Open Justice Charter - Centre for Criminal Appeals
It is common sense that for our criminal justice system to be effective, the defence, prosecution and judge(s) must have access to the information and evidence that provides the facts on which any court decisions are based.
The information gathered in the investigation and trial process is a vital tool for criminal investigation and prosecutions in future cases, as well as for appeals of old cases. However, this resource is currently not always available to support such enquiries.
Accountability in any justice system is always a matter of access to information. Compared to other countries, British Justice lacks accountability, as access to information about how the system is functioning is restricted so severely.
The following “Open Justice” measures are proposed as a solution to these problems.
I. Access to recordings of court proceedings
1. Recordings of all criminal court proceedings including those made in the past should always be the property of HM Courts & Tribunals Service, and should be provided without cost to any person sentenced to serve time in prison, via that service, and not via private court reporting companies.
2. No recordings of criminal court proceedings should be destroyed until at least seven years after the end of the prison term and any post-release licence period imposed.
3. A transcript of the Crown Court Judge’s Summing Up should be kept indefinitely and made publicly available at no cost to the convicted person, as a printed transcript.
4. Unavailability of a complete recording of the trial in any future case should in itself constitute a ground of appeal.
II. Access to police documentation
1. Where a trial could result in a prison sentence, the defence should by default have access to an electronic copy of the HOLMES record (listing all police activity and documentation in a case) and be able to request and receive access to any document listed. The burden should be on the police to give the trial judge a specific valid justification for why a particular document or extract should not be disclosed, with the cost of redaction not constituting a sufficient reason.
2. In preparation for an appeal or an application to the Criminal Cases Review Commission, prisoners should be given free access to an electronic copy of the HOLMES record and be able to request and receive access to any document listed. The burden should be on the police to give the Court of Appeal a specific valid justification for why a particular document or extract should not be disclosed, with the cost of redaction not constituting a sufficient reason.
3. Where enquiries concerning the safety of a conviction are obstructed or prevented as a result of the police or Crown Prosecution Service having lost or destroyed documents or exhibits then this should in itself constitute an independent ground of appeal, where the Court is concerned about the safety of the conviction.
III. Access to physical evidence for scientific testing
1. Individuals seeking to appeal a conviction should be granted controlled access to evidence and exhibits for forensic examination and testing by qualified experts, with those experts taking direct custody of items from police and returning them to police.
2. The individual seeking to examine the evidence is not obliged to predict what the examination would show to gain access to the evidence.
3. Where there is a concern that testing would consume the remainder of the physical evidence, an order for sample splitting and / or agreement on experts to be used between the Crown Prosecution Service and the individual seeking an appeal should be entered by an independent arbitrator having heard from the parties.
IV. Access to prisoners
1. Journalists should be allowed to visit prisoners provided they have the consent of the prisoner and his or her representatives, if they have any.
2. The Ministry of Justice should be held responsible for ensuring that no more than one month passes between a visit request from a journalist and the decision being made regarding that request, and no more than one month between the visit being authorised and the visit taking place.
3. A prison governor must bear the burden of proof of showing a visit should not be allowed for security reasons. If access is denied, the decision should be open to appeal to an independent arbitrator.
V. Access to materials obtained or produced by the Criminal Cases Review Commission
1. The representatives of applicants to the Criminal Cases Review Commission should be permitted to inspect records obtained by the Commission under its powers to obtain public and private records that relate to a case.
The inspection should be made at the Commission’s premises and documents may not be copied without the permission of an independent arbitrator, who may hear arguments from representatives of the applicant and the agency or private entity that had original custody of the records or produced them.
2. All decisions made by the Commission relating to an applicant’s case should be made available, with the applicant’s permission, to an applicant’s representatives, including Case Plans, schedules for work, and arrangements to use experts to examine or test evidence.
This Charter has been drafted by Emily Bolton and James Burley at the Centre for Criminal Appeals, together with Marika Henneberg at the University of Portsmouth, Dr Dennis Eady at the University of Cardiff School of Law, Louise Shorter at Inside Justice and others.
Further feedback on the ideas laid out in this Charter is very welcome,
and should be emailed to firstname.lastname@example.org.
We are aware that there are counter-veiling interests of privacy and Public Interest Immunity in play here, but in other jurisdictions the interests of justice have been given primacy through the interpretation of “Bill of Rights” style provisions and we believe that a similar line of jurisprudence should be developed in this country as a matter of urgency.
Centre for Criminal Appeals: Room 29, 2-10 Princeton Street, London WC1R 4BH Phone: 020 7040 0019