There are few more commonly cited legal maxims than the one expressed by Lord Chief Justice Hewart in 1924, when he said: “It is not merely of some importance, but of fundamental importance that justice should not only be done, but should be manifestly and undoubtedly seen to be done”.
These are stirring words indeed, but how is this aim best achieved and, just as crucial, why?
The government clearly think it important that they embrace the principle of open justice – putting to one side the use of secret courts – and one example of an attempt at such an embrace is the decision to allow television cameras to record proceedings in the Court of Appeal for the first time in England and Wales. The Courts Minister Shailesh Vara justified this move by wheeling out the old adage: “justice must be seen to be done”.
Some are more sceptical of the idea of the cameras in court. Labour peer and leading barrister, Baroness Helena Kennedy QC, for example, argues that cameras in court are a threat to justice because the TV companies who have lobbied for this development are more concerned with drama and profit than transparency and justice.
Both positions seem to me to have some merit, and the argument generally embodies the difficulty involved in preserving what is valuable about cherished and successful institutions while at the same time renewing these institutions so that they are relevant and sustainable today and into the future. Our legal system is not the only institution that has to walk this tightrope.
I suppose that we will just have to wait and see what impact the recording of proceedings in court has, and indeed if the government evaluates and makes public these outcomes. But in order to evaluate an intervention you need to have some idea about what it is you are trying to achieve by it. If the point is simply openness for its own sake, then the recording of proceedings in court is by definition a success. But what if justice being seen to be done is also valuable for another reason?
It seems to me that at least part of the justification for the claim that justice must be seen to be done rests on the idea that law is in a sense about trust. Our legal system provides us with a mechanism for resolving disputes, but if people don’t trust and have confidence in the system they will be generally dissatisfied with the judgements that are issued. Even worse, they may decide to not to engage with the system at all and instead resolve their disputes in a less reasonable way.
In this sense, then, the legal system is like a currency: its value depends on the confidence of those who use it. However desirable it may be according to other standards or measures, a legal system is made less desirable if those who are asked to use it and accept its judgements lack confidence in it. This is why it is such a problem when a section of the community gets the impression that the administration of justice is biased against them, and even worse if they have good reason to come to this conclusion.
Openness is a way of engendering trust and confidence in our legal system a) because it suggests that it has nothing to hide; b) because it suggests that any problems that do exist can be identified and addressed; and c) because they UK justice system is generally rigorous and fair, and openness allows the public to see this.
Introducing cameras in court is not the only way to open up the justice system, however. Another way is to educate young people how the legal system works by enabling them to actively engage with it and the legal professionals who work within it. Over the past few months more than 2000 young people across England, Wales, Scotland and Northern Ireland have been learning about our criminal justice system and connecting with those involved in the administration of justice through their participation in the Citizenship Foundation’s Bar National Mock Trial Competition.
The competition involves teams of young people aged 15-18 from schools across the UK presenting opposing sides of specially written criminal cases in real crown courts. The students take on the roles of barristers, witnesses, court staff and jurors, they are aided in their preparations for the competition by legal professionals, and their performances are judged by real senior barristers and judges. The 16 regional heats of the competition took place across the final three Saturday’s in November, and the winners of these heats are going on to compete in the national final at Cardiff Crown Court on Saturday 22nd March 2014.
This method of ensuring that justice is seen to be done aims to ensure that the young people involved actually understand and engage with the legal system, as opposed to just passively observing it. After participating in the competition, the young people involved consistently report that they have more confidence in the individuals and institutions involved in the administration of justice. When invited to have a long, hard look at the justice system in the UK, it seems that young people tend to like what they see.