THERE are several political issues which constantly bubble away, sometimes a hum in the background and sometimes boiling over when triggered by the prevailing news narrative.

One of the most prominent of these perennial themes might loosely be described as your right to know. The right to be told what individuals, organisations and institutions required to act in the public interest are up to, why and with what authority. The list includes politicians, public servants, the government and especially those who hold executive power, quangos, consultants and others funded by the taxpayer.

Key words are transparency, openness, honesty and accountability, essential characteristics of a healthy democracy. The right to know must be complemented by accessible and affordable channels to challenge decisions and deliver remedies.

Despite some statutory safeguards, such as the freedom of information law and the right to appeal against non-disclosure to the Information Commissioner, there remains a widespread feeling that government is too closed and a culture of secrecy permeates the bureaucratic machine. It is often left to backbenchers acting alone or as members of Scrutiny, the press and increasingly the public via social media to exert sufficient pressure to get access to the facts.

One recent trigger for the public mood to boil over was in the early stages of the pandemic, when the government held back information relating to infections, deaths and hospital admissions. In the newsroom, we talked about how the public were getting a feel for how hard it can be to get information which should be freely available from public servants (the clue is in the title). Every day, journalists are engaged in an endless and frustrating poacher-and-gamekeeper tussle with government officials.

The new government has promised to be more open and accessible, and in some ways that is happening. The Chief Minister is more likely to pick up her phone to reporters than her predecessor and has encouraged journalists to meet her in person. In many ways, though, it is more a matter of personality than policy – the Housing Minister likes to talk and the Infrastructure Minister doesn’t hold back from speaking his mind. Predictably though, others who always picked up their phone as backbenchers or while campaigning have gone to ground now they have secured ministerial office. Some things never change.

But while these issues are out in the open, there is another front in the battle for your right to know which is often conducted away from the glare of public opinion. And recently those seeking to restrict this right have been gaining ground. Those on the offensive are judges and it has been left to journalists to defend the principles of open justice. In my experience at least, very few lawyers in Jersey are keen to take up the fight for greater openness, perhaps principally because many of their main sources of income are derived from people who want their business conducted behind closed doors. Perhaps they are ignorant of media law or simply don’t care that much so it never hits their radar.

Arguably the most significant victory for open justice in Jersey was won by the Jersey Evening Post in the 2001 Royal Court case JEP v Al Thani. This newspaper went to court to defend Islanders’ right to know after the Minister of Foreign Affairs of the State of Qatar was granted a court gagging order preventing any reporting of an investigation by the Attorney General into the payment of money to Jersey trusts by foreign companies in relation to arms contracts with the Arab state. The order was imposed after an exclusive report published on our front page about this wholly unacceptable and murky state of affairs. That report had merely referred to the existence of the case and included none of the details. Our court victory enabled the reporting of those important facts.

Siding with the JEP, the court ruled: ‘The principle of open justice has not yet found statutory expression in Jersey, but we have no doubt that it forms part of our law.’ The judgment added that there must be exceptional and compelling reasons for a court to exclude the media and sit in private and should not do so merely because it was convenient or to save any parties from ‘embarrassment’. Departing from the principles of open justice must only be allowed, it said, ‘if necessary’ in ‘the interests of justice’.

Even if you have never heard of the case, the name might ring a bell. The Al Thani family name has recently been internationally prominent because the 2022 World Cup was controversially staged in Qatar, with much surrounding argument about its repressive regime. It was one of the Al Thanis who embarrassed Lionel Messi (a footballer, m’lud) by making him wear an Arab cloak when he received the trophy.

It is probably fair to assume that most Islanders do not preoccupy themselves with arguments for the importance of open justice. Some might think that court reporting is simply about selling papers or generating ‘clicks’. Yes, people like reading about those who appear in the dock, but this is about fundamental democratic principles and the proper functioning of the justice process.

In September, the Rt Hon Lord Burnett of Maldon, Lord Chief Justice of England and Wales – the head of the judiciary, published guidance notes to help courts meet the obligations of open justice.

In his foreword, he writes: ‘It is a central principle of criminal justice that the court sits in public so that the proceedings can be observed by members of the public and reported on by the media. Transparency improves the quality of justice, enhances public understanding of the process, and bolsters public confidence in the justice system. Media reporting is critical to all these public interest functions.’

He might have added that media reporting also has a deterrent effect, and that the public scrutiny it enables is a guard against corruption and the arbitrary misuse of judicial power. Justice should not just be done, but be seen to be done.

Court reporting also has another important role, illustrated by the recent conviction of Metropolitan Police rapist David Carrick. He was caught because one of his victims came forward after the coverage of the prosecution of Wayne Couzens for the murder of Sarah Everard.

