How being watched changes how justice is done: ‘Insider’ Perspectives

By Celia Kitzinger, 20th January 2021

Although the majority of hearings in the Court of Protection have been open to the public since 2016, very few people actually watched them.  

This changed when – due to the public health emergency – hearings moved out of physical courtrooms and onto video platforms or telephone conferencing systems, making it much easier for us to observe hearings from the comfort of our own homes.  Public observers are now much more common.

“Before Covid, I’d never had a public observer in court,” one barrister told me, “but now I’ve learnt to expect it.  There were 12 observers in one of my hearings in December.” A trainee solicitor, reflecting on her first experience of having an observer in a hearing, said: “Before COVID-19, I can safely say that I had never considered the real possibility of having a public observer at a first instance COP hearing.” Another solicitor said, “It’s all been a bit strange getting used to the idea of having members of the public watching us.”

The Open Justice Court of Protection Project, launched in June 2020 (by Celia Kitzinger and Gill Loomes-Quinn) has supported hundreds of people to attend remote hearings (and the occasional hearing in an actual courtroom).   They’re mostly health and social care professionals, but also some law students and occasionally people who are themselves caught up in Court of Protection hearings as family members of a protected party.  Most are attending to better understand how justice is done – often, specifically, how the Mental Capacity Act 2005 (which many observers use in their everyday work) is interpreted and implemented by the court.  

The question “Does being watched change how justice is done?” arose out of discussions with colleagues involved in similar projects: Louise Tickle, a journalist involved in The Transparency Project, which reports on the family courts; the Transparency Project’s chair, barrister Lucy Reed; George Julian, who blogs about inquests (and live tweets from them); Emma Norton, of the Centre for Military Justice.  We’re addressing this question in a panel discussion on Thursday 21 January 2021, as one of a series of four webinars organised by Louise Tickle under the title “Law, Justice & the Spaces Between”, with the support of Bath Publishing. More information about the panellists, the four seminars and how to get your (free) ticket here. 

How can we know the impact of observation?

We can’t compare and contrast the hearings we didn’t watch with the hearings we did: we don’t know what happened in hearings when we weren’t there.  But there’s often evidence from the hearings we do attend that the judge, lawyers, court staff and sometimes other participants, are aware of our presence and behave differently as a result.

Barristers sometimes explain that, “because observers are present,” they need to finalise a transparency order before the hearing progresses, or check with the judge whether they can read aloud from a skeleton argument (which the judge has already read) so that observers can follow an argument (or conversely, they may ask the judge to silently read a paragraph about P so as to preserve P’s privacy when observers are present). 

Sometimes I’ve actively intervened into hearings I’ve observed by sending requests to the judge via the court clerk, or to emails to counsel.   I’ve asked for position statements: sometimes I receive them without further ado; on other occasions counsel and the judge have discussed during the hearing whether or not they should be released and if so if they need to be anonymised or redacted first.   I’ve made submissions about the transparency order: on one occasion the judge agreed to make a change I had requested.  On another occasion I emailed counsel asking whether they would be willing to ask the judge to expand the published judgment to cover some points raised in the position statements but not directly addressed in the oral judgment.  These interventions on my part change the process of justice, but not – of course – the substantive outcome of hearings.  

But the ways in which justice changes when observers are present are likely to go well beyond explicit reference to observers by barristers and explicit interventions from observers into the court process.  Simply knowing that we’re watching, and that we may write about what we see, may influence what goes on in court.

Many lawyers – and also some family members, litigants in person, other lay participants and expert witnesses – have the experience of hearings that have public observers and hearings that don’t.  They are in a good position to describe the difference they think observers make.

So I tweeted the question, “Does being watched change how justice is done?” and received more than 40 responses – many of them direct messages (DMs) which developed into conversations,  rather than (or in addition to) public tweets. I also received emails addressing the same question.  Most were from barristers but I also heard from some solicitors, six family members (some of whom were litigants in person), and one expert witness.  In quoting what they told me, I’ve given names where I have permission (or where I’m quoting from public tweets) or descriptions (e.g., “barrister”, “COP family member”, etc) where I don’t.  I’d also welcome feedback on this blog post: use the “Leave a Reply” button at the bottom of the post.  

