Series: Law, Society, Policy

 

Series Editor: Rosie Harding, University of Birmingham

Law, Society, Policy offers an outlet for high quality, socio-legal research monographs and edited collections with the potential for policy impact.

Cutting across the traditional divides of legal scholarship, the series provides an interdisciplinary, policy engaged approach to socio-legal research which explores law in its social and political contexts with a particular focus on the place of law in everyday life. It takes an explicitly society-first view of socio-legal studies, with a focus on the ways that law shapes social life, and the constitutive nature of law and society.

Law, Society, Policy

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In Chapter Six, the book concludes by arguing for a broad approach to open justice that recognises the importance of public participation in a model of justice system accountability and does not wholly rely on the news media as a proxy for transparency.

The authors suggest implementing more nuanced and evidence-based approaches to open justice that respond to advances in digital technologies and, in doing so, also attempt to lessen systemic and individualistic harms, including stigmatisation. Recommendations centre on widening public interest court reporting, improving justice data availability and accountability, and increasing resources and investment in the facilitation of public access.

Such an approach prioritises public legal education and access to justice, as well as effective scrutiny of the criminal justice system. The authors contend that the practical application of open justice demands regular scrutiny and debate, to take account of changes in the way that society and the courts work. Overall, their work demonstrates how the principle can be effectively dissected, by attending to the practical realities of its application, and by testing its objectives through socio-legal research.

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Chapter Two provides historical context on the way in which open justice and accountability have developed in England and Wales. It considers modes of accountability in the criminal process, public participation in the criminal courts, and its development in recent decades.

It looks at the place of open justice in a wider tradition of justice system accountability, sitting alongside and underpinning other important tools. As part of this exercise, the authors detail the main methods for contemporary observation of physical criminal court hearings and access to different information types, drawing attention to the main obstacles and gatekeepers.

They also explore the main theoretical rationales for the contemporary approach to open justice which, it is suggested, can be categorised as punitive (shaming), deterring, educational, scrutable (ensuring fairness and proper conduct). The chapter then critiques these various arguments, proposing that understandings of justice system accountability need to recognise their weaknesses and strengths.

The authors introduce one of their core arguments, that policy and law makers should prioritise informational transparency as a means of scrutiny and education, rather than as a means of an individual’s punishment and deterrence.

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Chapter Five draws attention to a much-overlooked aspect of open justice: the implications and side-effects of publicity, arising from both the availability and unavailability of information. Some of these effects have been amplified by digital technology, such as the development of global search engines which are perceived to create indefinite online records of individuals’ criminal convictions.

Undoubtedly, there is a cost and human impact to publicity of criminal court proceedings, whether it is justified as unavoidable collateral harm of the process – or seen as an unwarranted and damaging intrusion of privacy. But equally, in other contexts, there can be a cost for freedom of expression and access to justice in the absence of information.

Though the authors cannot offer full answers based on their preliminary research on the impact of publicity on defendants in the criminal courts (indeed, they contend, some tensions between privacy and transparency can never be ironed out), they propose that systems should be designed to maximise equal and fair outcomes; minimise unnecessary stigmatisation and intrusion on the individuals; and avoid further entrenching existing societal exclusion and inequalities.

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This first chapter introduces the book’s focal theme: the principle and practice of open justice in criminal courts in what is often characterised as the ‘digital age’. That is, the way in which court hearings and information about cases are made publicly accessible in the context of digital and technological advances in the 21st century, and the relationship to principles of transparency, access to justice and accountability.

The authors introduce recent developments in open justice policy and technology in England and Wales that raise, they contend, neglected practical and ideological issues relating to access to justice, individuals’ privacy, and public access to information.

As well as setting out the authors’ methodological approach and the core themes of participatory accountability and transparency, the chapter explains why the book pays particular attention to the functioning and scrutiny of the Magistrates’ courts within the criminal justice system.

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Chapter Three considers the operationalisation of open justice in the context of modernisation, digitalisation and data developments. It focuses on aspects of the HM Courts and Tribunals Service (HMCTS) programme of modernisation and digital reform including the Single Justice Procedure (SJP) for the prosecution of minor offences, video-enabled justice (VEJ), as well as digitalisation of data processes.

