Professional Documents
Culture Documents
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b. Court of Session Act anent advising with open doors before the session2
Our sovereign lord and lady the king and queens majesties, considering that the advising of causes with open doors is usual in the sovereign judicatories of other nations, and that the like practice here will be of advantage to the lieges, do, with advice and consent of the estates of parliament, statute and ordain that in all time coming, all bills, reports, debates, probations and others relating to processes shall be considered, reasoned, advised and voted by the lords of session with open doors,
Evidence Act, APS viii 599, c.30 <http://www.rps.ac.uk/trans/1686/4/46> accessed 3 March 2012 Court of Session Act, APS ix 305, c.42 <http://www.rps.ac.uk/trans/1693/4/93> accessed 3 March 2012
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Also worthy of note is the dictum of Lord President Inglis in Richardson v Wilson (1879), regarding the right of newspapers to be in court to report proceedings. He stated that
The publication by newspapers of what takes place in court at the hearing of any cause is undoubtedly lawful: and if it be reported in a fair and faithful manner the publisher is not responsible though the report contain statements or details of evidence affecting the character of either of the parties or of other persons; and whatever takes place in open court falls under the same rule, though it may be either before or after the proper hearing of the cause. The principle on which this rule is founded seems to be that, as courts of Justice are open to the public, anything that takes place before a judge or judges is thereby necessarily and legitimately made public, and, being once made legitimately public property, may be republished without inferring any responsibility. [Emphasis added]
Sweden Probably, most would not be surprised to learn that Sweden has a tradition of open justice. However, historically, the main tack adopted with respect to open justice in that jurisdiction has been rather distinctive. The key development took place during the so-called Age of Liberty, 1720 1772.4 Whilst largely connected with political liberty principally the rise of the four Estates (jointly, the Parliament/Riksdag) vis--vis the Monarchy the period did also see increasing demands for civil liberty. A representative sentiment from a little-known source is that expressed by the world-renowned botanist and apostle of von Linne, Peter Forsskal. Almost unknown is the fact that he also authored a controversial pamphlet, Thoughts on Civil Liberty (1759).5 Committed to openness in the broader context of social and scientific progress, Forsskal wrote:
So, the life and strength of civil liberty consist in limited Government and unlimited freedom of the written word... ....it is also an important right in a free society to be freely allowed to contribute to societys well-being. However, if that is to occur, it must be possible for societys state
Cass means To make void, render ineffective, annul or disable <http://www.rps.ac.uk/static/glossary.html#C> accessed 3 March 2012 4 Michael Roberts The Age of Liberty: Sweden 1719-1772 (Cambridge University Press 2003) 5 <http://peterforsskal.com/node/25/#main-text> accessed 9 March 2012; the printed copy of the text with commentary is available at <http://www.peterforsskal.com/buy> accessed 9 March 2012
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of affairs to become known to everyone, and it must be possible for everyone to speak his mind freely about it. Where this is lacking, liberty is not worth its name.6
The pamphlet was banned on the day it was published. This helped fuel the gathering firestorm that led, ultimately, to the passage of the worlds first freedom of information act in December 1766. In that sense, Forsskals work was an important intellectual catalyst for the measure. Forsskal himself was dead (aged 32) by the time of its adoption, having contracted a fatal illness in Jerim, Yemen, whilst part of an expedition to Felix Arabia commissioned by the King of Denmark. Conventionally understood, freedom of information laws are means of legally compelling public authorities (e.g., central and local government) to disclose information they hold. Significantly though, the 1766 law contains several sections pertinent to the issue of making the administration of justice more transparent and giving the right to publish legal and judicial information. On a point of nomenclature, the Swedish law is usually referred to as the Freedom of the Press Act (1766). This is somewhat misleading. The full title of the measure is His Majestys Gracious Ordinance Relating to Freedom of Writing and of the Press.7 But, there was no developed press in the sense of a media industry in mid-eighteenth century Sweden. The connotation of press (from the Swedish tryckfrihetsfrordningenin in the laws title) is a reference to the printing press. Tryck means something that is printed. The 1766 Ordinance addresses two main topics. First, it deals with the abolition of prior censorship and the freedom to publish. The latter is far from absolute, a number of matters being made legally immune from criticism or questioning. Second, there is the appearance of the legally revolutionary principle of public access to official information. This is described by the Swedish term offentlighetsprincipen, which has an even broader connotation.8 There are several sections which specifically mention court and legal information in addition to what would be included more conventionally as official documents. Article 6 states:
This freedom of the press will further include all exchanges of correspondence, species facti, documents, protocols, judgments and awards, whether they were produced in the past or will be initiated, maintained, presented, conducted and issued hereafter, before, during and after proceedings before lower courts, appeal and superior courts and government departments, our senior administrators and consistories or other public bodies, and without distinction between the nature of the
Op.cit., paras 7 and 21 English translation of the 1766 Ordinance by Peter Hogg, former Head, Scandinavian Section, British Library, <http://www.chydenius.net/pdf/worlds_first_foia.pdf > accessed 7 March 2012 8 <http://www.sweden.gov.se/sb/d/2184/nocache/true/a/15521/dictionary/true> accessed 9 March 2012
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Article 7 continues:
Whereas a legally correct votum does not have to be concealed in cases where a decision is arrived at only by the vote of the judge; and as an impartial judge has no need to fear people when he has a clear conscience, while he will, on the contrary, be pleased if his impartiality becomes apparent and his honour is thereby simultaneously protected from both suspicions and pejorative opinions; We have therefore, in order to prevent the several kinds of hazardous consequences that may follow from imprudent votes, likewise graciously decided that they shall no longer be protected behind an anonymity that is no less injurious than unnecessary; for which reason when anyone, whether he is a party to the case or not, announces his wish to print older or more recent voting records in cases where votes have occurred, they shall, as soon as a judgment or verdict has been given in the matter, immediately be released for a fee, when for each votum the full name of each voting member should also be clearly set out, whether it be in the lower courts or the appeal and superior courts, government departments, executory authorities, consistories or other public bodies, and that on pain of the loss of office for whosoever refuses to do so or to any degree obstructs it; in consequence of which the oath of secrecy will in future be amended and corrected in this regard.
This short tour of two jurisdictions north and northwest of England highlights the point that the legal roots for the concept of open justice are rather varied. The Scottish items are sourced in pre-Union Scottish Parliamentary Acts. The Swedish contribution emerges from a less likely basis: its famous 1766 Ordinance.
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Citing historical sources, however, is no guide to the current vitality of the notion in either jurisdiction or the ways in which it can be expanded and improved upon.
Dr David Goldberg Dr David Goldberg is an information rights academic and activist. He directs deeJgee Research/Consultancy and is a Lecturer for Glasgow Caledonian Universitys communications law course and Senior Visiting Fellow, Institute of Computer and Communications Law in the Centre for Commercial Law Studies, Queen Mary, University of London.