How being watched changes how justice is done

From what we’ve been told so far, there seem to be five significant changes to Court of Protection hearings as a result of observers in court: 

(1) Barristers are increasingly opening cases with introductory summaries for observers 

(2) Lawyers (and sometimes judges) are having to explain to P and P’s family that observers may be present and may write about the case

(3) When observers are present lawyers clarify and highlight key legal concepts

(4) Blogs by observers create an opportunity for self-reflective learning 

(5)  Observation means lawyers are “on best behaviour”

1. Barristers are increasingly opening cases with introductory summaries for observers

In my experience, opening summaries are now common – and it is usually stated at the outset that they are “for the benefit of those observing this hearing”.  

Around four-fifths of the hearings I’ve observed in recent months have begun with a basic introduction both to the people present in court (who is representing whom; who is applicant, who the respondents are) and to the key issues in the case (e.g. what the applicant is asking for).  There’s also often a potted history of previous hearings in the same case. Introductions usually take around 3-5 minutes (I’ve very occasionally heard much longer ones – 15 mins in one case) and they are invaluable to observers in enabling us to understand what then unfolds in court.  To the anonymous barrister who said: “I’m not sure how useful hearing an opening actually is for an observer as they would not have had the benefit of reading all the context within the bundle”, please be reassured that we find them extremely useful!

It’s my experience, and that of other observers, that there’s been a gradual increase in the frequency of opening summaries over the seven months that the Open Justice Court of Protection Project has been operating – from rarely encountering them at the outset, to mostly hearing them now:

“I think the only thing which I have noticed for sure from the start of the project up until now, is that there has definitely been an increase in the number of cases which start with an opening statement laying out the background to the case. Although that is by no means across the board still. It has definitely become more common place, especially when the case is before certain judges in the RCJ, who ensure it.” (Adam Tanner, Public Observer)

Opening summaries were the single most frequently mentioned change in response to observers’ presence (and sometimes the only change people mentioned):

“Only difference is the applicant barrister is supposed to “open” the case. That never happened before.” (Barrister)

“I hear more detailed case summary and intros now than previously.” (Kirsty-Louise Stuart, solicitor)

“We have been told that we need to properly open cases again for the benefit of those attending. I have found this to be good practice anyway and the process of condensing the case into a short opening is actually really useful for me.” (Barrister)

I’m not the only person who thinks an opening summary can help the judge. The Vice President of the Court of Protection, Mr Justice Hayden, who wants opening summaries to become “routine normal practice” has said in hearings that he finds them helpful in ‘orienting’ him to the case.  A barrister agrees – and adds that they are also useful for non-lawyer participants – including P, P’s family and litigants in person:

“It’s good practice to have to think ‘how can I summarise this case in 2 minutes’ at the outset. I think it helps to do that in most cases anyway, but a public observer’s presence means we are more likely to have thought about it first. It aids the judge’s understanding and just as importantly the understanding of non-lawyer participants/litigants.” (Barrister)

Opening summaries do, however, need to be succinct, brief and to the point.  Victoria Butler Cole QC expressed concern (across a series of public tweets) that oral opening summaries can “waste time” and that it would be more useful to provide us with written case summaries.  From the observer’s perspective, written case summaries would provide the additional benefit (if they could be requested in advance) of enabling us to choose between hearings on the basis of our professional or personal interests (e.g. a DOLS assessor might choose a hearing related to deprivation of liberty issues; a psychologist working with older people could choose a case concerning a dementia patient rather than one about a young person with learning disabilities).

