The Ministry of Justice is consulting on Open Justice.

We have submitted our response today.

OPEN JUSTICE CONSULTATION – RESPONSE FROM THE HUNDRED FAMILIES CHARITY

Overview & Background

1. Open Justice

There is probably no better description of Open Justice, than in this Appeal Court judgment:

• “Open justice… requires, as a general rule, that the courts must conduct their business publicly unless this would result in injustice. Open justice is an important safeguard against judicial bias, unfairness, and incompetence, ensuring that judges are accountable in the performance of their judicial duties. It maintains public confidence in the impartial administration of justice by ensuring that judicial hearings are subject to public scrutiny, and that “Justice should not only be done, but should manifestly and undoubtedly be seen to be done”.”

The Supreme Court has also held:

• The principal purposes of the open justice principle are two-fold… The first is to enable public scrutiny of the way in which courts decide cases – to hold the judges to account for the decisions they make and to enable the public to have confidence that they are doing their job properly… The second… is to enable the public to understand how the justice system works and why decisions are taken. For this they have to be in a position to understand the issues and the evidence adduced in support of the parties’ cases.

2. Open Justice in Mental Health cases

In mental health cases there is often a severe lack of open justice. The offender’s claim to privacy is often allowed to outweigh the public’s right to see justice done.

The judgment in Scott v Scott [1913] is often cited as an authority in such cases:

• It is true that to the application of the general rule of publicity there are well recognized exceptions… Lunacy proceedings… depend upon the familiar principle that the jurisdiction over wards and lunatics is exercised by the judges as representing His Majesty as parens patriæ. The affairs are truly private affairs; the transactions are transactions truly intra familiam; and it has long been recognized that an appeal for the protection of the Court in the case of such persons does not involve the consequence of placing in the light of publicity their truly domestic affairs. [Emphasis added]

But for cases of mentally disordered offenders who have committed the most serious crimes – these are clearly not ‘truly private’ or ‘domestic affairs.’ They are matters of utmost public concern, particularly where the actions or omissions of state agencies have been involved.

Lady Hale acknowledged this in the Supreme court:

• There is a difference between cases where a court or tribunal is administering the property, care, or treatment of a patient in his own best interests and cases which are concerned with the proper management of a patient who has in the past been dangerous…. There is a balance to be struck. The public has a right to know, not only what is going on in our courts, but also who the principal actors are… They need to be reassured that sensible decisions are being made about them… The public too have an interest is knowing how difficult and sensitive cases of this sort are decided.

In a High Court case following brutal double murder by a mentally ill offender who was resisting the release of his patient information, HHJ Davis said:

• Mr Stone’s right to privacy in this context that this inquiry, and all this publicity, have arisen out of Mr Stone’s own acts – acts found to have been criminal. He has, as it were, put himself in the public domain by reason of those criminal acts, which inevitably created great publicity… It is moreover, in my view, important that the conduct of the public authorities in a context such as the present are seen to be subject to public scrutiny, with consequential legitimate and informed public debate on the conclusions to be drawn and lessons to be learned.

There is clear judicial recognition of the need for balance and transparency in cases of mentally ill people who have committed serious crimes.

Transparency and accountability in mental health cases considering dangerous offenders cannot be an injustice.

There appears to be no good reason why there cannot be greater openness and transparency in cases considering mentally ill offenders who have committed serious crimes.  In our experience, however, this rarely if ever happens.

3. Diminished responsibility cases

3.1 Psychiatric reports.

Typically, such cases will be decided on the basis of at least two psychiatric reports concerning the suspect’s mental state at the time of the offence. 

They are submitted to the Crown Prosecution Service for a decision on whether a plea of manslaughter by reason of diminished responsibility is acceptable to the Crown.

Such decisions are made in secret.

The evidence on which those decisions are taken is rarely, if ever, disclosed in any detail to affected families, to whom, arguably, the outcome of the case matters most.

When the plea of diminished responsibility is accepted, the evidence is not challenged, or even fully discussed or disclosed, in open court.

There is insufficient transparency and accountability.

In the absence of any public scrutiny there is no way for the public to assess the credibility of the evidence. There is no way of knowing whether the Doctors submitting the reports, or the CPS officials accepting them, are biased, acting unfairly, or incompetent.

We have only their word they are not.

We say as a minimum the psychiatric evidence should be disclosed to affected families if they so wish.

