Fair Trial - The Open Justice Campaign

Summary

(1) In Scotland, since the start of the Coronavirus (Covid-19) lockdown in March 2020, the press and public have been excluded from the courts.

(2)The rules on ‘open justice’ demand that the courts are open to the press and public and therefore open to public scrutiny.

(3) The total exclusion of the press and public from Scottish courts was not necessary. It would have been possible to limit the number allowed in each court with social distancing and screening measures in place.

A Fair Trial Requires Public Courts.

‘Society depends on the courts to act as guardians of the rule of law…Who is to guard the guardians? In a democracy, where the exercise of public authority depends on the consent of the people governed, the answer must lie in the openness of the courts to public scrutiny[1].’

Introduction

  1. During the Covid-19 pandemic, the Scottish Courts and Tribunals Service (SCTS) banned the press and public from all court buildings. This is contrary to the principle of Open Justice. A total ban on the press and public was unnecessary. It would have been possible to place a limit on the number allowed in the viewing gallery of each court, with social distancing and screening measures in place.
  1. If affected, you can claim compensation. The failure of all solicitors, judges, prosecutors and court staff to disclose that hearings or trials held in private are unlawful, is civil and criminal fraud.
  1. This paper will start by briefly setting out the rules on Open Justice before explaining why any civil hearing or criminal trial held with the press and public excluded needs to be re-done.

Open Justice

  1. The Supreme Court has explained the rule on Open Justice: ‘It is a general principle of our constitutional law is that justice is administered by the courts in public, and is therefore open to public scrutiny,’ (A v BBC [2014] UKSC 25 at para. 23).
  1. There is a long line of judicial decisions, from the highest courts, that confirm the principle and rules of Open Justice. These cases state that trials and hearings must take place in open court with the press and public allowed to be present (Av BBC at paras. 23 to 41). The European Court of Human Rights has also confirmed the principle by stating that ‘The public character of proceedings protects litigants against the administration of justice in secret with no public scrutiny.’ (B and P v United Kingdom (2001) 34 EHRR 529, para 36).

Coronavirus: Was the exclusion of the press and public from the courts necessary?

  1. There seems to be no reason to exclude the press and public from the court buildings. Why was a limited number not allowed in? All courts have public galleries. A limited number allowed in each gallery with screening and social distancing in place would satisfy this requirement of Open Justice.
  1. Please note that Scotland’s judges excluded the press and public from the courts (judges control the SCTS). Judges have no business administering the court system. The Fair Trial Project has started a campaign on this problem that will run concurrently with the Open Justice Campaign.

What are the consequences of secret courts?

  1. This dangerously violates the rule of law and people’s human rights. All decisions and sentences made are unlawful.

What can I do about this?

  1. Please sign up for our free newsletter to keep up to date with this campaign. Please send us an email if this affects you.

[1] R v City of Westminster Magistrate’s Court [2013] QB 618, cited in A v BBC [2014] UKSC 25 at para. 23

A fully referenced paper is available for the Open Justice Campaign:

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