It would also be invaluable to receive, on request, the skeleton arguments, or position statements prepared in advance by the parties – since these usually underpin oral argument in court, even when they are not explicitly referenced.  These are rarely offered. When I request them there is often no explicit refusal – they are simply not sent at least 50% of the time. This is something that appears to me not to have changed over the course of our project, despite a relevant Court of Appeal judgment nearly two decades ago:

“ … the principle of open justice leads inexorably to the conclusion that written skeleton arguments, or those parts of the skeleton arguments adopted by counsel and treated by the court as forming part of his oral submissions, should be disclosed if and when a request to do so is received.” (Howell & Ors, v R. [2003] EWCA Crim 486 (28 February 2003))

Summaries are an excellent development in enabling observers to follow a case.  Timely release of skeleton arguments to those observers who request them would support comprehension and avoid some of what happens at present where counsel read out sections of the argument (sometimes apparently irritating the judge) for the benefit of those of us who don’t have the documents. 

2. Lawyers (and sometimes judges) are having to explain to P and P’s family that observers may be present and may write about them

The Article 10 right to freedom of information, which supports the presence of observers in court, is often in tension with the Article 8 right to private and family life – and this plays out in court as lawyers and judges wrestle with how to explain our presence to lay participants, and what information we are and are not allowed to have access to or report in blogs  (see my post here). 

Both barristers and solicitors sometimes express anxiety about how P (and P’s family) will react to the presence of observers – and this is a compelling reason to address the matter before the court hearing and to request a private hearing if it’s really necessary to do so.  

When hearings are open to the public, as most are, solicitors should have explained in advance to P, P’s family and any other lay participants that there may be public observers.  In practice, though, this seems often not to happen and I have personally witnessed these explanations being offered in court at the beginning of the hearing at the point at which the lay participants become aware of my presence.  This seems to lead to hasty, defensive, and often inaccurate explanations.  

One judge explained to P’s family that I was there “to see how remote hearings are working – so she’s only interested in whether the technology is working properly not in the substantive content of the case”.  I was taken aback by this and emailed the judge’s clerk a few minutes later to correct this misapprehension.  Another judge explained to P that the observer “won’t quote anything you say – she just writes general summaries of the case” (another email!).  

It should also be self-evident that in explaining my role as a public observer, lawyers need to explain the transparency order – but this explanation is not always offered (and can be inaccurate when it is).  

Barristers seem to be caught unawares by the need to explain the presence of observers – either because they perhaps hadn’t expected an observer, or because they thought a solicitor would have explained this to their client in advance of the hearing.  But some solicitors, too, are clearly not prepared for the presence of a public observer in a public hearing:

“The first thing that surprised me about the presence of the observer was how sudden it was. At a telephone hearing a few weeks ago, the operator was announcing names, and the name after mine was one I didn’t recognise. I scrabbled through my papers to check attendees to see if I had missed anyone. When I concluded that I hadn’t, I emailed counsel asking “…any idea who this person is?!” It was only when the Clerk joined the call that she confirmed that we had a public observer present, that the judge had already confirmed he could be present and that he would need a copy of the Remote Hearing Order before matters proceeded any further. The observer was emailed this and matters proceeded as usual. He was permitted to introduce himself and explain why he wanted to observe the hearing, which I hadn’t anticipated either. I was a little taken aback because, although P was not present and did not want to participate in the court process, I hadn’t had the opportunity to speak to P about the reality of someone being present at this specific hearing.” (Trainee solicitor)

Other, perhaps more experienced, lawyers are increasingly familiar with these conversations, but can also manifest some anxiety about them, describing them as “difficult” and referring to clients who have (or would have) become distressed by having observers present:

“Having observers has, I would say, moved me to talk to Ps and family members more about this. Whereas it may only have been a mention before, the presence of observers is more of a reality now.” (Kirsty-Louise Stuart)

“Yes, we are definitely having to have more difficult conversations with Ps about the fact that strangers will be listening and may write about them.” (Victoria Butler Cole QC)

“I recently acted in one case where our client was a private woman. She was horrified that Court proceedings were ongoing (although they were necessary) and was acutely embarrassed when certain topics, such as sex, were discussed in court. This was necessary, handled in a delicate way by all parties (including the judge) and we supported her closely throughout, but I am aware that it would have been hard to explain to her that a further person was in court, who was there for experience rather than anything else. It may well have been that the judge did not permit observers if any had requested access, but even the conversation with her would have been very difficult and would no doubt have added to her distress.” (Trainee solicitor)

