexit, the media and their responsibility to provide balanced and well informed coverage of policy issues, and companies such as Facebook and Cambridge Analytica and their abuse of private data. The presence of Extinction Rebellion focused minds both on the risks of climate change and the mechanics of activism.
But there was also laughter and a good deal of music, of various types, ranging from folk to punk to jazz-rock and the sensory overload experience of Pussy Riot. People drifted from tent to tent, loitered around the food stands and bars, or just sat on the grass in the sunshine, listening to the discussion in the nearest tent or chatting to one another over a drink.
We’re grateful to Byline Festival for giving us the opportunity to put on our sessions and to reach an audience beyond the world of the law, the press and social media in which we usually operate. Early bird tickets for next year’s festival are now available, and we are already wondering what we might do there. Ideas welcome.
Trustee of The Transparency Project