Should Courts Remain Open to the Public?

Many people are surprised to find out that anyone can walk into a courtroom and watch criminal proceedings.

Subject to certain exceptions – including cases involving child defendants and parts of sexual assault cases – courts are open to anyone who wants to come in and watch.

People are even free to publish articles and media reports about court proceedings, including the names of defendants, complainants and witnesses, and the testimony that they give.

They can also draw and publish pictures – such as portraits – that are drafted inside the courtroom, and publish photos that are taken outside the courthouse; again, subject to certain exceptions.

But whether courts should be so open – and privacy so limited – is subject to debate.

Going to court for a criminal offence is something that many people want to hide, regardless of whether they are complainants (ie alleged victims) or defendants.

The testimony given on the witness stand can be highly personal – involving intimate details of relationships and other information that can be difficult and embarrassing to disclose.

The idea that anyone can just wander-in, including school kids and journalists, and hear all the steamy details can make prospective witnesses feel wary and uncomfortable.

Many are concerned that the information will be reported online or in newspapers, and believe that they should be able to keep that information hidden.

What about my right to privacy?

It may come as a surprise that there is no constitutional right to privacy in Australia – although we do have limited protections through legislation.

Significantly, the desires of defendants and complainants to keep the details of their identity and testimony hidden are not protected by any privacy laws.

In limited circumstances, courts can make ‘non publication’ or ‘suppression’ orders preventing the publication of certain details – but such orders are rare and only granted where there are very good reasons for doing so.

Why are courts so ‘open’?

Courts are ‘open’ to the public in order to promote the democratic ideals of transparency and accountability – especially given that magistrates and judges are not elected.

This idea has been recognised for centuries, with 19th century English philosopher Jeremy Bentham writing:

“In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.”

Open courts are seen as an important safeguard against injustice and corruption which could otherwise fester in a secret, closed court system.

And it’s not only judges who are open to scrutiny – the words and conduct of witnesses, defendants, criminal lawyers, prosecutors and police are more transparent in an open court system, which can act as a deterrent against lying and abuses of power.

Ideally, an open court system is supposed to promote the notion that justice must be done and be seen to be done.

A further argument in favour of open courts is that if individuals are going to be governed by a particular set of rules, they should be able to see those rules in action, as well as gain a first-hand understanding of how they operate.

All of this, it is said, outweighs the ‘right to privacy’ of individuals when it comes to their court cases.