Some lay participants are delighted to have observers in court. One unexpected consequence of our work with the Open Justice Court of Protection Project is that we have been contacted by people with requests to attend their hearings – and have observed hearings as a response to such requests on seven different occasions now: that’s an average of one every month for the duration of the Project.  What P’s family members (who in some cases are also litigants in person) tell us is that they believe that having an observer present will ensure that the judge “behaves himself” and “doesn’t do anything wrong – because you’ll be watching!”.  Litigants in person have also reported feeling less isolated and alone if there’s just one other person in court who doesn’t feel to them as someone “on the other side”. In several other cases, family members have contacted me after a hearing (it’s easy to find me via google) to ask what I thought of it and whether the judge was “fair” – and seemed to have gained some comfort from having someone independent and impartial as a witness to their story.

Even though, in every case so far observed at the request of family members, the judicial decisions made have been contrary to what they wanted,  family members report that they felt the hearing went better for them than had previous hearings, and that the judge was “fairer” to them because observers were there.  One litigant in person wrote:

“ [Observer’s] presence was valuable – the judge was quite snappy and aggressive with me before he arrived; and was clearly in fast-forward mode. That changed.” (Litigant in Person)

We’ve several times been contacted by families who are angry and distressed about the transparency order (they speak of “censorship”, “secrecy”, “preventing us from telling the truth”) and they want to know how they can get it changed so that they can speak publicly about what’s happening to their family.  I get the impression that lawyers representing the family, and/or P, have sometimes simply adopted the standard transparency order without discussing with the family whether they (or P) would have wanted some variation to it, especially in the direction of greater transparency.  In one (very unusual) case where lawyers had worked with family to permit public identification of P,  P’s son actively wanted us present in court in the hope of some additional publicity about the case – to bear witness to the injustice his family was suffering and to ensure others knew about it (blog post here).  

In response to my tweet requesting comments on how being watched changes how justice is done, several people contacted me concerned that their hearings (not all of which were Court of Protection hearings) had not been observed, saying they wish they had been.

Another family member told me she desperately wanted observers present, and had tried (unsuccessfully) to interest the media in the hearing about her mother: “If only your Project had been around when my Mum’s case was in court, it would have made such a difference for us to have someone watching”.

The presence of observers in court hearings will be welcomed by some but problematic for others.  What is needed is for lawyers to talk with their clients about the role of observers, and the transparency order, in a timely manner and to become confident in having “difficult” conversations about this – perhaps supported by the knowledge that sometimes their clients might welcome observers in a way that lawyers might not have anticipated.

3. When observers are present lawyers clarify and highlight key legal concepts 

Lawyers – especially those most accustomed to having observers in court – report that they try to ensure that the key legal concepts underpinning the decisions that need to be made are fully explicated for the benefit of observers (any non-legal specialists involved in the case).  This can include spelling out acronyms and initialisations, referring explicitly to sections of the Mental Capacity Act 2005 and sometimes reading them out, and drawing out the implications of case law more fully than they otherwise might:

“There’s a few bad habits that have been corrected: […]   we’re thinking about how we communicate and tend to explain the ratio of authorities, or what obscure pieces of legislation mean….”  ( Ian Brownhill, barrister)

“That drive to ‘clarity’ goes for lawyers and (as I perceive it) judges too, who are more likely to explain what they are doing in straightforward terms.” (Barrister)

One barrister is especially positive about the effect of observers in ensuring that fundamental legal principles come to the fore and as a result are “more rigorously and consistently applied”:

“There has been real enthusiasm for public observers in the Court of Protection. It has been seen as a real opportunity to counter the perception of it as a secret court. As a result, we have been taking the time to expressly set out the first principles and legal principles which should govern everything the Court does. This exercise, which was prompted by a desire to make the proceedings accessible and easier to follow has actually meant that as the principles are pushed to the forefront of everybody’s mind, they are more rigorously and consistently applied.” (Josh Hitchens, barrister)

