Courts need to expand view of open justice
Four Courts: Effective public scrutiny of courts requires both a happenstance audience and the hope that such public scrutinisers have some knowledge of fair proceedings
Open court facilitates public scrutiny of courts, in the words of Jeremy Bentham, “to keep the judge while trying, under trial”. However, the common view that open court is a policy solely to aid a defendant in any particular case is somewhat blinkered. Effective public scrutiny of courts requires both a happenstance audience and the hope that such public scrutinisers have some knowledge of fair proceedings.
Open justice requires that those on trial have the benefit not just of public scrutinisers at their own trials, but also that such scrutinisers can tap into the collective wisdom of what passes for fairness in similar cases, which is assisted significantly by accessible published outcomes of similar cases. Further, as public attendance is voluntary, knowledge that all cases are generally open is essential to ensure a regular attendance. If people know that they may be refused entry to a court, this makes them less likely to try to attend.
Open court serves democracy as much as it serves justice. It allows voters to review the outcomes of current laws and to advocate to their representatives when they believe certain laws need to be reformed. This is an essential feature of a flourishing democracy. Thus, publication of court cases in an accessible form is equally if not more important than public pronouncement of decisions; only the latter is required by the European Convention of Human Rights.
Open court protects those on trial not just from unfair application of the law, but crucially, in the long term, from unfair laws – a vision also held by Bentham. However, this big-picture view of open court seems to be lost on the European Court of Human Rights. While Article 6 (ECHR) demands that trials or civil actions are held in public, the Court has repeatedly interpreted this to actually mean that no violation of the public hearing requirement will be declared if someone fails to demand open court where a court is customarily closed.
This conditionality is problematic on several levels. First, a party may be concerned that seeking to invoke her right to open court might prejudice judges against her. Second, by requiring that open court be demanded, the effective benefit is diminished as most persons will not so demand, and the wisdom of comparative analysis is unavailable, as is the likely participation of the public due to the uncertainty around their right of attendance. Third, additional costs and delay may result if hearings need to be rescheduled.