THE COMMONWEALTH JUDICIAL EDUCATION INSTITUTE
CHIEF JUSTICES' ROUND-TABLE DISCUSSION
BACKGROUND PAPER FOR
"THE MEDIA AND THE JUDICIARY IN THE DEMOCRATIC PROCESS"
H. Archibald Kaiser
Professor of Law
Halifax, Nova Scotia
Canada B3H 4H9
Telephone: (902) 494-1003
TABLE OF CONTENTS
This is a difficult paper to write, owing to its breadth and the complexity of the underlying issues. Beyond that obvious problem, I am conscious of my role here being somewhat different than the ones to which I am accustomed, as I am neither counsel nor author nor teacher. Here, I have the onerous responsibility of trying to produce a document which will interest you, which will stand out from the dry and often pedantic prose which you read on a daily basis and which will, I hope, assist you in this unusual opportunity for a pan-Commonwealth discussion. To make the paper more digestible and to try to ensure its usefulness for your deliberations, I have written it in a relatively conversational, first person style and have eschewed the usual and sometimes obsessive reliance on footnotes of the legal academic.
Perhaps I should also explain what I will not be doing in this paper. I will not be offering you an encyclopedic digest covering so many issues for the whole Commonwealth. Limitations of time and resources, as well as the pedagogical unsuitability of that enterprise discouraged me from taking that option. This is not a paper that purports to "state the law" as of September 23, 1995 in the Commonwealth. Neither is it a paper which will advance a single argument on the many subtopics I am considering, although it should present some consistent themes.
In thinking about how to compose a background paper for your session, I took the rather conventional common law approach of trying to find an appropriate definition of "background". The Concise Oxford Dictionary defines this often distorted term:
Of the various possible meanings above, I would choose to identify this paper as one which will be part of the scene which you will create during your upcoming weekend together and that will serve to provide a setting for you, the chief figures and foreground. I hope it will not be obscure and it may provide some information needed to understand the problems. No doubt it will be adventitious at times and I do hope it will provide some warm accompaniment for your deliberations.
The first section will present a broad perspective on the interests and actors common to many settings involving the media and the judiciary. It will highlight the value of openness in a democracy and will set out some of the countervailing pressures involved which will tend to push decisions on proceedings away from transparency and unfettered publication.
The paper then canvasses several general outlooks on problem solving which are employed by the judiciary now or could be invoked in appropriate circumstances.
Next, the paper sets forth specific themes dealing with court closure, publication bans and access to the courts by the media. This part is organized using various devices to help you to compile an inventory of the status quo and to set out a checklist of legal and policy alternatives.
The following section will suggest a multiplicity of potential steps which could be taken to establish a proactive stance on media related issues. The Round-Table discussion should enable you to think about how you can best implement any conclusions that you might draw from your weekend together. This should be useful in establishing a process which will assist your respective benches in moving in suitable directions.
The final part of the paper offers several hypothetical questions which may provide an additional basis for your discussions and which present some contemporary or at least foreseeable conundrums.
This paper will not provide a snapshot of the present or a blueprint for the future for any one of you. The social, historical, legal and constitutional frameworks from which you are drawn are so diverse that it would be delusional to think that I might offer that level of assistance. At best, my paper may be a catalyst for your discussions with your fellow Chief Justices. These exchanges may enable you to go back to your home countries with an invigorated outlook on many persistent dilemmas. I am solely responsible for the approach and content of this paper. Far more onerously, the public will continue to hold you accountable for decisions on the issues you will be reviewing. With the inspiration and support of your colleagues this weekend, you should be in a better position to tackle the many problems which surround the media and the judiciary.
II. REFLECTING UPON ONE'S ATTITUDINAL BASE
As much as your discussions may be informed by your knowledge of existing principles and by your grasp of your overall legal and constitutional framework, it does strike me that this is one area where a cold assessment of one's attitude towards the press is critical, even if you already have a fairly settled disposition. Whether you do or not, perhaps this is a good opportunity, in the comparative security of a confidential round-table discussion, for you to reflect upon those attitudes.
It is difficult to construct a continuum of judicial outlooks on press access and coverage of proceedings, but I suspect that many of you will share some antagonism towards the media. All of you will have examples where you might characterize coverage as being superficial, biased, inadequate, sensational, inaccurate, unfair, misleading, irresponsible, damaging to the public interest and so on. No doubt some of these criticisms are well-founded, particularly in environments where the media are perceived to be powerful, where there is increasing concentration of ownership and emphasis on profitability, and where the public is virtually wholly dependant on the media for information about judicial proceedings and assistance in evaluating their significance.
Perhaps it is important at the beginning of this paper to admit that all of you (and I) have harboured these outlooks on the media at various times. However defensible these condemnations might be, on occasion you may be projecting your own difficulties with the public's reception of the work of the court, your frustrations about the limits or waning of the democratic state, and your own instinctive critique of what many people will say is a decline in the level of public interest in and grasp of judicial affairs. None the less, the above recitation of criticisms of the media is intended to bring us all together at the beginning and to validate our difficulties with the job that the press has been doing. Simultaneously, one recognizes that as citizens, lawyers, and members of the judicial branch of government, it is self-serving to think that it is only the media that has failings and that the rest of us really are the sole trustworthy guardians of the public interest, an outlook which one of the authors I read for this paper described as "a diabolically dangerous conceit".
