Open justice, transparency and the media: representing the public interest in the physical and virtual courtroom

摘要

In 2012,Lord Justice Toulson observed that thepractical application of open justice 'may needreconsideration from time to time to take accountof changes in the way society and the courts work'.1In this article,we undertake such a reconsiderationin light of the declining role that institutional mediaorganisations play in promoting and protectingthe principle of open justice,focusing on courts inEngland and Australia.We argue that due to changesin the communications landscape,the media nolonger have the resources or sufficient inclinationto adequately safeguard the public interest intransparency in the courts.In order to place themedia's declining role into context,we also brieflyexplore three further categories of contemporarychallenges facing the open justice principle: changesto judicial attitudes to open justice in responseto new communication technologies;shifts inthe priority given in law to competing interests innational security and privacy;and,finally,new andemerging changes to court processes and proceduresthat potentially limit open justice,including virtualcourts.We then consider mechanisms that wouldoffer enhanced protection of open justice.Mostboldly,we examine a novel model in which an openjustice advocate (OJA) intervenes in appropriatecircumstances,with the overall objective of ensuringmaximum transparency of court proceedings.