The authors consider a range of questions: how is information about an entirely administrative or virtual process communicated to the public? How is justice system data being collected, processed, and disseminated online, by different public and private sector actors? And to what extent do digital court processes enable the public to engage in the justice system and hold it to account?

The chapter also looks at equality of access to digital justice systems, in terms of funding, technological and legal literacy, as well as access to tools. In this context, the authors discuss power relationships and how technology is changing the dynamic and interactions of the digital and physical court room, making participation more difficult and undermining justice system accountability.

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Digital Transparency, Openness and Accountability in Criminal Courts
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This book examines how major but often under-scrutinised legal, social, and technological developments have affected the transparency and accountability of the criminal justice process.

Drawing on empirical and evaluative studies, as well as their own research experiences, the authors explore key legal policy issues such as equality of access, remote and virtual courts, justice system data management, and the roles of public and media observers.

Highlighting the implications of recent changes for access to justice, offender rehabilitation, and public access to information, the book proposes a framework for open justice which prioritises public legal education and justice system accountability.

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Chapter Four delves beneath the surface level understanding of open justice, looking at the mechanics of the principle: the roles of different media and civil society actors, the design of the channels and platforms and the financial costs (among other features). Because of the idiosyncratically decentralised and piecemeal nature of the justice system, many practices have evolved over time, in inefficient and unjust ways, without purposive design. Some of the inconsistencies have become more apparent and problematic in virtual environments.

As well as attending to the practical detail of court observers’ work, the authors unpack the rationales justifying observers’ presence in court and begin to develop a conceptualisation of open justice that thinks beyond the news media and traditional model of court reporting, despite the trend for limiting certain access to the ‘accredited’ press. In doing so, they consider factors of ‘justice-worthiness’ as well as the ‘newsworthiness’ of cases in court. The chapter also exposes how systemic failures are often mechanical rather than legal faults.

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The chapter summarizes the main policy recommendations of the book: The harm from non-consensual intimate images (NCII) is caused also by platforms and viewers who should both be liable for breach of the claimant’s privacy. The harm from NCII is exceptional so liability should not necessarily be imposed for harm from other user generated content. In reality, hosts and viewers sell and buy the claimant’s images without the claimant’s consent, so they should be strictly liable for the ensuing harm, as those who sell and buy stolen chattel are liable to the original owner. Platforms should actively filter out non-consensual intimate images, regardless of their size. Similar to defences to criminal responsibility for child pornography, promptly deleting unsolicited NCII should prevent civil liability. Liability of each viewer should be to a significant amount, but should not extend to the entire loss.

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This chapter proposes to understand child pornography as an extreme and complicated instance of NCII. It (1) establishes viewers’ liability for viewing child pornography under privacy law (as distinct from bespoke statutory provisions), (2) examines whether viewing child pornography could be considered as ‘acting in concert’ and hence lead to full liability of each viewer to the victim’s entire damage from the viewing of their abuse (and possibly also from their initial abuse); (3) argues that the holding in the US Supreme Court in Paroline v United States is compatible with demand-based liability: A viewer could and should be liable to the victim’s injury from the initial abuse, as long as the production of the child pornography was (also) motivated by the prospect of distribution. However, the viewer should not be liable to victims whose images he did not view for harm from either the initial abuse or the circulation of images.

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Image-based Abuse and Beyond

Should digital platforms be responsible for intimate images posted without the subject’s consent? Could the viewers of such images be liable simply by viewing them?

This book answers these questions in the affirmative, while considering the social, legal and technological features of unauthorized dissemination of intimate images, or ‘revenge porn’. In doing so, it asks fundamental socio-legal questions about responsibility, causation and apportionment, as well as conceptualizing private information as property.

With a focus on private law theory, the book defines the appropriate scope of liability of platforms and viewers, while critiquing both the EU’s and US’ solutions to the problem. Through its analysis, the book develops a new theory of egalitarian digital privacy.

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