In February The Transparency and Open Justice Board published proposed key objectives to guide the Board’s work. These related to timely and effective access to information about cases, timely and effective access to core documents and effective access to hearings. The Board invited comments on the key objectives and The Academy has responded as follows;

Do you agree that these are the correct objectives? 

We support the principles of open justice and consider that objectives set out the goal of open justice.

Do you think there is something that has been missed from the objectives? If yes, what else do you think should be included?

We understand that the Key Objectives are the first stage of planned reform. They will be used, going forward, to guide the work undertaken by the Board and to identify areas where change might be made and to measure the outcomes of change. It is unclear how such outcomes will be measured and recorded. There appears to be no formal impact assessment which might have usefully addressed some of the positive and negative concerns.

We would suggest that the specifics of the objectives will need to be clarified prior to implementation. For example, what precisely is meant by timeliness? There is a tension between timeliness from an open justice point of view and the risks of cases being played out in public at the same time as in court.

There is some concern within the Expert Witness Community as to the possible negative impact and the potential for reducing the pool of quality expert witnesses available and that in some cases there could be safety concerns relating to both the experts and the use of their reports.

We note that it is suggested that the Courts and Tribunals in Scotland and Northern Ireland would also be encouraged to adopt the objectives with appropriate modifications. This would seem to be a sensible approach as consistency across jurisdictions is to be welcomed. It will also underline the importance of the key objectives particularly in making justice more accessible.

Although it is not directly answering the question we believe it is important to note that there are some concerns with regard to “open reporting” and “open documents”. It is, in our view, essential that open reporting should not in any way compromise those involved in the justice process.

The need for open justice needs to be balanced against the risks of witnesses and experts being discouraged from giving evidence by the knowledge that their statements will be published. This could open them up to professional and personal criticism that goes well beyond the current risk of judicial criticism.

We are concerned that in some cases it may limit the number of those giving evidence particularly in some areas such as paediatric medicine where the pool of willing experts is already diminishing.

Open documents. We understand the reasoning behind making documents available. However, as is stated in the explanatory notes there are important issues relating to the timing at which documents should be made available. It is important in the light of possible changes to CPR 5.4 that parties are not discouraged from litigating their disputes in England & Wales because of real or perceived concerns about exposing commercially or personally sensitive information.

It is, of course, a difficult balancing act to ensure that transparency and openness do not come with a higher burden in relation to costs. We would welcome further consultation with regard to the timings and procedures for accessing documents as this is fundamental in meeting the key objectives.