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Hendersons - Barristers' Chambers
Articles Commercial 12th Dec 2013

Public and private hearings

Introduction – a public hearing 

1. As a general rule the English system of the administration of justice has required that it be done in public. Most healthcare regulators’ substantive proceedings have been held in public for many years: Joanna Glynn QC and David Gomez, Fitness to Practise: Health Care Regulatory Law, Principle and Process at para 15-026; see also Disciplinary and Regulatory Proceedings by Brian Harris QC and Andrew Carnes, 5th Edition, 2009 at para 11.01 which states that “the genius of our age is inimical to secrecy.”

2. The principle of open justice has long been recognised. In Scott v. Scott [1913] AC 417, Lord Shaw of Dunfermline at p476 said that publicity in the administration of justice was “one of the surest guarantees of our liberties”, and cited from Bentham and Hallam “publicity is the very soul of justice.” For modern statements of the principle see Attorney-General v. Leveller Magazine Limited [1979] AC 440 at 450; R v. Legal Aid Board ex parte Kaim Todner [1999] QB 966, and Sir Jack Jacob’s Hamlyn Lecture, The Fabric of English Civil Justice (38th Series, 1987), quoted by Lord Woolf MR in Hodgson v. Imperial Tobacco Limited [1998] 1 WLR 1056 at 1069.

3. Sir Jack Jacob, in trenchant terms, said:

“The needs for public justice, which has now been statutorily recognised, is that it removes the possibility of arbitrariness in the administration of justice, so that in effect the public would have the opportunity of “judging the judges”: by sitting in public, the judges are themselves accountable and on trial.”

4. In Storer v. British Gas Plc [2000] 2 All ER 440 the Court of Appeal said that the principle was no less important in employment tribunal proceedings than in other proceedings. In that case, a coded door lock was a physical barrier to prevent access by the public to a hearing and there was no chance of a member of the public dropping in to see how the tribunal was conducted. The fact that no one had attempted to gain access did not matter. The court held that the tribunal had been sitting in private and it had no jurisdiction to do so, and accordingly its decision would be quashed and the matter remitted for re-hearing before another tribunal. This followed the decision in McPherson v. McPherson [1936] AC 177 where Lord Blanesburgh said that it was immaterial whether any member of the public was actually present or not.

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