The problem as I see it is to recognize the validity of the critiques that one may advance of the media, to acknowledge one's personal or one's institutional limits, and then to determine what to do in response. There is really no point in declaring judicial war on the media in any country. The media are more adept at capturing the public imagination, so that stance would ultimately be fruitless in any event. Moreover, such a defensive posture will inevitably lead to further insularity, an escalation of hostilities and, all in all, a destructive vortex.
What then is a more constructive and promising attitudinal foundation? It is hard to be directive at such a high level of generality, especially given the many contexts and specific issues which you are regularly confronting, but I would somewhat timorously suggest that there is an attitudinal base which is more promising than simple enmity.
Often the best starting point is to admit one's own failures or limitations and to do so openly. Maybe you will, during this weekend and subsequently in your judicial homes, recognize that your court has not been as successful as it might have been in developing a positive base for media and judiciary interactions. You may acknowledge that the courts have not contributed adequately to the growth of other democratic institutions. For that matter, you may be dismayed at the overall real decline in democratic values and aspirations in your country. You may even be prepared to face the widespread scepticism, even hostility, that the public frequently displays towards the courts. Beyond this protected setting, the same level of candour may well be inappropriate.
Once judges admit imperfection, then it becomes easier to start an internal judicial dialogue, as well as to begin building a better relationship with the media. The next step might be to offer another olive branch to the media, indicating however subtly or decorously that the judiciary welcomes the scrutiny of the press and recognizes the vital role which it plays in democratic culture. This might be difficult to express, but giving this outlook some currency would provide a powerful impetus to the improvement of judicial and media relations.
One could indicate to the media that, although you recognize many actual or perceived problems in the courts and welcome media attention, you, as judges, have many other vital interests which require vigilance and, at times, protection. The judicial doors should be left open, but it would be fair and honest to say that access can never be totally without restrictions or controls.
Finally, thinking about the development of attitudes, one might then conceive of meaningful gestures which will evince acceptance of responsibility and which will be seen as welcoming behaviour by the media, while still maintaining a cautious distance from an atmosphere of unfettered coverage. A more collegial and peaceful atmosphere could ensue. Regardless of the progress one makes in the development of attitudes and relations, there will inevitably be tensions in judicial and media relations in a democracy. However, such institutional strains can be handled better when everyone recognizes the need for an assessment of one's attitudinal base and at least the possibility of the creation or tolerance of different outlooks.
III. BROAD BRUSH STROKES
It is probably pointless in a paper such as this to do more than provide the wash, as I think water-colour painters call the first coat which covers the whole canvass, or beyond that, to make the first tentative and broad brush strokes. Virtually all the detail comprising coherent pictures of individual countries will be offered by the participants in this Round-table discussion and by your benches at home. It should still be useful for you to engage in a review of general themes, which may be timeless or universal.
This section of the paper will encourage the reader to avoid simple dichotomies in either approaching general judicial and media relations or in resolving concrete problems. Outlooks circumscribed by strict boundaries of, for example, "we" on the Bench and "they" in the Media, or fair trial versus free press, or privacy versus access to information, will seldom be instrumental in the avoidance of problems or the resolution of issues. What will be encouraged here will be the identification of a large range of variables and the effort to try to provide some rough, if overlapping, categories which will assist in determining where a particular interest fits into the broad scheme of things. Depending upon what is being considered, emphasizing a broad array of interests may be unsatisfactory at times, but it may impart legitimacy to the courts' efforts to reconcile and balance tensions. As long as the judiciary tries to identify as many stakeholders and principles as possible, gives them a voice and then shows the litigants and the public that a good faith effort has been made to reach appropriate compromises, the work of the courts on specific problems should enjoy heightened levels of acceptance.
A. Different Actors, Varying Pressures and Contradictions
This discussion primarily concerns the role of the judiciary in assessing the interests before the court in matters involving the media. However, in order to understand the positions which might be occupied by actors other than the judiciary, some thought should be given to the circumstances that these others face. Within each role, there will often be contradictions within the same case and certainly comparing successive cases will evince inconsistencies. The mix of pressures and interests makes it hard to predict the postures of the litigants or of the press, or for the public to finally understand the decisions of the Bench.
The media clearly has many motives, some of which it articulates very proudly and forcefully. The right of the public to know about the judicial process is of great importance and to the extent that the media is the public's listening post at the courts, their claim to access has real validity. This is also connected to the broader interest in free speech and freedom of the press and openness and accountability in a democracy. Less frequently articulated by media representatives are the concerns of their employers in maximizing profits, which are gained by audience share or circulation figures, advertising rates and so on. The public's right to know can peacefully co-exist with this pressure to make money. However, what the public finds out from the press, how it is covered and what is sacrificed by the press may be pushed in different directions by the pursuit of profitability. Moreover, the press as an institution may want to maintain control over the dissemination of information. Out of this control, the press is able to build justifications for intrusiveness and to minimize the importance of the outlooks of individuals or even representatives from institutions that are not given voice through the media.