We say that following conviction there is a compelling case for the psychiatric reports deciding such cases to be made available to the public.

3.2  Prosecution opening statements.

Homicide proceedings can be extremely emotionally challenging and difficult for families. They can often struggle to take in fully everything that is being said in court.

In some courts the acoustics are really poor, some advocates are softly spoken – making it hard to hear.

Copies of prosecution opening statements delivered in court can be extremely helpful for families – and particularly when not all family members are able to attend.

Prosecution opening statements given in open court are matters of public record and can be reported by the media.

We have had several cases where affected families have been refused copies of prosecution opening statement by the CPS when asked.

In one recent diminished responsibility case in Wales the CPS refused sharing the opening statement with the family claiming GDPR regulations prevented them from doing so – despite the fact the statement had just been read out in open court.

In that case some family members lived overseas and were unable to attend the court in person, leaving the grieving family members who could attend left to try and explain what had happened.

Some families do get prosecution statements without any difficulty and are greatly assisted, but this does not happen regularly.

There is no reason why all families should not be given such copies if they so wish.

3.3  Judges’ sentencing remarks.

Although the Crown Court Manual (section 20.8) and the Ministry of justice say families affected by homicides are entitled to receive Judge’s sentencing remarks, sometimes they can be very difficult to obtain.

In some cases, they are given automatically, but not in others. There appears to be a lack of consistency and knowledge in some areas of the CPS.

Judges’ sentencing remarks can be of significant assistance to families in emotionally challenging hearings, particularly when it is hard to hear or fully take in what has been said –and particularly for family members who are unable to attend court in person.

Judges’ sentencing remarks are inconsistently published on the judiciary website. It is hard to discern the rationale.

4. First Tier Tribunals (mental health)

First Tier Tribunals (mental health) are independent judicial bodies and part of His Majesty’s Court and Tribunal Service.

One of the biggest obstacles our families face is the total lack of openness, transparency, or public accountability in First Tier Tribunals (mental health) considering the discharge of patients who have previously been extremely dangerous to others when unwell.

The concept of open justice appears to be completely alien to them.

Uniquely for a judicial body in the United Kingdom, affected families and the public are not allowed to know the names of the judges, the members of the panel, where they sit, what evidence they consider, or how they take their decisions.

Despite many thousands of such cases only three have ever been heard in public. (Ian Brady, Albert Haines, and Jared Britton).

In cases of profound public concern affected families and the public are not considered ‘interested parties’ and are completely excluded from the process. None of our families have been able to attend Tribunal hearings, despite repeated requests.

There is no system, that we are aware of, of any form of accountability or independent reporting to the public.

As they sit in complete secrecy we cannot tell if such Tribunals are racist, discriminatory, or incompetent. We have no way of knowing if they are acting impartially, lawfully, or in the interests of justice.

In the absence of any public scrutiny, they could perhaps be considered the last secret courts.

One of our families trying to get a copy of the reasons why a tribunal released her son’s killer (just three and a half years after conviction) had to launch a judicial review to get them to consider her request. The judicial review found the Tribunal had acted unlawfully in not considering her request appropriately.

We have since been told by tribunal judges that if families were to receive copies of tribunal decisions they risked being held in contempt of court, should they attempt to share that decision with anyone.

This is in great contrast to the Parole Board, where affected families are permitted to attend the board, can make personal statements, can receive a copy of the decision, and can challenge or appeal the decision.

At First Tier Tribunals (mental Health) none of this is allowed.

And there is compelling evidence that decision making by such Tribunals is highly problematic and not protecting the public from serious harm.

We are aware of at least 30 mentally ill offenders, originally convicted for very serious crimes, who have gone on to kill after being discharged by mental health tribunals.

We are also aware of academic long-term studies showing very high rates of recidivism for such patients following discharge (43% re-convicted, 30% for grave offences).

We are aware of the moves towards greater transparency and reporting in the family courts considering the fate of innocent children.

We cannot understand however why there is such resistance to greater transparency in First Tier tribunals (mental health) considering the release of dangerous offenders – where there is significant public interest and concern.

Greater openness, transparency and public scrutiny would shine much needed light on this dark corner of the criminal justice system. It would help hold them accountable.

We say when offenders have committed very serious crimes, patient confidentiality should not be accorded greater importance than open justice and public safety.