As the UK’s 2018-2020 Open Government National Action Plan is being drawn up by members of civil society and government, Rahul Rose of Corruption Watch UK looks at how a less opaque court system could benefit public interest journalism, including efforts to expose major bribery scandals.
Over the summer of 2017, one the UK’s leading economic crime prosecutors stood before a jury in London’s Southwark Crown Court to set out a series of damning corruption allegations against Wassim Tappuni, a former World Bank consultant. The prosecutor explained in painstaking detail how Tappuni, in exchange for 65 bribe payments worth £1.7 million, had steered tens of millions of pounds worth of medical equipment contracts in some of the world’s poorest countries. The jury returned a guilty verdict, but the trial received little coverage in the national media. The court lists for Southwark Crown Court, which detail when and where cases take place, are so sparse and lacking in detail that many members of the media were simply unaware that a major corruption trial of significant public interest was taking place.
Sparse court lists are just one of the problems undermining the openness and transparency of the court system. The inaccessibility of court documents is another. A UK journalist can more easily access court documents from any federal court in the United States than from the Royal Courts of Justice in London, which houses many of England’s most senior judges.
The lack of transparency in the UK court system is troubling, especially as open justice brings a number of major benefits, including public confidence in the administration of justice, public accountability of judges and exposure in the media of instances of wrongdoing. The case for openness in foreign bribery proceedings is particularly strong, not least because enforcement authorities and the general public in affected countries often only learn of supply-side court cases through media reports.
Concerns about the openness of the UK court system have led to a call from civil society groups for the inclusion of an open justice commitment in the upcoming Open Government National Action Plan. The commitment – if adopted in the plan – would ensure online public access to judicial decisions and court documents.
Corruption Watch has monitored all the major foreign bribery cases to come to court in the UK in the past 16 months, and interviewed dozens of journalists, lawyers, academics and public officials. Our forthcoming research has found significant transparency problems in three broad areas of the UK justice system: the imposition of reporting restrictions; the provision of court lists; and the availability of court documents, judicial decisions and transcripts.
The accessibility of court documents
Despite having a world-renowned legal system, the public accessibility of court documents, including for journalists, lags behind that of some other jurisdictions. A 2012 report from the OECD Working Group on Bribery (OECD WGB) responsible for monitoring implementation of the OECD Anti-Bribery Convention noted that it was unable to properly assess the effectiveness of a number of major foreign bribery enforcement actions owing to a lack of available court documentation. The report recommended that UK authorities should make public as much information as possible when a foreign bribery cases is concluded through a guilty plea. In a 2017 follow-up report, the OECD WGB expressed concern “that court sentencing remarks and judgments in all foreign bribery cases are not routinely made available”.
Recent case law has made clear the importance of allowing the public to access court documents. In 2012, the Court of Appeal of England and Wales said that court documents referred to in the course of legal proceedings should be by default accessible to members of the public. Unfortunately, in practice, court documents for criminal cases often cannot be obtained without a formal application. A formal application takes a number of weeks to process and often requires the instruction of a trained media lawyer to make the submission.
The one exception to the rule in criminal cases are deferred prosecution agreements (DPA) which result in key documents, including a detailed statement of facts, being made available online. As a result, a company which pleads guilty will have far fewer court documents about its wrongdoing available online compared to a business which self-reports, cooperates and enters into a DPA. This lack of court transparency undermines incentives for companies to self-report as businesses that enter into a DPA will in many cases get more adverse publicity than if they plead guilty.
Public access to court records in civil cases should in theory be easier as permission is not required from the court to obtain ‘statements of case’. However, complex bureaucratic procedures mean a single court document will usually take a number of weeks to obtain. This process entails filling out forms, making multiple trips to the courthouse, and paying a fee, sometimes in excess of £50.