In recognition of the open justice principle, the guidance says the general rule is that justice should be administered in public. ‘Proceedings must be held in public, evidence must be communicated publicly’ and ‘fair, accurate and contemporaneous media reporting of proceedings should not be prevented by any action of the court unless strictly necessary’.

The Lord Chief Justice said: ‘Therefore, unless there are exceptional circumstances laid down by statute and/or common law the court must not: Order or allow the exclusion of the press or public from the courtroom for any part of the proceedings; allow evidence to be withheld from the open court proceedings; impose permanent or temporary bans on reporting of the proceedings or any part of them including anything that prevents the proper identification, by name and address, of those appearing or mentioned in the course of proceedings.’

There are some necessary exemptions to the presumptions that courts should sit in public and that journalists should be able to report proceedings. They include the protection of the identities of children and all complainants who allege that they are victims of sexual crimes. The latter group are entitled to lifelong anonymity. No reports can be published which are likely to identify them. The publication of news reports can lawfully and reasonably be delayed when a defendant is facing a second trial and reporting of the first could prejudice the outcome and fairness of the second.

In the October edition of the Jersey and Guernsey Law Review, a paper written by former Bailiff Sir Philip Bailhache titled The Principle of Open Justice considered the state of open justice in the 20 years since the landmark JEP v Al Thani judgment.

He explains how trust law has developed, and the types of hearings in which it is  lawful to sit in private, essentially when the court is acting in an administrative capacity and dealing with private family business, rather than, for example, to settle a dispute, when the court should sit in public. Other examples of when closed hearings are lawful include when reporting would defeat the very purpose of the proceedings, such as when the matter at hand is whether a document should be disclosed. If the hearing was reported, it would mean that the contents of a document could be made public before a court ruling was made.

Courts can restrict reporting in adoption cases and those regarding a person’s capacity to manage their own affairs to protect the privacy of patients.

More contentious is the Royal Court’s attitude towards the extinguishing of, or changes to, orders requiring convicted sex offenders to tell the police where they live and the name they are using, and which can restrict their access to activities and certain types of employment. These orders, which are commonly understood to be consequences of being placed on a sex offenders register, were introduced in 2010.

Although considered in light of Al Thani, applications to change their terms were initially dealt with on the evidence with no clear presumption as to whether the offender seeking a change should be named or not. Sir Philip explains that, in one case, the court sat in private after hearing that the offender had served his sentence and had been verbally abused when his identity was known and that a medical report stated that media reporting would ‘jeopardise’ the offender’s rehabilitation.

More recently, Sir Philip writes, judgments ‘appear to have taken a more liberal stance in relation to applicants seeking to lift the notification requirements pursuant to article 5 of the Sex Offenders (Jersey) Law 2020’. Paraphrasing the judgments in one case, he adds: ‘The risk of publicity might destablilise an offender and make the prospect of reoffending more likely. Sexual offences attracted much media attention which was not always helpful in that it led to offenders coming under the scrutiny of self-appointed protectors of the public interest whose focus was understandably more on the victims of crimes than the need to reduce the risk of further offending.’ Another case said that the law was not intended to encourage vigilantism.

Should people’s right to know the identity of a sex offender once he or she ceases to have to notify the police or be subject to restrictions be trumped by such considerations about the offender’s rehabilitation? Does media reporting really encourage recidivism? And how real is the threat of vigilantism in Jersey? The court of public opinion might not agree with the learned judges.

Sir Philip concludes: ‘Unsurprisingly, perhaps, given the importance of the principle of open justice, it may be asserted that JEP v Al Thani has stood the test of time.’ He adds: ‘The lodestar is necessity. The presumption is that the court sits in public. That presumption may be displaced only if it is “necessary in the interests of justice”.’ But how much importance do judges really place on open justice? How much is the judgment in JEP v Al Thani and those from subsequent cases respected?

Island journalists are less confident than the former Bailiff that Island courts are adequately respecting the principles of open justice. I would say not nearly enough. In the past few years, we have seen increasing creep, a worrying erosion of your right to know. More and more judgments relating to appeals against conviction of sentence, about divorce disputes, cases in which the defendant is suffering with mental illness and too many others are being anonymised.

In a recent case involving an unlawful search of premises allegedly linked to Roman Abramovich, the names of two companies and even the names of lawyers representing them were redacted. In another, the Magistrate rejected a defence application to hear a case in private, but that decision was overturned on appeal in the Royal Court by the Deputy Bailiff, who said the Magistrate could consider the right to privacy of his mother and siblings. The media were denied access to the hearing where the application for restrictions was heard.