The prosecutor, as representative of the Minister of Justice, has a responsibility to ensure that a trial is fair and to try to protect the public interest. Stating what fairness means in a trial may be somewhat difficult, as the public is likely to think of the needs of the victim as being of equal or sometimes greater importance than those of the accused, depending upon the culpability of the accused and the heinousness of the crime. In any event, prosecutors are often buffeted about between the interests of victims in privacy, with regard to their identity, conduct or community history and the interests of accuseds, which are often in an open process with all of the public scrutiny that is entailed in that. They may also be simultaneously drawn in other direction at times, with the duty to maintain an untainted environment for proper factual determinations.
The defence lawyer may feel similar conflicting tugs. In some offences, the client may want to put the victim or the witnesses or even the state itself on trial, which may favour complete openness. On the other hand, accuseds might wish to ensure that every prospective juror is a tabula rasa and to impose a blanket prohibition with respect to all proceedings which occur prior to the trial, particularly in jury cases. Still other accuseds might prefer a trial held in complete secrecy.
The judge has to assess the interests of the media as well as the prosecution and defence, but as usual must go beyond that to think of the public interest at its broadest level. Judges want to be seen as the quintessential rational thinkers, which might lead in the direction of trying to ensure due process through a hermetically sealed fact-finding process. Judges want justice to be administered properly without interference from external forces of any nature.
On the other hand, the judge represents a vital branch of government in a democracy and he or she must try to ensure that justice is openly administered and that a free press is able to operate without being strangled by censorship or gratuitous bans on publication. The judge should be concerned that the courts are not misused and publicity helps to guard against this. Moreover, the judge will want to demonstrate that he or she is not predisposed towards either party and must take special measures to ensure that the public perceives that any differences in the manner of treatment among successive accuseds or litigants are minimized or justified.
In a particular case, then, this confluence of conflicting pressures for the various participants and especially the judge make simple calculations of who will occupy what position very elusive. For many judges, this may be part of the strength of the job, that is that one faces the challenge of trying to reconcile the irreconcilable and balance the dis-equilibrated. For other judges, this challenge may be among the most difficult parts of a judicial appointment, because of the high level of public scrutiny and the criticisms which inevitably follow decisions in the area. How then have judges tended to resolve this at times terrible puzzle? Many commentators have suggested that the courts conclude all too readily that the notion of the public trial should bow to other interests, whether it be fairness for the accused, the sensibilities of the victim, or solicitude for the state and the administration of justice. In many jurisdictions, the stage for this readiness to close the courts or restrict the flow of information has been luxuriously set by the legislative branch. Often, parliaments provide for the possibility of a statutory ban being invoked either as of right, or in circumstances where it would not occur to one as being obviously and always necessary, or with a very low threshold of proof. The general requirement of the court to give the legislature its way within constitutional limits and the willingness of courts to accede to litigants' applications for closure or restriction seem deeply rooted in many legal cultures, despite the obvious and recognized values of openness in a democracy.
B. The Centrality of Openness in a Democracy
Although all of you have no doubt heard the arguments in favour of openness in judicial proceedings frequently, perhaps ad nauseam at times, they still bear repetition in a paper such as this. The presumption of openness is embedded in our shared historical memories and present cultural awareness, to the point where it becomes awkward to try to disentangle openness from democracy.
One may start with the concept of legitimacy, which is an essential prerequisite for any branch of government, including the judiciary. The authority to determine disputes and to punish ultimately comes from the people, whose confidence will be retained only in an environment where they have the right to scrutinize virtually every part of the judicial process. When restrictions on publication are imposed, public scepticism can rise to impatience and even contempt. When citizens feel they are losing the opportunity to assess the actions of the state, they may suspect corruption and abuse of power and they may feel that they cannot deter state misconduct.
The public needs to be assured through openness that judicial standards and legal rules are being followed, that inconsistencies among cases are minimized and that they can protest when a vulnerable civil litigant or accused is being oppressed by other parties and especially the state.
The public appreciation of the criminal justice system is also upheld by a stance of openness. The principles of specific and general deterrence which are so much a part of our sentencing practices only become meaningful when sanctions are imposed in a public setting. The idea of secret punishment defeats one of the major aims of the criminal justice process, to educate the citizenry and discourage prospective wrongdoers from offending. The public should be reassured by witnessing the effective and smooth functioning of trials in the criminal justice system. Shared concepts of moral responsibility are thus vindicated and promulgated. Any tendency toward private remedies, self-help or vigilante justice is discouraged. Citizens are trained in the responsibilities of government and, where they observe errors or problems, are given fodder for reform.
Accuracy in fact finding should be enhanced by openness. Individuals with relevant information learn about allegations or disputes and are more likely to come forward. Witnesses are less likely to lie when under the glare of publicity.
Openness is thus seen as being critical to the interests of the accused in his or her having a fair trial, but the courts and the system of government in general conspicuously benefit from openness. The state cannot maintain its virtual monopoly on dispute settlement and its ultimate control over punishment in the absence of the spirit of legitimacy which is imparted by openness. Beyond the clear interests of the judiciary and the legal system at large, the press, with regard to both issues of principle (e.g., the public's right to know) and expediency (e.g., the desire to control information and to maximize profits) are also served by openness. In a perfect world, perhaps the public would know everything that goes on in the courts at every stage of proceedings and would still see people and events in the proper context, avoid prejudgments and understand the interests that all have, for example, in the security of the state and the protection of vulnerable individuals. If we could assume all of the foregoing, then the following sections which introduce some of the countervailing pressures towards restrictions on publicity would become unnecessary. Regrettably, that would be a most unrealistic assumption.
