Does secrecy matter?
People are naturally curious, nosy even, and that curiosity extends to anything that is hidden: the ‘occult’ is so called because it means something hidden, whether from your neighbours, the authorities or the church – especially the mediaeval church if a person wanted to cavort in rituals outside the proscribed rites. Being a heretic – i.e. somebody who took a view different to that permitted by the church would lead to an unpleasant personal appearance before the Inquisition, a body who found that the simplest solution to disagreement was judicial murder – losing an argument meant losing your life and with appeals to logic usually being denied. Keeping order was seen as more important than the merits of any alternative interpretation or personal freedom. Nobody could have confidence in an unaccountable tribunal making decisions.
Hopefully, the people of England and Wales, i.e. those governed by the ‘English’ legal system in the 21st Century cannot expect to be carried off to a dungeon for the jumpiest of kangaroo courts overseen by fearsome shady characters, but when things are done in secret, the impression is that due process will not be followed and the daylight of fairness replaced by the flickering candles of fickle fiends.
Things that are hidden arouse curiosity and in the case of decisions by ‘the Establishment’ following on from secret ‘justice’ it is natural that there is suspicion that due process has not been followed and that there must be unfairness at the core of the system. Bearing in mind that in so many parts of the world, despots cling on to power through illegal means and the use of ‘secret police’ who are generally unaccountable is widespread, in the freer societies, justice must not just be done but must be seen to be done so that there is accountability.
What about criminal cases?
Almost all criminal trials are open to the public and a witness who does not give evidence in sight of the public gallery is a rarity. Each stage of a criminal trial operates under ‘habeas corpus’ with both the accused, witnesses and the professionals – advocates, clerks and judges – all being in plain sight.
Why are family proceedings held in private?
It is generally considered unfair for personal information to be given out by the authorities and ‘Data Protection’ has become synonymous with confidentiality. Private individuals are happy to share their lives using social media – the socials – whether that be by Instagram/whatsapp/tiktok or Facebook among the various electronic ways of sharing information.
Despite lives being lived out on the socials #livingmybestlife when it comes to legal proceedings, there is supposed to be a black hole surrounding certain types of court proceedings and processes: juries must surrender their smartphones before taking part in jury service and the outcomes cannot be reported. Even when cases were supposedly made anonymous, the details can often be found. A study was undertaken in which supposedly anonymous case details were given to savvy youngsters and in most cases, the young people could break through the anonymity and discover a great deal about a supposedly ‘anonymous’ situation.
Allowing even some details does mean that it is often possible for people to piece together who was involved in the case which is not what is meant to happen when only restricted details are revealed.
Cases can raise strong emotions and if a particular social services department, children’s home or school is identified, those people who feel strongly may take retributive action against who they think stands accused: when it comes to lynch mobs and vigilantes, the ‘no smoke without fire’ approach usually prevails over the patient evaluation of evidence. The legal system is supposed to give people accused ‘due process’ and replace the angry mob, but people are inclined to leak confidential details and it is rare for a police officer to reflect that a suspect they have ‘caught’ may actually not be guilty. That is natural, but it does cloud fairness and is part of the reason for the formation of the Crown Prosecution Service – a group of people who assess the strength of the case before a criminal case goes to court. police officers are human too and are no happier with dangerous people walking around being a threat to the vulnerable, such as the elderly or children. It is no surprise that the police service leaks information such as allegations of cruelty. They are the ones who have had to see the victims and find the probable perpetrators – that ‘men who chase monsters’ adage has a point. Traumatised first responders are also indirect ‘victims’ and victims do not find it easy to keep a cool head.
So – the traditional approach in family cases has been to keep a lid on situations through restricting knowledge to those who need to have it and only to put in the public domain what is really necessary. Reporting and unnecessary disclosure have been restricted and so ‘privacy’ has not appeared too different to ‘secrecy’.
To people who may know every breakfast of their social contacts, such a large-scale news blackout seems strange and suggests that something is going on that THEY do not want people to know about.
That raises honest concerns that what is happening is not in accordance with the law or proper expectations and reduces confidence in the legal system.
Are divorce finance cases heard in private?
People are already allowed to attend court hearings, but what is said in court remains confidential for the most part.
Apart from amongst the super-rich who may routinely litigate their cases in court without heeding the expense of doing so, most people with financial disputes will negotiate on the advice of their lawyers and avoid the often eye-watering expense of a contested final hearing. Along the way towards that, there will be hearings about evidence and the last stage before a final hearing is a Financial Dispute Resolution Hearing at which the judge gives a private assessment of what is most likely to be the outcome based on the evidence that they have seen, which is usually fairly complete. If those involved do not reach an agreement, taking into account the assessment of that judge, then that judge, who has managed discussions about whether a deal can be reached, not only is not allowed to hear the case, but those discussions which have involved a measure of compromise are kept secret so that they do not influence the final judge.
Although in finance cases Judges had been expressing informal opinions on the available evidence for some time in the hope that people would not contest weak positions to their detriment, the format of the FDR system is in the Family Proceedings Rules (in particular those of 2010). Having a formal system under which a judge encourages settlement and drives home the expense of litigating rather than negotiating, has reduced the number of unnecessary final hearings. To that degree, they have been a qualified success and if the public or reporters were allowed to be in those hearings, it would inhibit the parties’ willingness to compromise and discuss settlements. The whole foundation for free negotiation is that it is private and concessions can be contemplated which might be withdrawn if there is no ‘take’ for that ‘give’. Privacy can be positive as that element of the process demonstrates and it would be difficult to justify those financial negotiations losing privacy ‘in the public interest’ if the public interest is primarily about confidence in judicial fairness.
Those FDR hearings are part of a process that generally is open to scrutiny and the privacy – not ‘secrecy’ of such a hearing within that process does not undermine confidence.
