Duhaime's Law Dictionary


Open Justice Definition:

A principle of the common law that proceedings ought to be open to the public, including the contents of court files and public viewing of trials.

In R v Legal Aid, Justice Woolf wrote:

"The need to be vigilant arises from the natural tendency for the general principle to be eroded and for exceptions to grow by accretion as the exceptions are applied by analogy to existing cases. This is the reason it is so important not to forget why proceedings are required to be subjected to the full glare of a public hearing. It is necessary because the public nature of proceedings deters inappropriate behaviour on the part of the court. It also maintains the public's confidence in the administration of justice. It enables the public to know that justice is being administered impartially. It can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with one or more of the parties' or witnesses' identity concealed. It makes uninformed and inaccurate comment about the proceedings less likely. If secrecy is restricted to those situations where justice would be frustrated if the cloak of anonymity is not provided, this reduces the risk of the sanction of contempt having to be invoked, with the expense and the interference with the administration of justice which this can involve."

In Terry, Justice Tugendhat noted:

"Open justice is one of the oldest principles of English law, going back to before Magna Carta."

The principle of open justice has now been mostly codified within the rules of court or such other rules of procedure such as this, §39(1) of the Civil Procedure Rules of Her Majesty's Queen's Bench Division and the Chancery Division of the High Court:

"The general rule is that a hearing is to be in public....

"A hearing, or any part of it, may be in private if publicity would defeat the object of the hearing; it involves matters relating to national security; it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality; a private hearing is necessary to protect the interests of any child or protected party; it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing; it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased person’s estate; or the court considers this to be necessary, in the interests of justice.

"The court may order that the identity of any party or witness must not be disclosed if it considers non-disclosure necessary in order to protect the interests of that party or witness."

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