C. Countervailing Pressures
If my analysis stopped at making the case for openness, some important countervailing interests would be ignored. Indeed, although there are many variations on a hypothetical continuum of, on the one hand, total openness and, on the other, absolute secrecy, the judicial process of most nations fluctuates between the poles. Therefore, in even the most vigourous democracies, with a press that operates with few restrictions, which is oxygenated by profit and which serves an informationally omnivorous public, there is still no such thing as total openness. Before a matter comes to court, a very wide range of activities are engaged in by the litigants and their counsel, which are virtually immune from public scrutiny. The antecedent events arising before the Statement of Claim or Indictment are again typically beyond the public's gaze or perhaps even imagination. We could never pretend that we have totally open societies, even if the courts were far more accessible to the public and media.
The other end of the continuum is similarly an unrealistic pole. Even in relatively repressive states, dominated by unprincipled and teetering oligarchies, the people still talk in kitchens, churches and bars. The media still report something of the events which occur, although they may by considerably restricted by economic forces, politicians, as well as ultimately by the courts. What then would cause any country or individual judge to move from the glare of the public eye towards the judicial shade?
1. Protection of Privacy.
The judicial process will of necessity be intrusive for virtually all participants. The pressures of maintaining public confidence, warding off suspicion and mistrust and eliminating protections for the prominent or special interests are such that governments and the judiciary should resort to restrictions on publication only when special justifications can be shown. Of course, in practice, what initially might be seen as a special justification can become routinized to the point where it becomes presumptive. Privacy simpliciter will seldom be seen as an adequate justification for restrictions, unless this rationale is able to be sheltered under one or more of the following conventionally protected spheres. The process of the courts necessarily involves exposure to public view which usually bars an unembellished assertion of a privacy claim.
2. The Protection of Vulnerable Individuals.
Most states carve out places of solace from press scrutiny for those who are seen as having been victimized on a particular occasion or who are still thought to be in a vulnerable state. Therefore, restrictions on the publication of the name of victims and especially child victims in sexual assault cases, closure of the courts or publication bans while an individual's psychiatric or sexual history are reviewed (perhaps after a hearing on relevance and policy) and so on are common in democratic societies where transparency with respect to court proceedings is the norm. States conventionally assume a kind of heightened parens patriae responsibility for some classes of individuals and their involvement in the facts before a court, beyond the usual parameters of the mentally disabled and children.
3. Fair and Objective Conduct of a Trial.
In the criminal justice context where for serious crimes jury trials may be required or chosen, the protection of the accused from the adjudication of a jury whose decision-making capacity has been contaminated by advance knowledge of the details of a case has been seen as being critical. In civil jury trials, although the interests at stake are usually seen as being less important, there is still some concern over the prejudiced jury.
It is therefore common for legislatures and courts to consider many techniques for the reduction of the risk of jury contamination, including adjournments, changes of venue, special instructions on the need for juries to deliberate only based upon the evidence and jury selection procedures. Courts also have the right to restrict publication of interlocutory or trial proceedings to preserve the decision-making purity of the triers of fact, which powers may be given by legislatures or may be seen as part of the courts' ability to control their own proceedings. Preliminary hearings, bail proceedings, pre-trial motions, the contents of fitness assessments and many other matters are frequently subject to bans on publication. Depending upon the tools offered by the legislature and the extent to which others are invented by the judiciary, sometimes the efforts to restrict the public's normal right to know may become excessive or overreaching.
4. Public Morals.
With decreasing frequency, courts have resorted to their power to restrict publication to protect public morality. The basic interest is to protect the public from hearing evidence which will somehow damage the social fabric or impinge upon some widely shared belief system. Some accounts of depravity, heresy, brutality, corruption, abuse of power and general sordidness have historically been thought to be so inimical to the maintenance of a healthy society that judges have restricted publication of proceedings. Given that this ground for restriction may be the most amorphous and hardest to justify, its incidence is probably declining in most jurisdictions. However, the tools may still be available, theoretically, to ensure that only a professional judge rather than a fragile, malleable and undiscriminating public get to hear of the salacious or the starkly horrible.
5. Effective Administration of the Criminal Law.
Courts may occasionally impose restrictions on the identity of witnesses, the extent of utilization of certain investigative tools, the existence of additional ongoing investigations and other quasi-undercover matters. This may be a sub-set of the next type of justification, but it is occasionally used by the courts for justifying restrictions on publication.
6. State Security.
Most nations have some statutory provisions for the restriction of publication for evidence which may be inimical to national security. The definition of national security and the willingness of a court to lessen the flow of information varies considerably. However, the concept of the state secret and the inability of the courts to publish such material where exposure might jeopardize some identified vital national security interest is one of ancient lineage and virtual universality.
IV. IDENTIFYING STRATEGIES TO DEAL WITH COMPLEX CONFLICTS
There are many approaches which can be taken to find a route on which to travel, even before one can envisage a destination. Here, some effort will be made to sketch out broad judicial policy alternatives which can be considered before one embarks upon any particular strategy for resolution of apparent or real conflicts between openness and restriction.
