Sunday, 19 January 2014

Open Justice

Judges and juries have a solemn and difficult task. Their decisions can change lives. Over days, sometimes weeks, they carefully listen to, scrutinise and weigh evidence to determine whether allegations are proved and to give judgments and verdicts accordingly. No sooner have they done so than thousands of people who have not heard any of the evidence, take to their computers to condemn them for the decisions they have reached.

Court cases make great news stories. Trials, inquests and inquiries are packed with human interest and produce high drama, particularly suited to sating the appetite of our 24 hours rolling news and commentary.

A trial is opened or a verdict returned and the world is ready to voice its view. The legal process is adversarial so we can all take sides. Serious legal proceedings become a stage for heroes and villains to be cheered or jeered by a mocking audience. Strident opinions are given by those who have not seen the reactions of witnesses tested in cross-examination, who have not read court documents or heard submissions.

And that is a problem. For many, including many politicians, the legal system is worthy of vilification when it produces results they do not like. This jury's verdict is an injustice, that judge's sentence is unreasonable. The swell of instant opinion gives rise to a clamour for an instant fix. Just add another statute to the pile.

The fight for justice is a fight for a just process not for the particular outcome you happen to favour. Even the finest justice system will disappoint those who expect it to produce only the outcomes which they think are just. The purpose of the legal system is not to achieve this or that result but to deal with cases fairly, with "due process".

I too love the theatre of the court room. I too enjoy sharing opinions about court cases. This is not a plea for everyone who is not a lawyer to shut up and leave it to the professionals. Indeed many of those offering instant opinions on twitter are lawyers. Rather than closing down opinion, my plea is to promote more informed opinion by opening up justice to an even greater degree. The more knowledge and understanding, the less there will be fanaticism and foolishness. One of the great advantages of the jury system is the insight it affords all citizens into the court process. There are other measures which could also advance understanding, including the following.

Firstly, more court proceedings should be televised. This will help convey the reality of the court room, the nuances of a case, the difficulties in assessing evidence. And let's find a way properly and safely to photograph court proceedings so that the media can dispense with the need for those crayon drawings!

Secondly, sentencing comments as well as judgments in all cases including family and court of protection cases should be readily available (anonymised as necessary). At least there will then be no excuse for offering comment without knowledge of the relevant facts. Sir James Mumby has called for greater transparency and surely he is right.

Thirdly, we should build on the citizenship education of school students. This should include compulsory viewing of Twelve Angry Men!

For two years now I have been involved in running the Manchester heats of the Citizenship Foundation's Bar Mock Trial Competition. School students act as counsel, witnesses, ushers clerks and jury members in mock criminal trials before real judges in real court rooms. It gives them some idea of how the court system works. The difficulty of deciding who is lying and who is telling the truth is brought home. The importance of the burden and standard of proof is vividly demonstrated.

Fourthly, lawyers could listen more to others including those who become caught up in the legal system: victims of crime, witnesses, reporters, experts. It is not that lawyers are conservative, but we can be quite defensive. I am sure we could learn a great deal from other others about how to improve the justice system without letting go the fundamental values of the system which have developed over centuries. Perhaps if we listened to others then they would be more willing to listen to us.

A sound system of justice should not only be open it should thrive on openness.

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