Civil Procedure Rule Committee propose major curtailment of Open Justice

The CPRC have launched what I’m describing as “one of the biggest attacks on the principle of open justice in recent times” as they seek to remove the public from public hearings held remotely.

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As Lord Hewart CJ famously declared, in R v Sussex Magistrates, “… it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”.

Paragraph 1 – Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38 (29 July 2019)

Wise words indeed from Lady Hale in the 2019 Supreme Court case of Cape v Dring. The case reaffirmed the view that the purpose of Open Justice is “to enable the public to understand and scrutinise the justice system “[37]. To do this we of course need to be able to view the hearings.

It is with some bewilderment therefore that just three years later the Civil Procedure Rule Committee have introduced a mechanism that effectively removes the right of the public to access remote hearings.

The Civil Procedure Rule Committee “was set up under the Civil Procedure Act 1997 to make rules of court for the Civil Division of the Court of Appeal, the High Court and the County Court.” Its current chair is Sir Geoffrey Vos, Master of the Rolls.

The mouseinthecourt has been monitoring their minutes and has compiled a log of anything Open Justice related: “Open Justice at the Rule Committee“.

Practice Direction 51Y

Practice Direction 51Y was added at the start of the Covid-19 Pandemic when physical access to Court Rooms was restricted. It was an urgent addition, and introduced without wider consultation.

It contained a provision that: “where a media representative is able to access proceedings remotely while they are taking place, they will be public proceedings“.

This was always a problematic clause as it contrasted with the provision of CRP39.2 which included a test of necessity to remove the public nature of the hearing.

(1) The general rule is that a hearing is to be in public. A hearing may not be held in private, irrespective of the parties’ consent, unless and to the extent that the court decides that it must be held in private, applying the provisions of paragraph (3).
(3) A hearing, or any part of it, must be held in private if, and only to the extent that … it is necessary to sit in private to secure the proper administration of justice
CPR39.2 (1-3)

The test of necessity is absolute – it’s the hearing ‘must be held in private‘ not ‘could be held in private‘.

Shortly after PD51Y was introduced, the minutes from the CCRC reveal it was done so “to ensure the Open Justice principle is not compromised“.

An attack on Open Justice

An update, published in the past few weeks, must surely be one of the biggest attacks on the principle of Open Justice in recent times.

The update removes all but this one sentence from PD51Y:
“Where a media representative is able to access proceedings remotely while they are taking place, they will be public proceedings.“

The minutes reveal that the CPRC noted that the rest of PD51Y would lapse (because it had always been intended as a temporary measure to deal with remote hearings during the pandemic) but wanted to put this particular rule on:
“a permanent footing in the rules (perhaps through an amendment to Part 39)“.

The notion that just because a press-card-holder could view, not is viewing, but could view a hearing, should be considered an outrageous attempt to purport that a hearing is being held in public.

This update was waved through without public consultation or fanfare, and was approved in a private meeting of the CPRC on 4th March 2022 with Lord Justice Birss, Deputy Head of Civil Justice at the chair.

“The opposite of public justice is of course the administration of justice in private and in secret, behind closed doors, hidden from the view of the public and the press and sheltered from public accountability.“

Para 32 – Storer v British Gas Plc [2000] EWCA Civ B528 (25 February 2000)

What about 85A of The Courts Act?

The CPRC minutes of 4 March 2022 explain that “the other provisions of PD 51Y do not need to be continued” citing the insertion of the “new section 85A into the Courts Act 2003“. One relevant provision in 85A reads:

Enabling the public to see and hear proceedings
(1)If the court directs that proceedings are to be conducted wholly as video proceedings, the court—
(a)may direct that the proceedings are to be broadcast (in the manner specified in the direction) for the purpose of enabling members of the public to see and hear the proceedings;
(b)may direct that a recording of the proceedings is to be made (in the manner specified in the direction) for the purpose of enabling the court to keep an audio-visual record of the proceedings.
Section 85A Courts Act 2003

The notion that the test of necessity can be removed in favour of a wishy-washy phrasing of “may direct” must be challenged by those that wish to ensure our courts remain open to observation.

Challenge

These changes, by definition, will only affect members of the public, who have limited resources and appetite to mount a challenge.

They won’t affect members of the National Union of Journalists and neither will it affect those who can rely on the assistance of the Media Lawyers Association, an organisation who “intervenes selectively in legal proceedings where principles relating to open justice are at stake“.

The tension between the contents of Practice Direction and whether it can override a Common Law right to access hearings might be something the courts have to consider at some point. Which member of the public steps up and faces the potentially ruinous risk of costs remains to be seen.