A. Doing Nothing: Embracing Ad Hocism
Many decisions on issues relating to openness and media coverage seem to be very factually specific, making few references to larger issues and seemingly ignoring inconsistent precedents. This posture certainly has its attraction. Other actors in the legal system and the public at large do not have to face difficult questions of principle and can justify most outcomes, be they leaning towards restriction or openness. This may be appealing to the judiciary, because an atmosphere which tolerates the status quo, even if it is unpredictable and unprincipled at times, will remove pressures from the judiciary and preserve discretionary powers.
The unsuitability of this option is manifest for many judges, legislators and members of the public. Unless one has an extravagant faith in the invisible hand of the common law and the legislation that is on offer, a judicial system might have to tolerate too much inconsistency at the level of principle and practice.
B. Preferring Dichotomy or Imagining Away All the Other Sides of the Dice
My own predilection against a simple conflictual view of the free press and fair trial has already been announced. It is misleading to pretend that there are not several values which should vie for recognition. More threatening to a dichotomous media and judiciary world view is the recognition that values are inherently unstable, internally contradictory, hard to delineate, perplexing and certainly not monolithic. Moreover, values which are superficially in opposition may well be able to be reconciled or at least be reduced in their level of confrontation. This is one of the many areas in the law where choosing between only two options may yield bad solutions, but in this context, may also jeopardize the legitimacy of the law and the courts themselves.
C. Entrenching Some Values Over Others
An approach to the resolution of value conflicts which announces that there is a static hierarchy of values has a temporary attractiveness. Once an interest or value is chosen as being hegemonic, then subsequent exercises are relatively easy. The problem is that the short and long term costs of discounting other values or even denying their existence in an individual case may be very great indeed.
D. The Equal Treatment Solution
Determining on the other hand that there should never be a hierarchy of values, assuming that every value is important and giving them equal weight seems symmetrical, but it may be wholly artificial and untenable. This form of equality could lead to confusion and paralysis, when one faces the inherent artificiality of such a model. Such a choice in this complex juridical and political setting cannot provide solutions to dilemmas which will satisfy the litigants or the public.
E. Searching for Outcomes Which Minimize Infringements
The aspiration of maximizing the weight of all values, without sacrificing any, is appealing. It is probably unrealistic to think that there will never be an infringement of any values when one adopts this ambitious least restrictive alternative type approach. Nonetheless, even if this outlook remains only an aspiration, it will have positive effects on both results and the public's assessment of the degree of legitimacy conferred by a particular decision. Acknowledging that it is impracticable to keep all competing values in a pristine state, but still trying to preserve as much of each as possible is not nearly as Polyanna-ish as may first appear. On the contrary, it may be not only the most estimable approach in principle, but the most expedient in practice, especially where the judge is open about his or her strategy.
Therefore, the judge who, for example, explicitly recognizes the significance of openness, fair trials, privacy, public morality, the proper administration of justice and national security has already done a favour for the public by showing that a complex analytical outlook can be employed. Determining that all of these objectives can be addressed, if not fulfilled, without imposing any or undue, or unjustified, or excessive, or inefficacious restrictions on free expression will heighten public support.
V. AN INVENTORY OF SPECIFIC ISSUES
This part of the paper will at least set out many specific issues which have to be considered against the general background which has been sketched by me so far. Without knowing the most pressing or controversial problems for your jurisdiction, it is hard to suggest that any one of them deserves special concentration in the paper. However, your Round-table discussion will give you the opportunity of pointing to the ones which are most urgent for the attention of your court and no doubt you will benefit from the discussion which will follow among your fellow judges. For some issues, I have tried to provide lists of questions which might assist you in painting an overall picture for yourself and your colleagues. For others, I have devised a form of graphic check-list aimed at imparting a structure for discussion. In either case, I would urge you to respond to the questions or complete the grids. If enough of you are able to do this by your arrival, conference organizers will try to collate your responses, reproduce and circulate them before the first full day of proceedings. If you briefly and informally write such a short response or you merely use these devices as a way of organizing your approach to the Round-Table, your debates may be more focused.
A. Court Closure
The ultimate restriction on access to the courts by citizens and the media is obviously the closure of the court to everyone other than the parties, their counsel and court officials for an entire case. My assumption is that this is a relatively rare measure in virtually every jurisdiction and one that a judge would take in only the most exceptional circumstances.
Perhaps more frequently, judges exercise their statutory or common law powers to close the courtroom during portions of a trial for very specific issues concerning which a witness may be testifying. In this latter sense, there may well be an overlap with the discussion on various types of publication bans, in that the same interests would be being protected, although court closure is a more radical and fundamental measure. The following questions are by no means exhaustive, but even tentative or partial answers on some may be effective aids to your discussion.
1. Total closure
(a) In what circumstances does your jurisdiction permit a total closure of a proceeding?
(b) What is the statutory foundation for such closures?
(c) Do you see any common law basis for such orders?
(d) During your career as either a judge or lawyer, how many such applications for closure have you seen and what was the result of the application?
(e) What interests could you identify as being sufficiently deserving of protection as to justify such closures?
(f) What effect do you believe that such closures have had on the proceedings themselves and on the public's outlook on the proceedings?
(g) Do you see a current need for the preservation of such powers?
(h) If there is still a case for such closures, what type of publication do you think should be permitted regarding the nature of the case, the parties, the arguments, and the results?