Whether what happens in court can be reported is a different matter to whether they can be observed, but if nobody can tell people what happened, then that non-secrecy does not really constitute openness.
Are children cases heard in secret?
Children cases are about the welfare of children, often in the care system or who might go into that system. Each case is very personal to the young person concerned and often what is to be discussed about needs, neglect, active abuse, medical circumstances or schooling are the kind of details that most people would consider ‘confidential’ or otherwise not something to be paraded for the entertainment of the prurient. The care system is engaged when there is ‘significant risk of harm’ to the young person and so most of the time, the allegations and circumstances surrounding that your person are unpleasant. Would it be fair for details of a child’s abuse to be made public? Most people would say not – they are not adults and cannot legally make that decision for themselves.
What would be the consequences for allegations about people to be given an unrestricted airing? Some outraged members of the public might take it upon themselves to harm or threaten such accused people and – as allegations are not always true – be persecuted despite being innocent. The publication of details of such alleged harm rightly bring anger and in a civil society it is for the courts to determine the facts and make decisions – initially about that child’s welfare, but perhaps later in the criminal courts which are open.
However, whilst there are reasons why privacy protects the children, the level of restriction on what may be reported may not be as helpful to society as openness could be. If the decisions of particular local authorities and social services departments were better known and understood, perhaps lessons could be learned and the scale of various problems understood.
Why is Sir Andrew McFarlane involved in looking at ‘secrecy’ / transparency?
The head of the family courts – the President of the Family Division – has been concerned that the degree of privacy in the family courts has made them look as if legal decisions are being made ‘behind closed doors’ and effectively ‘in secret’ which undermines confidence that decisions are being made fairly. That senior judge, Sir Andrew McFarlane, issued a report looking at privacy in the court and what changes could be introduced to improve public confidence at the same time as not risking it impacting upon vulnerable young people.
What is Open Justice and the Transparency Reporting Project?
The most recent development in opening up the courts to more scrutiny is the Transparency Reporting Project which has been launched in January 2023 in the courts in the Midlands.
What they are aiming to do is to see if more openness can be achieved without negative consequences for the families concerned.
The change to rules about reporting was announced by Mrs Justice Lieven, liaison judge for the Midlands Circuit on 18th January 2023
What is the official line from judges about changes to the rules about reporting cases?
In announcing the changes on behalf of the judiciary, the Honourable Mrs Justice Lieven is reported to have said:
’This is fundamentally about two things…promoting public confidence in the family justice system and promoting accountability.’
She went on to explain:
I would not be giving anything away or speaking out of turn to say [there has been] quite a lot of material in the last few years that has undermined public confidence in the family divisional justice system. Because we usually conduct our business behind closed doors effectively and journalists cannot report what is said it has allowed suspicion to grow. The only cases that can be reported upon are those that go to the Court of Appeal where something goes wrong so we have an embedded bias.’
The Judge meant that because something must have gone very badly wrong to make it worth the Court of Appeal hearing the case, only cases which had big problems in the process and/or raised unusual legal issues had previously been heard at a high enough level to be reported: cases that had been resolved in a satisfactory way with no serious concerns about the correctness of the process or on a clear understanding of the applicable law simply did not get reported giving the perception that things were always going wrong.
She expressed the view that having journalists in court would ‘improve standards’ as
‘Everybody behaves better if they think journalists are reporting on them.’
‘Everybody’ might be over-stating the case, but the judge meant that many people who were accountable would do well to do so in future.
Will all courts be open to reporting in the pilot scheme?
The Transparency Reporting Pilot will allow reporting only of certain cases and the pilot will begin on 30 January in Leeds, Carlisle, and Cardiff courts.
Why are there still restrictions on reporting?
The Judge further explained that:
This is not about allowing voyeuristic interest. The last thing we need is to interfere with the welfare of the kids or interfering with personal or professional relationships that those kids need. This is absolutely not about naming and shaming, this is about opening up the system.
The transparency order will also allow certain documents to be released to the press which previously would have been kept private.
Journalists will be allowed to speak to people providing anonymity is preserved in circumstances where that would previously have amounted to ‘contempt of court’ and expose people to possible punishment.
What do lawyers think about more reporting?
On behalf of solicitors Law Society spokesperson said:
Transparency and open justice are important to help the public understand how the law works and how decisions are made. Provided it’s done in a sensitive manner, such reporting will be a valuable tool in re-educating the public. It can also raise awareness of what the rule of law means and why it’s important.
We are pleased to see the pilot will not allow journalists to identify families. This sensitivity is important, particularly when children are involved.
What do lobbying groups think of the change?
A spokesperson for Family Rights Group, Angela Frazer-Wicks, speaking to the Guardian is reported to have welcomed the pilot, greater transparency and the ability for people to discuss things with journalists said:
I know from my own experience the sheer frustration at the lack of transparency or accountability for the things being done…and not having anyone I could speak to, I felt like I had no voice.
She shared the Judges’ belief that having journalists present would add accountability.
What happens after the pilot scheme of the Transparency Project?
Obviously with a pilot, what happens is monitored and professionals – including academics – will see what can be learned and whether the change in rules helps or hinders. If problems about identifying participants have interfered with the process or the welfare of children has been harmed, then there will need to be a re-think as to the terms of those rules before possibly putting similar rules in place across more courts. The likelihood is always that if something has been allowed to be tried out, then the lessons from that first experiment will be used to modify such a scheme and something going in that direction is likely to be adopted.
Success would be for people to have more confidence that decisions are being made properly, the professionals involved are seen to do a good job and under more scrutiny the standards improve for the benefit of those in the system.
How long it will take to evaluate that properly and bring a responsible widening of reporting is not yet known.