The closed material procedure (CMP) – ever since its introduction to English law – has been subjected to a very significant amount of academic criticism. But over time, the CMP has become increasingly settled as a fixture in English law. Whilst the existence of the CMP per se in English law seems settled, the extent of its deployment is not. Given this development, it seems important and constructive to examine whether – and the conditions under which – a CMP can ever be normatively justified, all things considered. Two propositions will be made. First, a common argument for the CMP – the maximising argument – does not demonstrate that the CMP is normatively justified, all things considered, for it does not sufficiently mitigate the two main objections to the CMP, based respectively on the principles of natural justice and open justice. Secondly, where the clear advantage variation is deployed – ie when a CMP allows the excluded party to make use of material that: (a) clearly advantages him; and (b) would otherwise be unavailable for the court's consideration – both objections are sufficiently mitigated. In such a case, the CMP is normatively justified, all things considered. This constitutes a limited normative case for the CMP.

This article by Paul Magrath, Head of Product Development and Online Content at ICLR (incorporated Council of Law Reporting), provides a survey of 10 key technological developments that, over time, have contributed towards or affected our understanding of the administration of justice. Developments involving digitisation, the internet, and artificial intelligence (AI) are dealt with in greater depth, with a particular focus on recent AI developments at ICLR.

The principle of open justice is a constituent element of the rule of law: it demands publicity of legal proceedings, including the publication of judgments. Since 2017, the UK government has systematically published first instance Employment Tribunal decisions in an online repository. Whilst a veritable treasure trove for researchers and policy makers, the database also has darker potential – from automating blacklisting to creating new and systemic barriers to access to justice. Our scrutiny of existing legal safeguards, from anonymity orders to equality law and data protection, finds a number of gaps, which threaten to make the principle of open justice as embodied in the current publication regime inimical to equal access to justice.

The coronavirus pandemic has had a profound effect on the conduct of legal business generally, but nowhere perhaps more drastically than on the conduct of litigation in the courts. This article by Paul Magrath considers how the judiciary, court services and practitioners of England and Wales have been working together to continue to administer justice in spite of the restrictions necessitated by the pandemic, and the challenges that have been faced in managing court information and reporting court proceedings.

The paper examines the changing nature of publicity in the courts, tracing three distinct but interconnected phases of publicity using Jeremy Bentham's theory of open justice and publicity as a framework. The first phase is press coverage, with the news media chronicling the justice system for the general population, most recently including televised court proceedings. The second is the appointment of Courts Information Officers, occurring as early as the 1930s and growing in impact since the 1990s, established to facilitate the relationship between courts and the news media. The third and final phase is the Internet, including social media, resulting in changes to news media models and driving contemporary practices of court-generated media. The paper concludes that, while media and communication practices have changed radically since the eighteenth and nineteenth centuries and the concept of publicity has shifted, Bentham's approach to open justice remains salient for twenty-first-century courts’ communication.

This article by Paul Magrath examines the tensions between data protection and transparency in the context of a long overdue digital revolution in the courts of England and Wales. Many traditional hearings are being replaced by virtual or video-conference type hearings, and may in time be dealt with by an online court. There are concerns that open justice may suffer. Yet any attempt to remedy this with more transparent scrutiny of court information will need to conform to the stricter data protection regime under GDPR as well as respecting the privacy of litigants and the presumption of innocence. The author is Head of Product Development and Online Content with ICLR and a trustee of the Transparency Project.