2. Partial closure
(a) In your jurisdiction, what types of proceedings are subject to partial closure orders?
(b) What are the typical statutory foundations for such orders for partial closure?
(c) Is there a presumptive and mandatory partial closure provided for by statute or common law?
(d) If the procedure requires a motion, who has the ability to request partial closure?
(e) Who, in the instance of mandatory, presumptive or permissive partial closures, is given notice of the application and standing to make argument?
(f) Does the press have an opportunity to respond to such applications?
(g) What has been the historical incidence of such applications and what is the current trend in judicial responses to such applications?
(h) What has been the reaction of the scholarly and media community to such applications?
(i) In circumstances where partial closure is ordered, what type of publication is permitted?
(j) What interests are usually cited for the partial closure order?
(k) Is this an area which requires further judicial scrutiny in your jurisdiction or has there been an appropriate equilibrium established by a combination of statutory rules and common law decisions?
(l) Is this an area where there is an opportunity for the judiciary and the media to reach a better level of understanding and, if so, how might this be effected?
B. Publication Bans
Short of closure, many courts recognize that the usual openness of proceedings must be intruded upon at times in order to protect other important interests. Publication bans have been part of the judicial landscape for long enough that, absent constitutional challenges, they are likely to be questioned very infrequently, except in the cases which are otherwise highly visible. However, either at these proceedings or in your own judicial environment, a survey of issues and a report card on each one of them is probably a measure worthy of consideration, in light of their importance and their controversial nature. As an aid both to your own institutional introspection and to provide an opportunity for a survey of practices in your jurisdiction, I offer the following grids which provides a quick depiction of both the interests under protection and the extent and source of protections.
Once you have examined the grid and put checks or explanations where appropriate, you may have a better overall perspective on the extent to which publication bans are permitted in your jurisdiction and some of the vital substantive and procedural themes. Perhaps you will want to share your reaction to this graphic portrayal of publication bans in your jurisdiction with other judges attending the Round-table discussion, or you will actually exchange your grid with fellow judges, in order to see whether there is a similar level of judicial development on publication restrictions in your state. In any event, I have used the vertical column to repeat the global rationales for publication bans, so that each sub-issue may be referred back to the need for justification.
PUBLICATION BANS TABLES
C. Access to Court by the Media
In order to ensure that the responsibility of the media to inform the public about proceedings can be discharged, there needs to be a clear regime providing for the many questions surrounding access by the media. Below I have tried, again in a check-list fashion, to suggest some of the major issues that are normally considered with respect to media access. Some may be well settled in your jurisdiction, while others may demand additional attention by the courts, the legislature or the media. At the very least, regardless of the combination of rules which are chosen, the media and the courts need a comprehensive, clear and workable series of guidelines in order to minimize disputes. The following section may assist in trying to determine what is the best tool for ensuring that both the media and the judiciary have a crystalline understanding of their rights and responsibilities.
ACCESS TO COURT TABLES
VI. SITES FOR ACTION AND PROGRESS
Assuming that positive steps on the attitudinal front pave the way for concrete institutional achievements, that one acquires a nuanced grasp of major policy themes and prospective resolutions, and paints a picture of one's own juridical landscape, the complicated questions of what the judiciary can actually do to advance its relations with the media remain. You do not have the same freedom of expression that I and other citizens have, but you may well be able to effect significant changes in your environments in many public and less visible ways. I shall try to provide some suggestions as to the manner in which positive attitudes and institutional self-awareness can be translated into real accomplishments. The following is not intended to be an exhaustive, hierarchical or universal list. Depending upon your jurisdiction, you may say that some of my suggestions are inapplicable, or would be unproductive, or even positively damaging. Even if your reaction is in part or wholly negative, then I will still have served a useful function if you are prodded into thinking about other, more promising, alternatives. Your fellow judges and the public will inevitably be better off if you conclude that Professor Kaiser has missed the boat, but you supply either an alternative mode of transportation or perhaps a genuinely unsinkable counterpart.
A. The Common Law: Interpretation and Rule-Making
The judicial branch of government already carries a heavy load when it comes to the substantive and procedural issues which this paper has surveyed. However, your decisions in individual cases still provide opportunities for providing a public announcement of the judicial posture on closure, publication and media access issues. You do not have to make extemporaneous or overbroad statements of principle, which would be antithetical to some of the traditions of the common law. On the other hand, a decision as modest as a determination on a Chambers motion with respect to access to a particular exhibit or, at the other end of the scale, a case which establishes a constitutional determination of the ambit of freedom of the press nationally, offer the press and the public a precise indication of the judicial attitude on the openness of the courts and media entitlements. This is your daily bread, and many of you have already leavened the environment in a thoughtful and liberal fashion, so perhaps nothing more needs to be said at this point.
B. Rules of Court
I wonder how many jurisdictions represented at our seminar have comprehensive statements in the Rules of Court dealing with issues surrounding access of the public and media. As the courts have virtually exclusive control over their process and proceedings, it may be that a revised or newly created statement of rules would be the most productive place for indicating the judicial perspective on many aspects of media access. Without wanting to reinvent the wheel, you may find that your brother and sister judges at this Round-table may be able to send their own rules of court dealing with these difficult subjects, which you could use as a base which you might review to suit your own setting. Certainly, the simple device of circulating the names and addresses of all participants and asking for everyone to send everyone else their rules in these areas will expedite your consideration of the Rules of Court.
