Transparency, Accountability, Open Justice, and Public Facts

Abstract This chapter argue that respect for democratic transparency, accountability, and open justice is compatible with respect for the rights and interests of people with criminal records. Presumptions in favour of publicity or, conversely, of confidentiality should differ between different areas of the criminal justice system, such as courts, policing, and probation, as conflicts between individual rights to privacy and the public right to know are resolved in different ways. There are strong reasons for adopting a presumption in favour of openness and real-time publicity in criminal trials, and for giving the accused opportunities to draw attention to their case and invite scrutiny. But the question of whether there are grounds to name defendants and those convicted beyond the forum of the court can only be answered by considering the interests at play in the particular case. For this reason, it should always be a routine part of the judge’s decision-making about the conditions under which any specific trial should be conducted. In contrast, policing should operate under a strong presumption of confidentiality with respect to the identities of suspects, but have wide discretion to publicize those identities when doing so serves an important public interest.