Access to a court building for the purpose of attending a public hearing is a matter of legal right…there was no need to enact legislation to confer a right of admission on members of the public because the right of the public to be present at court hearings is an ancient common law right.

Para 28 – O’Connor & Anor, R (on the application of) v Crown Prosecution Service & Anor [2016] EWHC 2792 (Admin) (04 November 2016)

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PD51Y – As Introduced

1. This practice direction, made under rule 51.2 of the Civil Procedure Rules (“CPR”), makes provision in relation to audio or video hearings. It ceases to have effect on the date on which the Coronavirus Act 2020 ceases to have effect in accordance with section 75 of that Act.
2. During the period in which this Direction is in force, where the court directs that proceedings are to be conducted wholly as video or audio proceedings and it is not practicable for the hearing to be broadcast in a court building, the court may direct that the hearing must take place in private where it is necessary to do so to secure the proper administration of justice.
3. Where a media representative is able to access proceedings remotely while they are taking place, they will be public proceedings. In such circumstances it will not be necessary to make an order under paragraph 2 and such an order may not be made.
4. Any hearing held in private under paragraph 2 must be recorded, where that is practicable, in a manner directed by the court. Where authorised under s.32 of the Crime and Courts Act 2013 or s.85A of the Courts Act 2003 (as inserted by the Coronavirus Act 2020), the court may direct the hearing to be video recorded, otherwise the hearing must be audio recorded. On the application of any person, any recording so made is to be accessed in a court building, with the consent of the court.
   PD51Y Dated 24th March 2020

PD51Y – As of 15/05/2022

1. This practice direction, made under rule 51.2 of the Civil Procedure Rules (“CPR”), makes provision in relation to audio or video hearings. With the exception of the first sentence of paragraph 3, it ceases to have effect on the date on which the Coronavirus Act 2020 ceases to have effect in accordance with section 89 of that Act. The first sentence of paragraph 3 ceases to have effect on 25 March 2023.
2. During the period in which this Direction is in force, where the court directs that proceedings are to be conducted wholly as video or audio proceedings and it is not practicable for the hearing to be broadcast in a court building, the court may direct that the hearing must take place in private where it is necessary to do so to secure the proper administration of justice.
3. Where a media representative is able to access proceedings remotely while they are taking place, they will be public proceedings. In such circumstances it will not be necessary to make an order under paragraph 2 and such an order may not be made.
4. Any hearing held in private under paragraph 2 must be recorded, where that is practicable, in a manner directed by the court. Where authorised under s.32 of the Crime and Courts Act 2013 or s.85A of the Courts Act 2003 (as inserted by the Coronavirus Act 2020), the court may direct the hearing to be video recorded, otherwise the hearing must be audio recorded. On the application of any person, any recording so made is to be accessed in a court building, with the consent of the court.
   PD51Y – Current Version

CPRC Minutes – 4th March 2022

32. The Chair explained that PD 51Y (Video or Audio Hearings During Coronavirus Pandemic) ceases to have effect on the date on which the Coronavirus Act 2020 ceases to have effect. It is, therefore, due to expire on 25 March 2022.
33. The first sentence of paragraph 3 of PD 51Y , reads, “Where a media representative is able to access proceedings remotely while they are taking place, they will be public proceedings.” It is a useful clarifying provision which has facilitated the use of remote hearings in civil justice. Its introduction played a key role in the uptake of remote hearings at the start of the pandemic. Remote hearings have proved themselves to be very useful and, in many cases, to improve access to justice.
34. It was proposed to amend PD 51Y to alter the expiry date for the first sentence of paragraph 3, decoupling it from the expiration of the 2020 Act and setting a fixed date for its expiry 12 months later. Such an amendment is necessary as it will take some time to put paragraph 3 on a permanent footing in the rules (perhaps through an amendment to Part 39) and allow what has proved to be a useful and important provision to continue in operation after 24th March, giving time to develop a rule proposal, consult the MoJ and consider related rules changes.
35. It was NOTED that the other provisions of PD 51Y do not need to be continued, given that the Police, Crime, Sentencing and Courts Bill was expected to insert a new section 85A into the Courts Act 2003.
36. It was RESOLVED to amend PD 51Y to extend the expiry date for the first sentence of paragraph 3 (decoupling it from the expiration of the Coronavirus Act 2020) by 12 months, until 25th March 2023. Action: Sub-Committee, Drafting Lawyers and Secretariat to incorporate into urgent PD Update.
    Minutes from the CPRC Meeting 4th March 2022