Observing justice: Digital transparency, openness and accountability in criminal courts By J. Townend, L. Welsh, Bristol: Bristol University Press. 2023. pp. 176. £45.00 (hbk). ISBN: 9781529228670

Abstract

I am a criminology lecturer, and I have a particular interest in the criminal courts. It is, therefore, no surprise that I found Townend and Welsh's book an important and fascinating read. As set out in the opening chapter, the book is ‘about the principle and practice of open justice in criminal courts in what is often characterised as the “digital age”’ (p.1). Attention is on how court hearings and information are made publicly accessible in the 21st century. The authors specifically focus on the magistrates’ courts due to these courts being ‘under interrogated as a part of open justice’ (p.4). This is of importance given that research tends to focus on the Crown Court, despite the majority of cases being heard in the summary courts.

Throughout the book, when discussing matters relating to open justice and the magistrates’ courts, the authors draw upon their own empirical data – specifically courtroom observational data – and, also, secondary data. This includes studies done by academics, third sector organisations, and government bodies. The methodology is discussed in Chapter 1, but the methods section is short and not particularly detailed. This is, however, acknowledged and a reason for this is given – due to there being insufficent space. Furthermore, the reader is informed that they can get in touch with the authors to request more information if they wish. The structure of the book is also set out in the introductory chapter, and an overview of the remaining chapters is provided, which will now be discussed.

Chapter 2 explores the history of open justice and accountability in the criminal courts in England and Wales. A discussion about these principles is of value given that these terms are often referred to within criminal justice literature, but their history, how they are defined and why they are of importance are not always focused upon. The main theoretical rationales for the contemporary approach to open justice are considered, including the shaming and deterrence value of it, and critiques of these rationales are provided. In response, the main argument of the book is put forward: the authors suggest ‘a shift in emphasis, moving away from an account of publicity in criminal proceedings as important for shaming and/or deterrence purposes, to one that considers the broader importance of making the justice system scrutable and of its educational value in the widest sense’ (p.20).

The authors in Chapter 3 then go on to talk about the developments that have occurred in relation to the criminal courts, and the consequences of these changes on accountability and open justice. Developments discussed include the increased use of virtual courts, and the introduction of the Single Justice Procedure for minor offences and the automatic online conviction process. It is recognised that although there are benefits associated with the reforms that have occurred, there are also negatives which undermine fairness, participation, accountability and open justice – all pertinent principles within the criminal justice system.

Following Chapter 3, the role and interests of the public and news media in observing and reporting court proceedings are considered. The focus, in Chapter 4, is on the justifications for the presence of observers, the nature of the work that court journalists do and their interests when reporting on criminal cases. The numbers of public and media court observers are dwindling, though, and the implications that this has on open justice and justice system accountability are examined.

Media reporting, as stated in Chapter 5, is something that is ‘a widely accepted – indeed celebrated – part of the open justice process’ (p.93). Personal and identifiable information about those involved in criminal court cases is often included in this type of reporting – but the impact that this has on individuals is something that has been largely neglected. This is why Chapter 5 is of particular interest as it explores the impact of transparency on defendants – in particular court reporting and justice data sharing practices – and considers whether current practices are fair or not. The authors draw upon previous literature and pilot empirical research to do this, although it is recognised that more research needs to be done and gaps in the data are highlighted. Nevertheless, based upon the available evidence, although a clear tension exists between transparency and privacy, it is argued that ‘system design should minimise unnecessary stigmatisation and intrusion on individuals to avoid further entrenching existing societal exclusion and inequalities’ (p.117).

Finally, in Chapter 6, the authors conclude by proposing a change of approach in relation to open justice. Although the news media play an important role in open justice and accountability, priority is generally given to the public shaming element of open justice and the focus is generally on cases that are considered newsworthy. This is based on, for example, the seriousness of the crime, how complex the case is, and/or whether it involves a well-known individual. As a result of these factors, a narrow approach to open justice is taken, in which certain cases are reported on whereas others are not. Consequently, the approach is not one that ‘is well suited to exposing systematic issues or injustices’ (p.124). Thus, the authors argue for a broad approach to open justice, which would involve looking beyond the news media for informational transparency. To educate the public and better hold the criminal justice system to account, public participation in the court process should be made easier and encouraged to a greater extent. This is known as ‘participatory accountability’ (p.124).

Overall, then, this book is a very enjoyable read. It is an important book in the field for those who study law, criminal justice and criminology at all levels, but also practitioners and policymakers. The book is easily accessible and is written clearly and succinctly. Furthermore, the authors put forward persuasive arguments as to why we should be concerned about open justice and it being undermined and why a framework for open justice in which public legal education and justice system accountability should be prioritised over other rationales.