Overall, lawyers see this as a good development – especially when there are non-legal participants such as litigants in person or expert witnesses in court.  But there is also some concern about the extra time (and therefore cost) of court hearings conducted in this way:

“My only difficulty with being observed is the expectation that practitioners will avoid using legal jargon. I find this difficult for two reasons: firstly, I find shorthand to be useful for speeding up hearings and to cut through complex concepts and secondly, maybe selfishly I have got used to referring to acronyms like DoL or MCA, I now find that I lose my flow if I have to shift into speaking in full sentences.  It may appear that I’m being flippant but I do think that there is a place for commonly understood terms and concepts between practitioners. I have seen counsel recount the entire test for mental capacity for the benefit of observers. While I agree that ‘jargon busting’ is a good thing generally, I am troubled by the idea of drawing out hearings solely to explain that which the judge and the parties already understand. There are resources available if observers didn’t understand every term used.” (Barrister)

As a seasoned observer (I’ve watched nearly 130 COP hearings since May 2020), I’ve actually not noticed much change in the use of acronyms or explanations of ‘jargon’ – I’ve simply become more skilled at decoding them.  I’ve spent a lot of time on google, typing in acronyms and case names to figure out what’s meant, and I usually have the Mental Capacity Act 2005 open in another window on my computer so I can rapidly check anything I’m unsure of.  Observers often also write down what’s said verbatim and look it up after the hearing.  

While observers are always grateful for any help we can get with understanding what’s going on in court, I think we all recognise that the point of the hearing is primarily to make decisions on behalf of a protected party, and not for our educational benefit.  We can cope with not understanding every word! What I hadn’t appreciated until barristers told me, though, was the value for the court of being explicit about the underlying legal principles that guide its decision-making.

4. Blogs by observers create an opportunity for self-reflective learning 

Our blogs attract a significant number of reads: for example, there are more than 4,600 reads for “When Expert Evidence Fails” and more than 2000 reads for “Hunger striking for his identity”, “Should life-sustaining treatment be continued?” and “What does the Court of Protection needs to know about ‘borderline personality disorder’.  We’re told our blog posts are widely read by law students, pupils, and junior lawyers in the Court of Protection for whom they open a window into ongoing cases. They also offer the opportunity for continuing professional development for lawyers, health and social care staff, and others who use the Mental Capacity Act 2005 in their daily lives.

Lawyers often read blogs about the hearings in which they themselves feature:

“We reflect on our advocacy by reading the blogs!” (Ian Brownhill, barrister)

“I have actually found the blogs produced by observers to be really interesting and useful.” (Barrister)

“Reading the blogs is entertaining – a little bit like the review following opening night. It keeps everybody on their toes.” (John McKendrick QC)

We have of course also received occasional email correspondence from lawyers asking for corrections to blogs (e.g. here) and -as we say in our policy statement – we welcome this.  Hard as we try, we are (mostly) non-lawyers, so it seems inevitable that we will sometimes make mistakes in reporting court hearings.  Open justice imeans running the risk that non-specialist members of the public will get the wrong end of the stick and inadvertently misreport proceedings.  That risk is of course reduced by careful introductory summaries at the opening of hearings, and by releasing position statements – at least to the blog editors who can then cross-check the author’s submitted post against court documentation.  Moreover, our errors as public observers for the Project, seem to me to be considerably less egregious than those of other reporters and commentators across some media and social media outlets.  There is generally a poor understanding of the CoP and its work among journalists as among the general public.  Without a space such as that provided by our blog, the only place a court has to explain its work is in published judgments – obviously intended primarily to do a different job and speak to different audiences.  

I get the impression that some lawyers (and judges) feel rather ‘exposed’ by blogs (and tweets) about their hearings – I would too in their position.  There are also professionally-imposed constraints on their ‘right to reply’ – although we will publish relevant replies/corrections when we receive them, as stated in our policy (here).  