The mention above of divorce cases needs explanation. We are not asking for the right to publish salacious details of private marital disputes. In fact, the JEP voluntarily stopped doing that decades ago as it was considered too intrusive, despite the fact that it probably did sell a few papers. A recent case, where the judgment was anonymised, was crucially different because the issue was contempt of court.

On a similar point, both the JEP and Bailiwick Express do agree to anonymise ‘ cases voluntarily if there are serious mental health issues.

In the UK, challenges against such restrictions, principally by newspapers and pressure groups, are fairly common and so there is a weight of case law which judges are conversant with. They are aware and understand the law and the limitations, supported by Article 10 of the Human Rights Act which protects freedom of expression, of their power to exclude the press. Judges are also led by guidance such as that issued by the Lord Chief Justice, in itself a recognition of the importance of open justice, but not in Jersey.

The complexity and relative obscurity of sources of Jersey law, not to mention the lack of statutory authority, makes the job of championing open justice harder, coupled with the feeling shared by many journalists that Island judges see themselves as having the authority to interpret ‘the interests of justice’ far more liberally than their UK counterparts, probably with relatively little understanding of the judicial development of UK media law. In the past we have heard Island judges find authority for their rulings in what they describe as ‘the inherent jurisdiction’ of the court. We have a different phrase – ‘making it up as you go along’.

Judges decline to discuss the issues with the media and the cost of challenging restrictions is often prohibitive. When concerns are raised by editors, we are simply told that we can appeal. Remedies for suspected judicial over-reach are anything but affordable or accessible. More worrying still, it is accepted practice in the courts of England and Wales that the press are given the opportunity to challenge orders before they are made.

In his guidance notes, Lord Burnett tells judges what they should be doing. The guidance states that the court should ‘invite oral or written representations by the media or their representatives, as well as legal submissions on the applicable law from the prosecution, in addition to any legal submissions and any evidence which the law might require in support of an application for reporting restrictions from a party’.

The notes add: ‘Before imposing any reporting restriction or restriction on public access to proceedings in the courtroom the court is required to ensure that each party and any other person affected (such as the media) is present or has had an opportunity to attend or to make representations. Where, exceptionally, the court makes an order where advance notice has not been given, the court should invite the media to make representations as soon as possible.

‘As soon as possible after oral announcement of the order in court, the order should be committed to writing… The reporting restrictions order should be in precise terms, giving its legal basis, its precise scope, its duration and when it will cease to have effect, if appropriate. Consideration should be given to whether to restrict reporting of the making of the order. The reasons for making the order should always be recorded.

‘If the media have not been heard before the making of the order, the court should hear any media representations as to the lifting or variation of any reporting restriction as soon as possible.’

In a recent case, the Magistrate told the press to leave the court while an application was made for a case to be heard in private. The media were not invited to make any representation. After the secret hearing, the media were simply informed that they could not report. A written notice was sent to the media saying that the order was in place and under what law. No reasons for making the order were given.

When I approached the Magistrate’s Court Greffier asking for the reasons, I was simply told that we could appeal to the Royal Court. They declined to give any reasons, which obviously makes constructing an appeal rather challenging, and not only flies in the face of the Lord Chief Justice’s guidance but must be an affront both to natural justice and the principles of open justice. I forwarded Lord Burnett’s guidance to the Greffier.

Many battles for open justice have been fought and won in the UK. The focus there has shifted away from what should be givens. The debate has moved on, leaving this Island far behind. This week, the Society of Editors, which represents the national and regional press, wrote to the Lord Chancellor and Secretary of State for Justice urging that he consider recommendations in the Justice Committee’s Report on Open Justice and Court Reporting in the Digital Age. It suggested ‘a single digital portal which the media and the public can use to access information on court proceedings, court documents and other relevant information’, remote access to courts to make it easier for the public and the media to observe proceedings.

The letter states: ‘The committee also makes sensible recommendations in relation to enhancing transparency in the family courts, ensuring that the Crown Court provides the same level of information to journalists on the outcome of cases as is currently provided by the Magistrates’ courts and improved access to documents in civil proceedings.’

As for civil proceedings here, Orders of Justice and answers to them used to be supplied to the media, but that has been stopped. Access to documents relating to civil proceedings has been restricted.

When it comes to open justice in Jersey, the tide is flowing the wrong way. Even before the JEP and Bailiwick Express merged, Bailiwick editor James Filleul and I were talking about addressing this regression together. Now we are far better placed to do so and invite members of the judiciary and their officers to sit down with us to discuss ensuring the interests of justice are met.

‘ It is a central principle of criminal justice that the court sits in public so that the proceedings can be observed by members of the public and reported on by the media. Transparency improves the quality of justice, enhances public understanding of the process, and bolsters public confidence in the justice system

Lord Burnett of Maldon, Lord Chief Justice of England and Wales