Widespread coverage of the collapse of several rape (and other) trials shows the appetite for information when the justice system goes wrong.

The public may not fully understand the intricacies of the legal process, but they do care that it works. The silver lining to this particular cloud might be a better level of public debate about the tension between acceptability of a rush to judgment of those accused of sexual offences under the auspices of the #metoo or #webelieve movements, and the importance of due process – in particular the presumption of innocence. It is not only the wrongly accused who suffer as a result of failures in investigation and prosecution; genuine victims may be doubted if there is a perception that prosecution cannot be relied upon to present the full picture. As Lord Judge commented in an interview with The Times (20/01/18): ‘The recent examples in cases involving alleged sexual crime are alarming, both for all the individuals concerned and for public confidence in the administration of criminal justice generally. It is at least possible that from time to time juries, alarmed as everyone else by these cases, may wonder, even in an apparently strong case, whether they have been provided with all the admissible evidence. These events may reduce the prospects of conviction even when the allegation is genuine.’

If we are to repair public trust and confidence in the justice system, being able to talk openly about why it has gone wrong and what is being done to fix it is absolutely critical. Fortunately, that seems to be happening in relation to the disclosure crisis, and the Bar is playing its part in that through legal blogging, giving interviews and examples such as the Criminal Bar Association entering talks with the Director for Public Prosecutions and others about what should be done. But where courts and tribunals operate in private or there are restrictions on the publication of information, the task of maintaining or repairing public trust and confidence is much harder compared with criminal courts where justice is largely open to view, if not fully transparent due to complexity of language or process.

The John Worboys debate

For example, sensible debate around the Parole Board’s decision to release rapist John Worboys on parole has been hampered by the inability of the Parole Board to publish its reasons (being forbidden to do so by r 25 of the Parole Board Rules 2016). People are legitimately concerned and confused as to how it could have reached such a conclusion. Explanations of how the system ought to work or usually operates are of limited help without an understanding of the particular evidence taken into account. Moreover, there are concerns that some of the victims were not properly consulted or invited to make representations. Some newspapers have published leaked accounts of the evidence, but as such accounts come from unnamed sources apparently motivated by their view that something has gone wrong, it is difficult to place much reliance upon them.

To his credit, Chair of the Parole Board, Professor Nick Hardwick has acknowledged the genuine public interest in disclosure in this case, and more generally the need for greater transparency of Parole Board work. He has provided as much information as the law permits him, and has called for reform of the rules so that in future things might be more transparent. The public outcry arising from the Worboys case may lead to some change in the substantive law in this area, although we do not know precisely what form it will take. Following his decision not to seek judicial review of the board’s decision, the Lord Chancellor David Gauke in a statement to Parliament, reiterated his plan for a thorough review of law, policy and procedure relating to parole decisions.

At the time of writing a group of victims have just been granted permission to proceed with a judicial review of the Parole Board’s decision, unopposed by the Parole Board. It remains to be seen whether this will give rise to greater transparency in the individual case, but the Lord Chancellor’s response is a powerful illustration of the impact that public consternation can have upon law reform. Public debate is not just an end in itself, it can drive changes in the law.

Transparency reform; not easy, not fast

In the Court of Protection, a long running pilot whereby hearings are in public (with reporting restrictions protecting the identity of the subject of proceedings) demonstrates that even where the subject matter is the intimate private circumstances of vulnerable individuals, it is possible to be more transparent. Although the pilot does not appear to have led to a significant upturn in the levels of press attendance or coverage of the workings of the Court of Protection, this should not be treated as an indication of failure. The point of such transparency reform is to enable the public to see and understand what is done in their name, and to allow legitimate public debate about where those systems are not working as they ought.

The problem is probably at its most acute in respect of family courts, where proceedings are almost always held in private and judgments are still not routinely published. Family courts have some of the most draconian civil powers, including to take a child away and sever all contact with parents and wider family. It is entirely natural that those affected may complain of secrecy and injustice, and entirely unsurprising that this leads to mistrust of the family justice system by the wider public. Those working within the system have traditionally dismissed complaints of secrecy by recasting it as privacy, without fully grasping that the legitimate purpose of privacy of individuals looks very much like secrecy from the outside and leaves unresolved issues of public trust and confidence.

