Most court sittings take place when many people are at work. Many people, therefore, currently base their views on how the system is portrayed on television, or in films. These dramatised accounts rarely portray what happens in court accurately.
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Open justice is a long-established principle of common law systems. It rests on a high pedestal in a liberal democracy as ‘a sound and very sacred part of the Constitution of the country and the administration of justice…’[1]
Jeremy Bentham
Jeremy Bentham propounded the idea of open justice in the late eighteenth century while designing principles for establishments in which persons are to be kept under inspection:
“…the doors of all public establishments ought to be, thrown wide open to the body of the curious at large- the great open committee of the tribunal of the world.”[2]
Although Bentham wrote these words in the larger context of public institutions, they apply on equal terms to the theory of open justice. Bentham in his “Draught of Code for the Organization of the Judicial Establishment” codified the principle of open justice as:
“Article XVIII- Judicial proceedings, from the first step to the last inclusive, shall, in all cases but the secret ones herein specified, be carried out with the utmost degree of publicity possible.”[3]
According to Bentham, secret (or in-camera) proceedings were to be carried out in the judge’s chamber. He also prescribed open justice for trials by the National Assembly Courts, (which, in his Code, wiere courts constituted to hear complaints against any metropolitan judge):
“Article III- Such trial shall be conducted from beginning to end, with open doors and with the utmost possible degree of publicity.”[4]
Open Justice and Democratic Values
The principle underlying open justice was formulated by Lord Chief Justice Hewart:
“Justice should not only be done, but should manifestly and undoubtedly be seen to be done.”[5]
In R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs, Lord Judge CJ draws a link between open justice and democratic values:
“…the principle of open justice represents an element of democratic accountability, and the vigorous manifestation of the principle of freedom of expression. Ultimately it supports the rule of law itself.”[6]
Legal scholars indicate that the principle of open justice encompasses several aspects that are central to the fair administration of justice and the rule of law.[7]
It has both procedural and substantive dimensions, which are equally important. Open justice comprises of several precepts:
(i) The entitlement of an interested person to attend court as a spectator;
(ii) The promotion of full, fair and accurate reporting of court proceedings;
(iii) The duty of judges to give reasoned decisions; and
(iv) Public access to judgments of courts.[8]
Open Court and Open Justice
The principle of an open court is a significant procedural dimension of the broader concept of open justice. Open courts allow the public to view courtroom proceedings. Black’s Law Dictionary defines an “open court” as follows:
“… a court to which the public have a right to be admitted… This term may mean either a court which has been formally convened and declared open for the transaction of its proper judicial business, or a court which is freely open to spectators…”[9]
The idea of open courts is crucial to maintaining public confidence in the administration of justice: “The public must be able to enter any court to see that justice is being done in that court, by a tribunal conscientiously doing its best to do justice according to law.”
Open courts ensure a check on the process of adjudication in judicial proceedings. Bentham regarded publicity about courtroom proceedings as a mechanism to prevent improbity of judges:
“Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial. … It is through publicity alone that justice becomes the mother of security. By publicity, the temple of justice is converted into a school of the first order…”
Lord Diplock, speaking for the House of Lords in AG v Leveller Magazine, remarked that open courts are a safeguard against judicial arbitrariness or idiosyncrasy.[10] Open courts, in his view, help build public confidence in the administration of justice.[11]
Open Court and Public Perception
The public’s trust in the judicial system depends on their perception of how courts function. Open courts make it possible for the public to develop reasonable perceptions about the judiciary, by enabling them to directly observe judicial behaviour, and the processes and outcomes of a case.
In the decision of the High Court of Australia, in Grollo v Palmer, Gummow J dwelt on the idea of open courts:
“An essential attribute of the judicial power of the Commonwealth is the resolution of such controversies … so as to provide final results which are delivered in public after a public hearing, and, where a judge is the tribunal of fact as well as law, are preceded by grounds for decision which are animated by reasoning.
An objective of the exercise of the judicial power in each particular case is the satisfaction of the parties to the dispute and the general public that, by these procedures, justice has both been done and been seen to be done.”[12]
The Ministry of Justice in the UK, in its proposal to permit broadcasting of court proceedings, has succinctly articulated the need for open courts:
“Few people have direct experience of court proceedings, and overall public understanding of the criminal justice system is limited. Most court sittings take place when many people are at work. Many people, therefore, currently base their views on how the system is portrayed on television, or in films.
These dramatized accounts rarely portray what happens in court accurately. With the range of technology now available, it should be easier for people to access better information on court proceedings.”[13]
In the decision of the US Supreme Court in Richmond Newspapers, Inc. v Virginia, Burger CJ observed:
“The early history of open trials in part reflects the widespread acknowledgment, long before there were behavioural scientists, that public trials had significant community therapeutic value… … 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.”[14]
Public confidence in the judiciary and in the process of judicial decision making is crucial for preserving the rule of law and to maintain the stability of the social fabric. Peoples’ access to the court signifies that the public is willing to have disputes resolved in court and to obey and accept judicial orders.
Open courts effectively foster public confidence by allowing litigants and members of the public to view courtroom proceedings and ensure that the judges apply the law in a fair and impartial manner.
Reference
Swapnil Tripathi v. Supreme Court of India (2018)
[1] House of Lords in Scott v Scott, [1913] A.C. 417 at 473
[2] Jeremy Bentham, The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 volumes, volume 4, at page 46
[3] ibid
[4] Ibid
[5] King’s Bench, Division Court in R v Sussex [1923], All ER Rep 233
[6] Court of Appeal, England and Wales in R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs, [2010] 3 WLR 554.
[7] Cunliffe Emma, “Open Justice: Concepts and Judicial Approaches”, (2012) 40 Fed L Rev 385
[8] Ibid
[9] Black’s Law Dictionary, 6th Edition, 1990, page 1091. The Black’s Law Dictionary, 10th Edition, 2014, page 1263 defines an “open court” thus:
“1. A court that is in session, presided over by a judge, attended by the parties and their attorneys, and engaged in judicial business… The term is distinguished from a court that is hearing evidence in camera or from judge that is exercising merely magisterial powers.
2. A court session that the public is free to attend…”
[10] House of Lords, as per Lord Diplock in AG v Leveller Magazine, [1979] AC 440, at page 450.
[11] Ibid
[12] High Court of Australia, as per Gummow J in Grollo v Palmer, [1995] HCA 2.
[13] Ministry of Justice, UK, Proposals to allow the broadcasting, filming, and recording of selected court proceedings, making recommendations, 2012. Available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/217307/broadcasting-filming-recording-courts.pdf
[14] Supreme Court of United States in Richmond Newspapers, Inc. v Virginia, 448 US 555 (1980)