11 December 2019 - Article
Fancy having a lawyer, otherwise uninvolved in your case, witness your private Family law proceedings? Is the “greater” public good eclipsing the privacy of the individual? Ollie Guest suggests a new government pilot scheme can be a good thing.
It has long been established that the sensitivity of family matters necessitates hearings are held in private. Such personal affairs are best heard away from the public where only the parties and their legal representatives can attend.
Yet on 1 October the Ministry of Justice commenced a nine month trial where lawyers can attend private hearings – even if they have no involvement in the case – to 'blog' or comment about the hearing.
Why? Are they now another resource through which the Daily Mail et al can discover juicy titbits to sensationalise people's difficult situations? Or are they attending on behalf of someone else, perhaps a business rival or someone with a vendetta to uncover personal embarrassment? Should you be worried?
No. And the potential for greater transparency could be beneficial.
First, lawyers have to meet certain criteria before they can attend a hearing. Only ones who hold a valid practicing certificate; work for a Higher Education institution; or work for an educational charity may be present. Second, they must have evidence (which the judge may ask to see) to prove their eligibility to attend, including photographic ID, and inform the court of their presence. Third, crucially, they must sign a written statement that their attendance is for journalistic, research or legal education purposes – ie they are not just spying on you.
Attending lawyers must also abide by any restrictions on publication whether imposed by law or by the court. Parties can still seek reporting embargos to protect delicate information. Or they can ask the court that journalists or legal bloggers are not even allowed to be present.
Then why is the government bothering? Well, lawyers have a different interest in cases to accredited journalists, who at present are the only third party resource allowed to attend hearings for reporting purposes. Journalists and lawyers are driven by contrasting commercial necessities. For one the focus is on eye-catching headlines, for the other it is the detail of discussion. Legal bloggers who consider the technical intricacies offer an alternative perspective to a journalist's eye for scandal, and are arguably less likely to resist reporting restrictions as individuals' 'dirty laundry' is not their concern.
Justice requires transparency. Without a clear understanding of the basis for decisions lawyers and clients alike cannot present their case appropriately. And waiting months for reported judgments means clients who are experiencing similar situations to ongoing cases may suffer as a judgment is released too late to assist their hearing. Allowing lawyers to pierce the Family court's privacy veil enables an improved understanding of the legal system without removing vital safeguards.
Moreover, justice needs to be seen to be done – it is carried out in the public's name and with their money: they have a right to see how it is conducted. Blogging permits lawyers to better inform the public about this whilst assisting practitioners to nuance their work to evolving court demands and, critically, better serve their clients.
This is not the death knell for confidentiality. The court will always be able to say if something cannot be published. The positive potential in legal blogging can assist the battle for a fairer judicial system without victimising the privacy of the individual.
As a firm that specialises in personal affairs, including preventing unwanted details being released to the wider world, we will watch with fascination developments over the coming nine months, secure in the knowledge we are expertly equipped to assist our clients to benefit from legal blogging while continuing to protect their sensitivities.