My view is that, so long as we are as accurate as we can be in what we write, and appropriately courteous in our criticisms and disagreements, the discomfort borne by the professionals involved in court hearings we report on is one of their contributions to the price paid for open justice – a shared principle to which we, and they, are jointly committed.

5.  Observation means lawyers are “on best behaviour”

Awareness of being watched and its impact on behaviour is something academic social scientists have agonised about.  It’s sometimes referred to as the “Hawthorne Effect” after a study in 1920s Chicago investigating whether improved factory lighting increased productivity: it seemed initially that brighter lighting increased output until someone turned the lighting down to below baseline levels and found that productivity increased even more.  The moral is that that people change their behaviour for the better when they think you are watching them (or at least, monitoring their behaviour).   In linguistics, the effect of being observed is named the “observer’s paradox” (“to obtain the data most important for linguistic theory, we have to observe how people speak when they are not being observed”, Labov 1972, p. 113):  the problem is that observing ordinary vernacular speech is difficult (or was in 1970s America)  because a speaker who is aware that their speech is being simply displaying poster images of ‘watching eyes’ (like the image at the top of this post) has been shown to improve behaviour dramatically (e.g. reducing bicycle theft in this study). 

So, are lawyers (and judges) likewise minding their Ps and Qs, and displaying themselves and their work to best advantage, when they know they are being watched?

Inevitably, yes.  Reports from the front line strongly suggest that knowing you are being observed changes the way justice is done in the direction of improving everyone’s behaviour in court.  As John McKendrick’s comment quoted earlier indicates, the possibility of a blog about your performance in court (like “the review following opening night”) has the effect of   “keep[ing] everybody on their toes”.   Most of the comments I received about this issue were from people who preferred to remain anonymous.

It absolutely changes things – practitioners and judges are less sloppy I think, and take the time to properly set out the facts, the law and judgments when they might otherwise refer to things in a more shorthand way.  This, I think, is a good thing since it means that anyone participating or watching (often family or even P themselves) can actually follow what is going on far better.  It means we are all on ‘best behaviour’ essentially!  (Barrister)

Privately I think observers make the barristers try harder in a hearing – like in a driving test. u never drive like that normally. They are more aware of what they are supposed to do in court. (Solicitor)

“My opinion is that it is extremely good to have witnesses present, and by this, I mean anyone (including journalists) who is not directly involved. This is the case in medical situations.  Just having a visitor from another unit completely alters (for the better) how processes occur, and also prompts self-reflection or, through questions asked or comments made, a more formal reflection. Groups who work together in isolation (e.g. locked nursing homes or wards) are at great risk of developing attitudes, values, and processes that are not good.  So I think even having the possibility that an observer could be present, or could suddenly walk in/join in on video will make a difference.” (COP expert witness)

Eight barristers (independently of one another) told me that having observers present improves judicial behaviour – in particular via what was characterised by one of them as “improved civility in court”.  They referred to “rudeness” from judges who were “hostile” to or “impatient” with their oral submissions in court, or “dismissive” of P and P’s family members.   One barrister emphasised that that Court of Protection judges are “very good – from DJs up to HCJs. They are serious about the role they are performing and appear to enjoy the work” but added that being observed “acts as a brake on some of their more obstreperous characteristics”. One commented that judges behave better in front of observers, knowing that the public would be “horrified” at their customary level of disrespect (e.g. expressing the view that some hearings are “a waste of time”).  

