Does being watched change how justice is done? A researcher’s reflections

By Gill Loomes-Quinn – 18th January 2021

Ahead of a seminar in which OJCOP is participating this Thursday 21st January (more info below – register here) I have been reflecting on the question at the centre of the seminar: “Does being watched change how justice is done?” and thinking about what I have learned from my experiences as a public observer in the physical Court of Protection (prior to the pandemic), and through the Open Justice Court of Protection project.

It was in February 2017 that I had my first experience as a public observer in the Court of Protection at First Avenue House, High Holborn, London. I was filled with excitement at the prospect of undertaking a core part of the empirical research for my PhD, but I was also full of trepidation. I knew that public observers were quite rare in the Court of Protection since the introduction of its Transparency Pilot in 2016, and I was aware that a degree of work was created for lawyers and court staff in ensuring that documents were anonymised and paperwork was available for members of the public to sign into public hearings and agree to be bound by the terms of the relevant Transparency Order. So, I was worried about how I would be received as a public observer in the court.

My concern was exacerbated by the fact that I was unsure about what would happen following my period of observation – I knew (or assumed or hoped) that at some point I was going to get a PhD following this work, and I knew that my intellectual curiosity was going to be stimulated and my legal knowledge improved. But these all seemed rather self-oriented objectives. It was also my hope that my presence as a (disabled) public observer in the Court of Protection and what I learned and wrote as a result would enable me to develop a political analysis of the role of the court in the lives of disabled people, and in disability rights politics. But that seemed a rather ‘grand’ aim, and I also worried that such aims and ambitions may seem “niche” – considering the world of oppressions facing disabled people and our communities; or that I may not be up to the task of communicating my observations to make the difference I sought.

I was fortunate to meet court staff and legal practitioners during my month in court who expressed genuine interest in my research and indicated that they saw its value. These included barristers who took the time to discuss with me how the court works, and a solicitor who asked me about my research during a break in a hearing I was observing and then told the applicant in the hearing that “this sort of research” was “very important for policy-making”: a welcome vote of confidence in the research.

Things have changed considerably between 2017 and now regarding the presence of observers in the Court of Protection. As we know, in response to the danger posed by the Coronavirus pandemic the majority of hearings before the court are now held remotely, which has transformed the scope of access to court proceedings for members of the public, addressing some of the challenges I experienced such as the risk of traveling considerable distance to hearings that turn out to have been vacated at short notice; but also creating some challenges such as that arising when emails requesting access to remote hearings are unanswered. During this period, as the Open Justice Court of Protection Project, we have been able to set up publicity and support around public observation in the Court of Protection and found that this has been met with considerable interest by members of the legal profession who see the value of having the work of the court observed and understood by members of the public, and by people keen to observe court hearings for professional or personal reasons.

The presence in court hearings of (sometimes) several observers at a time, and comments written in blogs for the project website have highlighted that members of the public involved in mental capacity law and practice gain much from seeing the court in action, and that these gains have a social justice impact beyond the walls of the courts. These insights have certainly addressed some of my earlier personal anxieties about the balancing of labour and benefit involved in transparency in the Court of Protection. I think I am seeing the growth of a ‘community of practice’ that didn’t exist and that therefore could not have an impact when I was a lone researcher at the back of a court room in 2017.

Now seems like an ideal time to reflect on what we have learned about the relationships between open justice and social justice and to discuss with those working across other courts and tribunals how our experiences intersect with theirs – what we might learn, and how we might maximise our impact.

The Open Justice Court of Protection Project is delighted to be participating in the seminar series, hosted by Bath Publishing, and coordinated by journalist, Louise TickleLaw, Justice, and the Spaces Between: An important series of free webinars investigating openness and press reporting in our courts and tribunals’.

The series consists of 4 seminars with participants including Sir James Munby (immediate past President of the Family Division of the High Court); Tor Butler-Cole QC (barrister specialising in inquests and Court of Protection cases, 39 Essex Chambers); Emma Norton (solicitor, and founder of the Centre for Military Justice) Lucy Reid and Julie Doughty (the Transparency Project); Dr George Julian (knowledge transfer consultant and live tweeter of inquests); Prof. Celia Kitzinger and Gill Loomes-Quinn (the Open Justice Court of Protection Project); and many more.

The 4 seminars are as follows:

  1. Does being watched change how justice is done? The role and function of observers in trials, inquests, family courts, and tribunals 21 January 2021*
  2. Silence in court: What is lost – and who gains – when the State bans family members from speaking out? 4 February 2021
  3. In pursuit of social justice – Is a hearing held in public enough to hold the State to account? 18th February 2021
  4. The observer’s dilemma: Does negotiating access with power and parties compromise independence? 4 March 2021*

This series engages issues close to the hearts and minds of anyone interested, and committed to, Open Justice in our legal system. It will bring together experts in legal practice, scholarship, and activism and promises to address intellectual, emotional, moral, and practical aspects of the pursuit of transparency across our courts and tribunals. It is a series not to be missed.

You can find out more about each event, and register here – we look forward to seeing you there!

*Seminars including The Open Justice Court of Protection Project

Gill Loomes-Quinn is co-director of the Open Justice Court of Protection Project. She tweets @GillLoomesQuinn

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