The most misunderstood quote in UK law is: “Not only must justice be done; it must also be seen to be done”.
This is widely taken to infer some ancient Magna Carta-style right that courts must be open to the public. So there is likely to be disquiet over the Gillen Review into rape trials in Northern Ireland, whose preliminary report was published this week. Among its 200 recommendations is that the public gallery be shut to all but close relatives of the complainant and defendant.
In truth, the quote on justice being seen to be done is relatively modern and has nothing to do with access to the courts. It comes from a 1923 case on the conduct of judges and means they should be above suspicion, like Caesar’s wife.
The public is actually represented in court by the jury, with the media holding the system to account. Allowing people to wander in off the street to observe trials may have provided theoretical oversight in the Middle Ages but that notion has been obsolete since the invention of the printing press.
During the trial in Belfast earlier this year of rugby players accused of rape, which led to the Gillen Review, there were Madam Defarge scenes in the packed public gallery with laughing, talking and squabbling over seats. This caused needless distress to those involved in the trial and may have made it inevitable that restricted details would leak out via social media, threatening contempt and collapse of proceedings.
The report by retired judge Sir John Gillen takes all this on board in a wide-ranging review of how sexual offences are heard in Northern Ireland. Sir John accords full respect to the public as jurors and recognises the independent role of the media as essential.
“The glare of contemporaneous publicity ensures that trials are properly conducted,” he writes.
In the Republic, the 1981 law that closed the public gallery in rape cases also bans the identification of complainants for life and the identification of defendants unless they are convicted.
Sir John advises against this to protect press freedom, which would mean no change in how rape trials are reported in Northern Ireland.
Many people consider the social media infractions and public gallery scenes earlier this year to have been part and parcel of a media circus. The message of the report is that it would be irresponsible to constrain the media due to such concerns. Sir John does not go so far as to say a circus is a good thing but he does quote the philosopher Jeremy Bentham: “Publicity is the very soul of justice.”
This is all very flattering to the press. The problem with the report is it assumes journalists will remain a presence in court forever, which can no longer be taken for granted. Local papers have always been the bedrock of court reporting and they are going out of business at an accelerating rate - the bankruptcy last week of Johnston Press threatened 14 weekly titles across Northern Ireland, as well as the News Letter and Derry Journal.
Even a high-profile trial with a guaranteed audience taxes the resources of the regional media - the rugby case lasted nine weeks. Most cases are not high-profile and will be observed by one press agency correspondent, filing copy for the entire industry. Even quite significant developments can be easily missed.
The issue is well enough recognised for the BBC and social media companies to propose helping local papers cover the courts. These proposals are not widely viewed as sincere, let alone sustainable in the long run.
More imaginative ideas include putting cameras in courts for online broadcast. Rape trials highlight the limitations of this, as it would be a huge task to edit such footage for reporting restrictions - even if judges could accept the basic concept, which clearly most cannot.
The Northern Ireland Courts Service claims to offer transcripts and audio recordings of most serious trials for a nominal fee. However, a “full and detailed reason” for requests must be submitted to the Lord Chief Justice and transcripts are only released in exceptional circumstances.
The very least that should be considered to preserve ‘contemporaneous publicity’ is putting transcripts online within 24 hours throughout every trial. After all, stenographers are transcribing proceedings live and editing text for reporting restrictions is not a major task - every reporter is expected to do it.
Locking the public gallery will become an oversight issue if reporters stop turning up.
newton@irishnews.com