The President of the Family Division attempted to tackle this through guidance issued in 2014 aimed at increasing the number of family court judgments published. This led to a modest increase in publication rates, but raised significant practical and resource implications. Research suggests that enthusiasm for publication is diminished by the need properly to anonymise judgments to protect children and vulnerable adults and the risks of jigsaw identification (J Doughty, A Twaite and P Magrath, Transparency through publication of family court judgments, Cardiff University, 2017).

Further reforms proposed in late 2014 (that would primarily have given journalists access to better information to encourage and facilitate reporting of cases) have not been progressed and there remain real issues, particularly in the field of public law proceedings where the state intervenes to remove children from their parents, often ultimately placing them for adoption contrary to their parents’ wishes. Fearful and suspicious parents are being asked to acknowledge significant failures in their parenting and make radical changes in their lives within a highly pressurized timeframe. The temptation to shut down, reject help and deny everything must be greater still when internet research finds stories of the ‘secret corrupt family court’ which will take your child whatever you do. Public trust and confidence really does matter here: it affects the decisions made by litigants and consequently the decisions made by judges – with life-long consequences.

Perception of how the justice system is working will affect the decisions of victims of sexual assaults about whether to report or to support a prosecution, and in the family court whether a victim is brave enough to seek findings regarding assaults in order to justify resisting contact between a child and the perpetrator. For those accused (wrongly or otherwise) it may make the difference between pursuing their application for contact and walking away in the belief that the odds are impossibly stacked against you.

Failures in the Poppi Worthington case

Although the case of Poppi Worthington has not led to criminal proceedings – the police were much criticised for failing to preserve vital evidence essential to any prosecution, but the CPS is reported to be reviewing the no charge decision for a second time – press interest in the circumstances of her death in 2012, in particular the police failures, was sustained. The Times claims, with some force, that ‘Poppi Worthington’s death could still be veiled in secrecy if The Times and other media groups had not mounted legal challenges to expose details of the case.’ Although there was necessary delay in publication of some family court judgments pending charging decisions in order to avoid prejudicing any criminal proceedings, the press successfully applied to have access to key material. They were permitted to publish daily reports on the progress of the re-hearing about Poppi’s death, in light of the high levels of public interest, which was unprecedented in family cases held in private. As the Coroner’s verdict was published on the cause of Poppi’s death in January 2018, media coverage built on that earlier reporting. There are now calls for a public inquiry into the failures in the case, although that seems unlikely to be actioned until a further CPS review has concluded.

All this depends, of course, on editors being able and willing to cover such cases. Court reporting is in decline as national and local media adapt to a radically different business environment. However, there is encouraging news of proposals to restore the quality and volume of local media coverage of cases in the crown and magistrates’ courts, following a Society of Editors seminar (ominously titled ‘Crisis in our Courts’) held in January 2018. Two working parties have been established to engage with HMCTS.

Simply dumping information in the public domain is not the answer, particularly when levels of legal literacy are generally low. BAILII is a valuable resource, and the judiciary increasingly publishes sentencing remarks and judgments on judiciary.gov.uk, but neither resource in themselves equates to transparency.

Members of the public value clear explanations of the law and process, eg those offered by the Secret Barrister, Matthew Scott and many others – and welcome being signposted to judgments. There are also good examples of mainstream media taking time to explain the context of legal stories, but this is very inconsistent.

When Spectator Editor Fraser Nelson recently complained about the ‘confusing fog’ of law on driving with mobile phones, having received a conviction for the same, Matthew Scott attempted to summarise the law. His conclusion was that the law was incomprehensible and confusing, compounded by the fact that the relevant regulations setting out the law in this area are not easily accessible to the public via legislation.gov.uk. That both an experienced lawyer and an intelligent member of the public found this area impossible to navigate and explain with any clarity, illustrates how transparency is as much dependent upon the language of our laws, as it is to do with court process and privacy. Ignorance of the law is no defence, but if we expect the public to be both able and willing to adhere to it, we have to make it comprehensible.

Public clamour for change may not always lead to wise or durable law reform – ‘something must be done’ legislation can add little apart from appease criticism of government (of the many examples, see Part II of the never enacted Children Schools & Families Act 2010 relating to reporting of family court proceedings). However, it is of vital importance that the public are able to participate in debates about the laws that regulate their behaviour and keep them safe. Transparency really matters in matters of justice.

Contributor Lucy Reed is a barrister at St John’s Chambers and Chair of The Transparency Project, a charity whose aims are to make family justice clearer.