Fifteen Top Transparency Tips for Judges

By the Core Team of the Open Justice Court of Protection Project, 15th October 2024

The Open Justice Court of Protection Project (henceforth OJCOP) was founded by Celia Kitzinger and Gill Loomes-Quinn in June 2020 to support and promote the judicial aspiration for transparency in the Court of Protection, by encouraging members of the public to observe and blog about hearings. You can find our website here: “Open Justice Court of Protection Project”.

Since 2020, it has become common to find public observers in the Court of Protection – many of whom have no connection with this Project.  Others attend with our support – and we’re aware that observers include a large proportion of professionals working with the Mental Capacity Act 2005, as well as people who are concerned that they may be a future P in the Court of Protection, and family members of Ps in upcoming cases.  We know that for all observers, especially those observing for the first time, anxiety levels may be high in relation to court protocol and – for remote hearings – the correct use of technology.

The tips in this document are indicative and not exhaustive. We’d welcome feedback.  And, if you can make the time, we suggest that you observe a hearing for yourself – by randomly choosing one from the Courtel/CourtServe listings. You might be surprised by just how different the experience is compared with sitting in court as the judge.

Transparency Orders

1. Does a hearing need to be (wholly) private?: If you are asked to order that a case should be heard in private (without a Transparency Order), please consider holding in public at least that part of the hearing at which you consider the application to hold the substantive matter in private – and there may be other parts of a case that can be public even where part is properly private.  Please remember that you can admit an observer to a private hearing (including a ‘closed’ hearing) at your discretion. 
2. Check the Transparency Order: Prior to a public hearing, check the Transparency Order for unusual prohibitions (e.g. prohibition on identification of a public body) or omissions (e.g. not protecting the identities of people/parties who’ve joined hearings subsequent to the TO being drawn up). If we notice an omission during a hearing, we will try to notify the court but our messages don’t always reach the court until after the hearing. If an Order prohibits us from identifying public bodies, we routinely ask for it to be varied since this is often a mistake or something that has been done without a balancing of the relevant Article 8 and Article 10 rights.   
3. Ensure observers have received the Transparency Order: Ideally, we should receive a copy of the Transparency Order before the hearing starts. If we’ve not been sent a copy and you need to make a verbal Order, please don’t refer to it as being “in the usual terms”. Some members of the public will not know what this means. Even if they do know what this means, we have found that this is not always an accurate description of the Order we later receive.
4. Silent affirmation of receipt of Transparency Orders from observers: Some judges say to all observers that they assume that they have read and understood the Transparency Order, and tell us to speak up if we have not. This saves court time because it means the judge does not have to ask each person individually, and it also reduces the anxiety that some people experience when observing a hearing. 

Listings

5. Courtel/CourtServe: This service is the main way we learn about hearings and it’s the source we rely on as public observers. Please check how your hearings appear on the Courtel/CourtServe listing – it may not be as you expect or indeed as you have directed. For example, around 50% of judges whose hearings are listed as “private” tell us they’ve been so listed inaccurately – and this has the effect of making the proceedings private by default. To understand the scale of the issue, you may find it useful to read this report by Celia Kitzinger: “Private Hearings: An Audit”. 

6. “Late” Requests: Be aware that messages from would-be observers may reach you rather later than you would like. This is because we cannot usually ask for remote links until the evening before a hearing because the lists are not published until then (and court staff are busy and may not spot them or forward them to you immediately). You may find it useful to read this blog by Claire Martin, who explores in detail why we do not ask for hearing links earlier: “Why members of the public don’t ask earlier to observe hearings (and what to do about it)”.  [Addition April 2025: Rebuking members of the public for “late” requests has a serious deterrent effect on open justice: Clare Fuller describes feeling “humiliated” by a sharp response from a judge after joining a hearing late due to HMCTS staff not sending her the link until after the hearing had started: “If this had been my first court observation, it would have been my last“.)

7. Last-minute changes to a hearing (e.g. from in-person to remote or moving a hearing earlier or later than publicly listed) need to be communicated to would-be observers by updating the public listing and by emailing or verbally informing those who have asked to observe or are waiting outside a courtroom to do so. Recently, an observer waited in the corridor outside an RCJ courtroom for an in-person hearing to start, while the judge sat inside conducting the hearing remotely.

Courtroom door notices

8. Notices on the door? Ask someone to check notices on the courtroom door – there may be a big “PRIVATE” sign on the outside.  Would-be observers have given up and gone home when confronted with a private sign on a courtroom door – even when it says “public” in the listings. 

During the hearing

9. Welcoming observers: Please do try and make observers feel welcome. Some members of the public have told us that they been made to feel very unwelcome. Small things (e.g. when you thank counsel at the end of the hearing also thanking observers for taking the trouble to come and support the judicial commitment to transparency) are always welcome. 

10. Please don’t ask why we’re observing: If a case is for hearing in open court, we don’t need to give a reason for why we want to observe a hearing.  We appreciate that it can be helpful for P and P’s family to know who is watching and to be reassured that these are people they can trust, so explaining about the role of the Open Justice Court of Protection Project in trying to ensure that justice is seen to be done may be a helpful way to do that. Please bear in mind that asking observers in open court why they want to observe a hearing can place them in a difficult position when (for example) their reasons relate to their own current or future COP proceedings, or to their own impairments or family experience.

11. Video and audio: Check that all observers can see and hear. Encourage counsel and court staff to speak up or ask somebody to ensure that microphones are available. This is especially important during in-person or hybrid hearings. If possible, during hybrid hearings try to ensure that a camera is positioned on whoever is speaking. It can be quite difficult to differentiate between disembodied voices. Being admitted to a hearing but not being able to hear it is not open justice (See: “The silent courtroom: A remote hearing without sound – and why transparency matters”;” Inaudible in-person proceedings: A practical barrier to transparency and open justice”).

12. Who’s who in court? At the start of the hearing, ask the applicant (or if they’re not represented, the Official Solicitor) to identify the names of all the legal representatives and any others who will be addressing the court. This is so that we can accurately report on a hearing, and so we know who to ask for position statements. While it may be court etiquette for counsel to be referred to as Mr/Ms X, knowing their first name can help us find the right person online. This is not as relevant for remote hearings as counsel have their full name on screen (and clear introductions at the start do not mean everybody must be referred to as such for the duration of the hearing). (Also, we often don’t learn the name of applicant counsel until late in the proceedings because they never introduce themselves.(

13. Position statements: It’s hard to follow a hearing without access to position statements. It’s helpful if judges give counsel permission (if required) to share position statements with us either before or at the very beginning of a hearing. Please don’t wait to be asked: it’s difficult for observers to create a ‘speaking slot’ to make this request, and although counsel may be aware that we want access to position statements, they are otherwise preoccupied and may forget.

14. Opening summaries: Ensure that the hearing starts with an “opening summary”, detailing the basic facts of the case and the issues before the court.  This would also be in line with the advice of the former Vice-President, Mr Justice Hayden (“The Court of Protection and transparency”). Some judges prefer to do this themselves; others ask counsel for the applicant to do so (or another barrister if the applicant is a litigant in person).

15. Court documents: When discussing an Order, evidence, or other court documentation during a hearing, remember that we do not have access to the court bundle e.g. we do not know what is in “section 10 of the draft order”. Reading it aloud – or screen-sharing – makes that transparent. 

Thank you for your commitment to transparency and open justice in the Court of Protection.

The Project’s core team authored this document for use in judicial training. You can find out more about the core team members of the Open Justice Court of Protection Project here: “Meet the Team“. With thanks to Daniel Clark for taking the lead in drafting this document.