Judicial decisions – which lie at the heart of the UK legal system, instructing how legislation enacted by parliament should be interpreted and understood – are generally more widely available to the public than other court documents. The most extensive collection of freely accessible judgments can be found on the website of the British and Irish Legal Information Institute (BAILII), a non-profit organisation with only two full time staff. Despite valiant efforts, BAILII only provides a limited slice of the judgments handed down each year. Research suggests that less than a fifth of decisions from the Court of Appeal Criminal Division are available on its website.
The collateral consequences of a foreign bribery case, such as adverse publicity, may in certain circumstances have a greater deterrent effect for businesses compared to fines or even prison terms for employees, as indicated in an OECD report on anti-bribery enforcement in the United States. However, the majority of foreign bribery cases to come to jury trial in the UK in the past two years have been covered by orders under section 4(2) of the Contempt of Court Act limiting reporting. Some of these foreign bribery cases, specifically those covered by blanket reporting restrictions, are in essence proceeding in private. Journalists are unable to devote their limited time to court cases that will not be reportable for a number of months and even years.
Across the court system as a whole, applications for reporting restriction orders go unchallenged more often than not. In an age of declining newspaper revenue, the £1,000 – 2,000 it might cost to instruct a specialist barrister to make representations in a crown court to challenge an application can be prohibitive. Journalists can make their own representations without counsel, but in the past year of court monitoring Corruption Watch has never observed this. This is in part because journalists are often not given advance notice of applications for reporting restriction orders, without which it is difficult to make meaningful representations to the court. Ina recent statement, Mr Justice Nicklin said ‘without notice’ applications for a reporting restrictions result in “submissions [from journalists] at a level of generality that is unlikely to be of assistance or unlikely to advance points that legitimately could be made…”
Guidance for public prosecutors in England obliges them to oppose reporting restrictions if they do not view them a necessary for a fair trial. However, during complex and time-consuming cases, reporting restrictions will often be low on the list of priorities for the prosecution team. Lord Justice Treacy and Mr Justice Tugendhat, the latter of whom was the UK’s leading media judge until his retirement in 2014, have commented that crown court judge’s frequently hear one-sided accounts in reporting restriction hearings as criminal prosecutors lack knowledge of freedom of expression law.
Inadequate court lists
Detailed and accessible court lists are a central component of open justice. As the Criminal Procedure Rule Committee noted in 2013: “Self-evidently, public understanding and scrutiny would be significantly inhibited if the public, including reporters, were not informed of where and when the administration of justice was to take place.” However, court lists are only made available to the general public and most journalists less than 24 hours in advance of a given hearing. The lists offered give only the most basic information (such as the court number and the name of the defendant). They lack key details, including information about the charges/claim. As a result, court cases of significant public interest are taking place without the knowledge of the press and civil society.
A more open future?
Open justice is an important tool in the fight against bribery. It increases the deterrent effect of court sanctions, allows civil society to scrutinise the policies and actions of anti-corruption enforcement agencies; and alerts the public, including in demand-side countries, to instances of large-scale bribery. As the UK example shows, when open justice is diminished the consequences can be troubling, whether that be under-reported foreign bribery trials or the lessening of incentives for companies to self-report.
If the UK is to ensure transparency in its court system, including foreign bribery proceedings, it must commit to significant reforms, ones that may not be popular with certain judges and barristers who have become used to the gentlemen’s club atmosphere of many courthouses up and down the country. At the very least, the UK government should make it mandatory for courts to publish judgments and key court documents online. Listings should also be published online for all courts well in advance of hearings, and should give more detail than presently provided. Implementing an online system to give the press and civil society advance notice of discretionary reporting restriction applications would also go a long way to ensuring that well thought out and considered freedom of expression arguments are more regularly advanced in court.
 R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court  EWCA Civ 420,  QB 618, www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Judgments/guardian-city-of-westminster-mags-03042012.pdf
 Supply of Information from Court Records, Publication of Court Lists’, Criminal Procedure Rule Committee (2013). https://docs.google.com/document/d/1Ey0yolg866U1ruu5izxKsTKBnfO_fHspbuFfi2lfEg4/edit