‘Fine words butter no parsnips’: Can the principle of open justice survive the introduction of an online court?

Sue Prince will deliver a talk on ‘Fine words butter no parsnips’: Can the principle of open justice survive the introduction of an online court? Many jurisdictions are embracing technology as a potential gatekeeper for new court processes. In order to encourage less reliance on legal aid and free up judicial resource, policy makers are keen to embrace ‘online court’ solutions, and ‘digital by default’ approaches to resolving legal problems. In British Columbia, Canada, for example, the online small claims process has replaced the court building with an end-to-end pathway-style online process which provides legal advice, mediation, and access to an online judge. In the UK, plans are afoot for all civil cases under £25,000 to be referred to an ‘Online Solutions Court’. In the recent case of R (on the application of UNISON) v Lord Chancellor (2017), Lord Reed said that the court is more than a service to the user and that access to the courts is not of value only to the particular individuals involved but is fundamental to the rule of law and society. The question is whether once the institution of the court is not a place or a building, how can we measure whether the service provided to litigants is fair? Will technology change the nature of the legal process so that the traditional vision of the court has to be amended or qualified? This paper will consider whether the principle of open justice can be upheld effectively in this new technological environment. Open justice exists to protect the right of the public to be informed about what happens in the court; both through their ability to attend individual cases and the right of the media to be in the courtroom and to inform more broadly. Open justice has been upheld by the senior judiciary in significant historic cases such as Scott v Scott (1913) and R v Sussex Justices, ex p McCarthy (1924). Open justice is guaranteed as part of the a right to fair trial, such as in Article 6, European Convention on Human Rights: ‘…everyone is entitled to a fair and public hearing…’. The question of openness is therefore essential to the design of the online court.