The Privy Council found itself in a dilemma. They found it merely voidable. It was for that reason only that the court refused to intervene. On the basis of the traditional significance of openness as a critical attribute of the Anglo-American trial, the principle of open justice was constitutionalised. The High Court of Australia, unlike the Supreme Court of the United States, but like final courts of appeal in other common law nations, can determine what the common law requires for the whole of the nation.
There is no need to constitutionalise common law doctrines. The significant difference, of course, is that once a right is found to exist in a constitution it is incapable of amendment by the legislature. That is a topic for another day. The invocation in Richmond Newspapers of the First Amendment to reinforce and expand the principle of open justice, specified in the Sixth Amendment with respect only to criminal trials, has seen the principle applied in many different areas:. The restrictions apply to all cases chosen by the Attorney-General, without any need for a case-by-case analysis.
Two federal appeals courts have ruled on the constitutionality of the Creppy Directive: the Sixth Circuit found the restrictions unconstitutional,  while the Third Circuit found them permissible. In this, as in so many respects, the fundamental principles of our legal procedures have to face new challenges associated with the threat of terrorism. The principle of open justice informs and energises fundamental aspects of common law procedure and is the origin, in whole or in part, of numerous substantive rules.
For example, the requirement of due process or natural justice or procedural fairness — both the obligation to give a fair hearing and the importance of the absence of bias in a decision-maker — is in part based on the importance of appearances.
It is a question of what fair minded people — not just the parties, but the public at large — might reasonably apprehend or suspect. How significant the appearance of proper conduct of the administration of justice must be is a matter that can vary over time. It is inconceivable that today, in any common law jurisdiction, let alone in England and Wales after the passage of the Human Rights Act UK , a court of appeal would decide two cases in the same way as the English Court of Appeal did in about In the other case the Court of Appeal rejected an allegation that a murder trial miscarried when the judge appeared to be asleep for 15 minutes.
The Court was satisfied, by perusal of his summing-up, that he must have been awake.
The mere appearance of being asleep was not enough. One important manifestation of the principle is also the foundation of judicial accountability. I refer to the obligation to publish reasons for decision. This obligation requires publication to the public, not merely the provision of reasons to the parties.
Lord Mansfield said:. Numerous other specific rules are influenced by the principle of open justice. For example, the prohibition of undue interference by a judge in proceedings; the prohibition of improper conduct by a court officer with respect to the trial;  the determination of the weight to be given to the public interest when ruling on a claim of privilege;  the proposition that a permanent stay of criminal proceedings will be extremely rare.
The significance of this function was well expressed by Chief Justice Burger, in the landmark decision of Richmond Newspapers:. The principle of open justice raises many issues about the administration of justice relevant to the media. It is appropriate to recall the observations of Justice Felix Frankfurter:. In the landmark case of Attorney General v Leveller Magazine, Lord Diplock said the principle of open justice requires that the Court should do nothing to discourage fair and accurate reports of proceedings. In Anglo-Australian law the principle of open justice does not create some kind of freedom of information legislation entitling the media access to court documents, at least when those documents have not yet been deployed in any manner in the course of litigation.
This limits accessibility in circumstances where proceedings are only filed. There is a range of legitimate judicial opinion on the application of the principle. It has always been so. It always will be so. The search for the middle ground, an instinctive judicial response to the dilemma of choice, was well described, perhaps satirised, by Lord Hoffmann. It is a noble passage worth quoting at length:. This judgment was delivered before the United Kingdom adopted the European Convention. However, Lord Hoffmann referred to Article 10 of the Convention and noted the limited list of exceptions to its guarantee of freedom of speech.
His Lordship concluded:.
Further, in his Goodman Lecture of , Lord Hoffmann modified his position by denying that freedom of speech always trumps other rights. These perspectives can lead to different weight being given to freedom of speech in a balancing process. One retired judge of my court expressed a widely held view:. If I may be permitted the sin of self quotation, in a case in which a television crew trespassed on land in order to confront the owner with his iniquity, I said:.
The media do not need to rely on such high minded rhetoric. Too often it sounds like self-serving cant.
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No Bill of Rights anywhere in the world contains a freedom to entertain. The media can serve the public interest by pursuing its own interests. The interaction of the principles of open justice and of freedom of speech, with other doctrines of the law, is at the heart of much media law. The principle of open justice has important implications for the law of contempt, for the interpretation of legislation and for the exercise of powers by a court which impinge upon media access to proceedings in court.
The principle often interacts with other rights. For example: the right to reputation, the right to privacy and the right to a fair trial. Each of these interfaces raises a major topic.
11 - The Supreme Court of Ireland
I will focus on the latter. This interaction raises difficult issues for the application of each principle with important implications for the media. The interaction requires a court to compare essentially incommensurable matters.
The values served by openness cannot be measured on the same scale as the values served by a fair trial. It is like asking whether one object is longer than another object is heavy. Many take the opposite position of those who believe freedom of speech is a trump. Lawyers are prone to refuse to accept any balancing which would diminish the right to a fair trial found, for example, in Article 6 of the European Convention.
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These words have been held to encompass the requirements of a fair trial. For persons who are advocates of particular interests, or hold a particular intellectual perspective, the terminology of balancing is not always acceptable. The reason is obvious. Balancing necessarily results in occasions when the particular interest or perspective takes second place to some other right or principle. These issues have been much debated in the United States. Perhaps a better way of approaching the issue is to discard the metaphor of balancing and to focus on the scope of the right in issue. As one author has observed:.
He said:. For example, a statute requiring the exclusion of the press and public during the testimony of underage victims of sexual assault was found unconstitutional. Other common law nations also recognise the significance of freedom of speech and of freedom of the press. In comparative terms, however, the First Amendment ensures that the outcome of virtually every conflict between freedom of speech and other rights and principles is quite different in the United States than in all other common law nations. The position in Australia is exemplified by one case in which I sat, when the NSW Court of Appeal had to determine whether in the Australian law of contempt the conflict between freedom of speech and a fair trial was such that the balance had been predetermined by giving the right to a fair trial predominance.
At the time of publication that person had been committed for trial on charges of supplying heroin. The Court decided by majority that there was no predetermined balance and that the public interest defence to a prosecution for contempt had been made out. My judgment proceeded by balancing the public interest in freedom of speech against the public interest in the administration of justice. It appears to me that the same mild form of tilting existed in the courts of England and Wales, at least before the Human Rights Act UK.
The conflict between the principle of open justice and the principle of a fair trial is most acute in the context of jury criminal trials.