Media plays crucial role in ensuring open justice
For all to be equal before the law, we must make sure the public is kept fully informed, writes Olivia O’Kane
THE law imputes knowledge of all laws to all persons. The legal doctrine ignorantia juris haud excusat assumes that the law has been properly promulgated — published and distributed. If ignorance of the law is a legal principle holding that a person who is unaware of a law may not escape liability for violating that law, then public understanding of those laws is paramount.
This means judges and lawyers owe a duty to the public, to not only ensure that the law can be understood but that it is also properly accessible.
Open justice is a fundamental principle to all democracies. It is a principle that is subject only to narrow exceptions to ensure public scrutiny of the operation of our justice system.
As Lord Shaw in Scott v Scott 1913 AC, explained, secrecy can be sinister and there should be a working presumption against concealment: “Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion, and surest of all guards against improbity. It keeps the judge himself while trying under trial.”
The first aspect of open justice involves the public having access into the courtroom and the second involves the press communicating what goes on in the courtroom. To ensure that both aspects operate effectively in modern society, the law must adapt and flex so that the public is kept fully informed.
No one is more entitled than a member of the general public to see for his or herself that justice is being done. The media is the eyes and ears of the public and has a duty to impart information. It has expertise in court reporting and can bring different perspectives other than the parties involved in the cases, and it is well placed to represent the wider public interest in open justice on behalf of the public.
A journalist’s right to access court documents referred to in open court would therefore enhance the accuracy of court reports, as well as apply scrutiny of those proceedings.
Just as society has changed pace, so too has the legal system. Many documents are filed into court electronically to save time, such as written submissions, affidavits, skeleton arguments or discoverable documents. Evidence can now be electronic or presented as CCTV footage or text-based communications. Crimes are also changing; fraud cases can involve complex e-commerce-type facts and crimes can occur from software-based viruses, for example.
There is an increasing trend of a modern paper-based approach to legal proceedings. Journalists having access to such documentation is therefore directly relevant to promoting the principle of open justice and ensuring the public understands the justice system.
To ensure that the media effectively communicates what is going on in our courts, the importance of access to public court documents cannot be underestimated. LJ Toulson in R (GNML) v Westminster [2012] EWCA, acknowledged that access to these documents was part of open justice: “In a case where documents have been placed before a judge and referred to in the course of proceedings, in my judgment the default position should be that access should be permitted on the open justice principle; and where access is sought for a proper journalistic purpose, the case for allowing it will be particularly strong.”
Ensuring access to the me- dia brings matters of public interest to public attention and provides a better understanding of serious issues.
In pursuit of this very objective, the relevant organs of Northern Ireland’s justice system have been working with the media to launch a final working media protocol which is hoped will be signed off before the end of this year.
Modern norms have changed the extent to which public information is circulated and understood, so bringing the courtroom into our living rooms by providing detail and accuracy is in the public interest. The American documentary series Making A Murderer resulted in an overwhelming reaction from millions of viewers worldwide, debating issues regarding the justice system. This is raw justice in action. Cameras have operated in murder trials in Scotland, and have been brought into English courts.
In considering the principle of open justice, Northern Ireland’s lord chief justice remarked in Re Carlin [2013] NIQB: “Any restriction on public access to information about what happens in the justice system must be kept to the absolute minimum.”
The law protects our citizens and our communities and it upholds our rights as citizens against abuses by others. All are equal before the law and are entitled without any discrimination to equal protection of the law. To understand our rights and protections, the public must be fully informed about their justice system. The media in accessing public court material is the conduit to open justice and in ensuring that the rule of law is upheld and is being seen to be done.