When we heard that the President was coming to give a speech at the FLBA conference this weekend we wondered if he might use it to launch the Transparency Review Report.

In fact, he didn’t, but he did confirm that the review will be published on Thursday 28 October as a result of ‘frustrating delays’ (which we anticipate might relate to the cabinet reshuffle), and in the course of the day there were a number of other interesting remarks from the judiciary about the topic of transparency. So, to tide you over until 28 Oct (we know, you can scarcely wait), we thought we’d tell you about those little snippets.

Firstly, Lord Justice Peter Jackson made some really interesting remarks about appeal statistics. He noted that when one thinks about appeals, it can seem as if Judges are regularly getting things wrong.

  • Jackson LJ reminded us that there are about 16,000 care cases completed every year. Each involves a big decision at the end and numerous hearings along the way where other decisions may be made.
  • However, the Court of Appeal receives around 550 appeals in each yr (presumably this is just family appeals not all civil appeals), and of these permission to appeal is granted in about 90, with the appeal being allowed in about 60 cases, with the other 30 or so being dismissed, leaving the original judgment standing.
  • Looked at another way, for every 1000 cases appeals are allowed in 4 cases, whilst in 2 cases the Court of Appeal concludes that the judge was not wrong.

Who hears about the 994 cases where there is no appeal, asked Jackson LJ?

He argued that part of transparency may be making sure people understand that its quite unusual for things to go wrong, and where it does that is not necessarily for reasons that lead to criticism of the judge. Of course, the number of successful appeals does not necessarily a perfect proxy for the number of cases where something has gone wrong – there are lots of barriers to appeal, in particular financial, and so there are undoubtedly an unknown proportion of cases where error may go un-remedied. But the broad point holds good – the media is only able to report on cases in the public domain and those appeals evidencing error or miscarriage are generally likely to occupy greater airtime and page space, and as such are likely to become disproportionately large in the minds of the public.

Lord Justice Jackson also noted that the Court of Appeal is now live streaming family appeals, and noted that in a recent appeal about vaccination of school children about 1500 watched where typically there will be no more than 30 people in the courtroom in a face to face appeal.

Mr Justice McDonald endorsed the remarks from Jackson LJ about the potential of Livestream to increase transparency, by getting out to a wider audience what judges, lawyers and others do and how they do it. He told an amusing anecdote about his wife watching an appeal from one of his decisions on livestream and her fascination with the oral advocacy and word crafting skills of the lawyers. That sort of impact he thought, could take place more widely.

Mr Justice Hayden, head judge for the┬áCourt of Protection talked about the benefits of remote working in the Court of Protection and about the regular attendance at hearings of observers through the Open Justice Court of Protection Pilot. He thought it had assisted transparency and he described the development of observation in the court during the pandemic as a ‘journey’. He spoke eloquently about how the decisions he and other judges were making in the court of protection, about the way people end their lives, what constitutes life, and what is human dignity were ‘far too important to be heard behind closed doors, and were a topic in respect of which public debate was crucial. Reporters must, he said, be allowed to be critical or even tendentious – and he noted specifically that a lot of very good material has been generated through the project. Interestingly, he indicated that he had given serious thought to how in future ‘Celia’s band’ as he called them (of sometimes 70-80 professionals in a day) could be enabled to continue attending hearings post-pandemic. He noted that those observers were often professionals interested in knowing how the court evaluates and promotes capacity and how it evaluates best interests. In that respect access to observers performs an important educative role. He thought that in future it should be possible to accommodate observers accessing hearings both ‘through the real door’ and by video conference facility. ‘Anything else’ he said ‘Would be to go backwards. It would be less transparency, and we can’t do that’.

That fills us full of optimism both about the future of transparency in the Court of Protection, and by extension or analogy in the Family Court, particularly give that they were made in the course of a panel discussion chaired by Sir Andrew McFarlane himself.

Fingers crossed for 28 Oct…

Feature pic : Open and Closed by Andrew Rose on Flickr – creative commons – thanks!