C. Judicial Council Statements of Principle
Before, or as a supplement to the specificity of Rules of Court, many benches may find that their professional associations or like bodies provide an opportunity to make broad declarations of principle which will enure to the benefit of judicial/media relations. Although these do not have the same force of law as a Supreme Court judgment or a promulgated set of rules, they may be very instrumental in the development of more informed and receptive judicial and media attitudes. Moreover, there is some comfort in statements of principle which provide a form of guidelines or preamble. There is then room for interpretation in specific cases or in one's overall development as a judge in these areas, but with the stage having been set by one's judicial peers.
D. Selection of Judges
Depending upon the jurisdiction, the judiciary may have varying levels of involvement in the policies, procedures and actual determinations with respect to new members of the Bench. Although there are many criteria which must be considered in order to make the best judicial appointments, the issue of the prospective judge's outlook on media access, his or her sensitivity towards coverage and criticism and his or her receptivity towards the resolution of possible conflicts between major issues of principle involving the media, fair trial and the judiciary as a branch of government, would certainly be relevant matters to bring to any selection process.
E. Continuing Judicial Education
Judges in virtually every jurisdiction are enjoying more frequent opportunities for continuing their professional development after taking their appointments. This very conference is a good example of senior judges taking the responsibility for ensuring that they give careful thought to problems surrounding the media and the courts. It may well be that this occasion and the general motivation shared by most judges to deal with similar problems effectively will result in benches ensuring that their judges have regular exposure to the broad range of concerns dealing with the media and the courts. Judges need to discuss issues in an atmosphere which favours their coming to grips with tough problems in a setting which recognizes the acceptability of ambiguity and even confusion at times, but which will not jeopardize public confidence.
F. Judicial Evaluation
Some courts in the United States and Canada (Nova Scotia) are now beginning to experiment with a limited form of evaluation of judicial conduct. Feedback is often initially obtained from lawyers on an anonymous basis, but there are prospects of also soliciting reviews from members of the public, the media, victims and even accuseds. Regardless of the respondent, in jurisdictions which do provide for judicial evaluation, a series of questions relevant to the themes explored in this paper might assist the judge in his or her professional development.
G. Training and Effective Deployment of Support Staff
There are many important tasks relating to the proper governance of relations between the media and the judiciary which can be handled by judges directly. On the other hand, there are other problems which can be avoided with the thoughtful and efficient assignment of support staff. Depending upon the jurisdiction, there are varying levels of use of staff members. The traditional range of activities has probably contemplated mainly mechanical or access type duties, wherein the spokesperson or clerk would ensure that the media had access to materials, facilities within courtroom buildings, the rules of the court, and so on. However, it is possible to envisage a broader role for support staff, which may well be of assistance to the judiciary in maintaining whatever is the appropriate level of distance from the media. Therefore, legally trained and media astute legal officers can provide briefing sessions, on-the-record comments which assist in explaining judgments, advance notice of important decisions which are to be handed down, and information or problem solving fora with regard to concerns of the media or judiciary, but which cannot be addressed on a face-to-face basis.
H. Joint Media and Judiciary Committees
Some jurisdictions have established standing committees composed of representatives of the media, members of the Bench, support staff and possibly representatives from the Bar as well, who meet regularly to address either broad policy issues or specific problems which have arisen from the regular course of business in the courts. Such committees have the potential of offering a site for communication which is effective, but nonetheless less problematic for the judiciary, owing to its operating in comparatively private circumstances and on an off-the-record basis.
I. Joint Conferences and Seminars
For the benefit of both members of the judiciary and the media, the possibility of getting together to participate in conferences or seminars could be fairly exciting. Often, issues will be raised by the media concerning publicity of such proceedings, as the Bench will favour privacy, while the media will be inclined towards openness. These kinds of difficulties can be worked out in practice, while still permitting representatives from the various institutions to benefit from proceedings which have a purpose, structure and the opportunity to evaluate outcomes. Some judges may feel nervous about participation in such settings as they may raise the spectre of interference with judicial independence. This important issue is one concerning which judges are increasingly vigilant, but which does not necessarily condemn judges to isolation from events where the public interest and the legitimacy of the courts will be advanced by judges' conscientious participation.
J. Broadening One's Context
This occasion itself is a fine example of judges hearing from a very wide range of fellow judges. It should have the inevitable result of broadening awareness of the shared nature of problems concerning the media and the judiciary and the many interesting solutions which can be devised to confront the challenge. Government fiscal restraint will impinge upon judges having a very ambitious program of extra-territorial learning, but, on the other hand, the invitation of individual judges from foreign jurisdictions to visit local Benches could be relatively cost-effective, while still guaranteeing the Bench the chance of learning from their brothers' and sisters' experiences.
K. Regular Postmortems
Many professions conduct what one might call "critical incident reviews" in the aftermath of serious problems, especially where public attention will be focused. There is no reason why judges could not think about the possibilities of getting together following an extraordinary event, whether it was perceived positively or negatively in the public eye. Therefore, the convening of an internal judicial conference following perhaps a binding high court decision on publication bans or a notorious case which brought increased media scrutiny would be appropriate for the extraordinary attention of a Bench. Future errors might be avoided or obvious successes could be improved upon.