One barrister who often acts for the Official Solicitor said that “observers have moderated some of the lower-level Judges who are known for being hostile towards the Official Solicitor”.  I quoted this to a different barrister who did not share the perspective that some judges are specifically hostile to the Official Solicitor but said:

“I think perhaps the reality is that judges are less dismissive of ANY advocate, less ‘rude’ or apparently stroppy etc when there is an observer present  – they are human after all and are aware they have an audience of usually professional, disinterested persons who want to observe them at work. Generally, I think that simple fact means people act in a more civilised manner.” (Barrister) 

A couple of other barristers (both QCs) told me about bad behaviour from judges that they’d endured as junior advocates – behaviour that obviously still rankled years later – and hoped that our presence as observers might militate against that for others.  I have certainly observed (what I consider to be) bad behaviour from professionals in court – but the worst case (which I wrote about here) was a hearing at which, although I was known to be present, I think the advocates and judge perceived me (correctly) as having a primary role as support-person for P’s daughter, rather than as an observer.  Observers unconnected to parties in the case, present only to observe, may be oriented to very differently and are more likely to militate against bad behaviour from judges and counsel.

On the other hand, a couple of barristers did mention, with some concern, a “performative” element to some judges’ behaviour when they have observers in court.  They were acutely uncomfortable with the idea that a judge might be “playing to the gallery”,  displaying his or her knowledge, skills, intellectual acuity, beneficence, wisdom and humanity as a sort of ‘public relations’ job for the Court of Protection – and not actually getting on with the business in hand.  This was only thought to be the case for one or two judges.  It was also acknowledged that one or two judges really “don’t care” what the public think of them, and there was some concern about (what some lawyers consider to be) these judges’ disrespectful behaviour and bad practice – unmitigated in the presence of observers – having a negative effect on perceptions of how justice is done in the Court of Protection.  I have to say that I personally recognise and resonate to both sets of concerns.

Final Reflections

The rapid increase in the numbers of observers in the Court of Protection coincided with the move to remote hearings.   What observers see when watching how justice is done is different in remote hearings as compared with attended hearings in courtrooms.  As John McKendrick QC, who was involved in the first post-pandemic COP remote hearing, says:

“As counsel we have been on a long journey since the first all Skype hearing in March 2020. The involvement of members of the public in a virtual hearing from home, is different to appearing in a public court. The layout of a physical courtroom draws the advocate’s attention to the judge and witness and little else. Virtual hearings have a different effect and expose counsel in a different way. Normally the public would only see my back but in a virtual hearing they can clearly see my facial reactions. That provides a sense of greater accountability.” (John McKendrick QC)

Nonetheless, the points made here – about the value of opening summaries, the need to explain the presence of observers to lay participants, the value of clarifying key legal concepts, the opportunity for self-reflective learning, and the likelihood that being observed means lawyers are “on best behaviour”, would seem to apply equally to hearings in courtrooms as to remote hearings. 

Obviously, too, we can blog about hearings whether they are in courtrooms or on video-platforms – and have already published a report about “a covid-secure attended hearing” at First Avenue House during the pandemic.  For us, as observers, there is of course a question mark about how we will be supported to observe hearings once they return to physical courtrooms, and hence the future for open justice in the Court of Protection.

For the avoidance of doubt, nobody has suggested that substantive judicial decisions are altered by the presence of observers. I’ve seen nothing to indicate that a judge who might, for example, have made an order that life-sustaining treatment is not in P’s best interests falters under the glare of public observation and instead orders that treatment should continue (or vice versa). What changes with observers present seems to be the process of justice, rather than its outcome.  

The judiciary has a strong commitment to open justice: it is, for them, “a principle at the heart of our system of justice and vital to the rule of law” (Lord Justice Toulson R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] QB 618.  This is notably so in the Court of Protection: “Transparency is central to the philosophy of the Court of Protection”, says Mr Justice Hayden, Vice President of the COP (in his 31 March Guidance).  The problem for the judiciary is that if their stated commitment to transparency and open justice is to have any practical realisation, they have to ensure that journalists and public observers come into their (virtual or physical) courtrooms.  

The Open Justice Court of Protection Project is committed to providing the judiciary with the support it needs to overcome the barriers to public attendance and to minimising and managing the practical difficulties the presence of observers can sometimes involve.  It is a fundamental principle that justice should not only be done, but should be seen to be done.  With nobody watching,  ‘open justice’ is simply an abstract ideal.

Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She tweets @KitzingerCelia