L. Law Reform Commissions
Many states have either ad hoc or permanently constituted law reform commissions. In the normal course of events, judges should be asked about discussion papers or draft legislation and will have the opportunity to offer comments before reports or legislation are finalized by law reform commissions. In jurisdictions where the courts see a need for the attention of law reformers, messages can be given to commissions through decisions, as judges often deftly indicate that they are confronting legal problems with unsatisfactory tools. It may well be just as appropriate for members of the Bench or judicial associations to suggest research priorities, as well as participating in projects which engage themes surrounding the judiciary and the media.
M. Input to the Legislative Process
Judges in some jurisdictions have determined that some problems are of such extraordinary importance that they will either express a view to the executive or legislative branches when requested or will take it upon themselves to ask for a consideration of an issue. The difficulties surrounding relations between the judiciary and the media could, in some jurisdictions, be sufficiently salient or urgent that Chief Justices or judicial associations should consider asking the legislature or executive to review certain matters. This could be on a relatively narrow subject basis, such as the felt need by the judiciary for revision of criminal statutes dealing with the publication of victims' names, or it could be on much broader topics, such as amendments to statutes constituting the courts. While such communications will probably remain relatively rare, they may nonetheless be virtually essential for some kinds of problems at certain junctures in the history of a nation's constitutional and legal development.
N. Judicial Newsletters
Judicial associations frequently publish professional journals or newsletters for the members of the Bench, as well as occasionally for a broader audience. This is one setting where judges can feel relatively comfortable about either soliciting views from contributors from the media, or Bar, or perhaps occasionally writing their own articles on important topics. As was mentioned earlier, there may be extraordinary prospects here for enlarging the context or audience for the members of the Bench. For example, the Commonwealth Judicial Education Institute or parallel institutions could think of expanding existing newsletters to regularly advise courts of developments or to provide an outlet for judicial expression.
O. Keeping Abreast of Technological Changes
In the era of the Internet, judges are presented with extraordinary problems in determining how to address issues of openness or restrictions on the media. Clearly this is one area where the legislative and judicial branches need to devote their attention. Publication bans may be rendered virtually ineffective when information which is the subject of a ban is widely circulated on computer networks internationally. The media assume less significance for Internet users and the media monopoly on information dispersal is eliminated.
P. Public Visibility of the Judiciary
I recognize immediately that many of you feel that there is already sufficient public visibility of your work in terms of the conduct of trials and publication of decisions. However, what is missing from this kind of formalized public appearance is the chance for the public to understand better the role of the judiciary and, in this context, its difficulties in balancing the many priorities that the public assigns to it in determining the boundaries of, for example, free expression, freedom of the press and fair trials. It would be anathema for the judiciary to consider any type of involvement in the media where the judges' participation could compromise the integrity of the judicial decision making process, especially in terms of specific cases. However, having said that, perhaps Benches can consider either designating members of their courts to take part in public appearances outside the conventional fora, or offering a judge a form of sabbatical, which could include talking to the public about contemporary issues, in general terms, or electing a representative from the Bench to engage in wider public discussion. The possibility of judges being part of radio phone-in programs or television interviews may seem startling at first, but with careful planning with regard to representation, range of issues, outer limits, choice of venue and frequency, some courts may find that the level of public understanding and legitimacy accorded to the courts in specific areas or more generally may be improved by this kind of relatively unusual judicial appearance.
The foregoing list of potential ways of addressing difficult problems in media and judiciary relations is by no ways exhaustive, nor is it particularly innovative. What might be relatively novel for many courts is to try to assess the extent and quality of judicial media relations in their jurisdiction and then to do some long term planning to address the thorniest difficulties, avoiding the pitfalls which other jurisdictions have experienced and which the local Bench might anticipate.
In some senses it seems inappropriate to write a conclusion for this background paper. The judges attending the round-table discussion will advance their understanding of issues and their plans for the future directly as a result of the conference. However, this vital work will have to be continued in each jurisdiction. Moreover, the nature of the issues which have been surveyed is such that there will never be a point of absolute equilibrium with no need for further development. Tensions between the judiciary and the media on issues surrounding court closure, publication bans and general access are inevitable in a healthy democracy. The issues which have been canvassed herein and which will be surveyed in your round-table discussion will be revisited regularly. Perhaps this regular reassessment will be facilitated by your use of this chance to survey your own jurisdiction, compare it with others and engage in some planning for the future for your institution.
Thank you for this opportunity of contributing to your discussions. It would be nice to think that I have assisted you. At the very least, I hope that I have not impaired the organization or efficacy of your important exchanges.
VIII. HYPOTHETICAL PROBLEMS
The following hypothetical problems were composed with the intention that they could provide a basis for a relatively specific discussion of some of the dilemmas and potential resolutions which have been presented in this paper. The scenarios were sometimes suggested by reports of real events or cases and sometimes emerge from the author's imagination. In either event, it is unlikely that each problem will have equal resonance with each jurisdiction represented at the Round-Table. None the less, there should still be some value in seeing how fellow judges would confront some issues, even if they are not likely to occur in your country. These scenarios are not intended to unduly confine your discussion, but merely to be one vehicle to assist you in learning from each other. As such, you may wish to add or amend facts or issues without being accused of "fighting the hypothetical".