Introduction

This chapter provides a descriptive analysis of 21st century criminal justice remodelling, including the ways in which digital technology has been adopted in the English and Welsh justice system, and some of the ramifications for digital data dissemination and publication. We will draw out connections between digitalisation and the principle of open justice as the chapter progresses. We focus on aspects of HM Courts and Tribunals Service (HMCTS)’s much criticised and delayed £1.3bn programme of modernisation and digital reform commenced in 2016 (HMCTS 2023c; Public Accounts Committee 2023). These include: the Single Justice Procedure (SJP) for the prosecution of minor offences, video-enabled justice (VEJ), aka virtual, or remote, courts in which some or all participants engage in hearings remotely, as well as digitalisation of data processes. We discuss the ways in which the COVID-19 pandemic has accelerated the use of remote hearings in criminal justice, and the continuation of these methods.

We consider the implications of these changes for traditional approaches to criminal justice system accountability, and open justice, in particular. To what extent do digital court processes enable participants and the public to engage in the justice system and hold it to account? How, for example, is information about an entirely administrative or virtual process communicated to the public? This chapter also considers the digital context outside the court room: how is justice system data being collected, processed and disseminated online, by different public and private sector actors?

In this chapter, we also look at equality of access to digital justice systems, in terms of funding, technological and legal literacy, as well as access to tools. In this context, we discuss power relationships and how technology is changing the dynamic and interactions of the digital and physical court room, making participation and engagement more difficult and undermining system accountability.

Single Justice Procedure

We begin our review of major reforms to summary criminal justice and open justice with the Single Justice Procedure (SJP). As a result of Part 3, Criminal Justice and Courts Act 2015, adults charged with summary only non-imprisonable offences may have their case dealt with in writing without ever attending court. The SJP allows people to enter pleas in writing or online. If the person pleads guilty using the SJP, the case is considered in camera by a single magistrate and legal adviser, but without either prosecuting or defending lawyers attending court.

Introduction

This chapter provides historical context on the way in which open justice and accountability have developed in England and Wales. It considers modes of accountability in the criminal process, public participation in the criminal courts, and its development in recent decades. We consider the place of open justice in a wider tradition of justice system accountability, sitting alongside and underpinning other important tools, such as inspectorates, complaints mechanisms, rights of appeal, post appeal reviews and judicial review. As part of this exercise, we detail the main methods for contemporary observation of physical criminal court hearings and access to different information types.

We also explore the main theoretical rationales for the contemporary approach to open justice – as articulated variously by practitioners, scholars, and judges – which can be categorised, we suggest, as punitive (shaming), deterring, educational, scrutable (ensuring fairness and proper conduct). The chapter then critiques these various arguments, proposing that understandings of justice system accountability need to recognise the distinction in the rationales, and their weaknesses and strengths. We introduce one of our core arguments, that policy and law makers should prioritise informational transparency as a means of scrutiny and education, rather than as a means of an individual’s punishment and deterrence.

Accountability and access to justice in the criminal process

Although often conflated with the ability of people to access legal representation, access to justice is a broad and multifaceted concept. Emerging in the 1970s as a social right (Cappelletti et al 1976), access to justice has come to encompass issues such as complexity in application procedures (Adams-Prassl and Adams-Prassl 2020), intellectual, practical, emotional, and attitudinal barriers (McKeever et al 2022), and the ability to understand and participate in proceedings (Welsh 2022), in addition to the ability to access specialised legal advice (Cornford 2016). Byrom offers an ‘irreducible minimum standard’ of access to justice ‘composed of the following elements: (i) access to the formal legal system, (ii) access to an effective hearing, (iii) access to a decision in accordance with substantive law, (iv) access to remedy’ (2019, p 4). Emerging from these understandings of access to justice are multiple principles that people may need to invoke to vindicate their legal rights in any circumstance.

The Law, Society, Policy series publishes high-quality, sociolegal research monographs and edited collections with the potential for policy impact. Cutting across the traditional divides of legal scholarship, Law, Society, Policy offers an interdisciplinary, policy-engaged approach to socio-legal research which explores law in its social and political contexts with a particular focus on the place of law in everyday life.

The series seeks to take an explicitly society-first view of socio-legal studies, with a focus on the ways that law shapes social life, and the constitutive nature of law and society. International in scope, engaging with domestic, international and global legal and regulatory frameworks, texts in the Law, Society, Policy series engage with the full range of socio-legal topics and themes.

We opened our book with contrasting perspectives on the impact of court publicity: the first, originally provided by the utilitarian philosopher Jeremy Bentham and subsequently used by judges to powerfully explain the open justice principle; the second provided by a participant in a focus group who had experienced the courts as a criminal defendant. For Bentham, publicity was the ‘soul of justice’; for the former defendant, it was a ‘life sentence’ hindering rehabilitation. The vast disjuncture between the ideal and the reality has been apparent through our research into open justice in practice. Beyond the potentially detrimental impacts on individuals within the system (which some argue is simply the price of transparency), open justice is often not delivered as the courts intend because of insufficient resourcing, piecemeal management, and disparate methods of oversight. We do not – and cannot – attempt to offer an answer to some of the legal and policy questions arising in this short book. We hope, however, that our findings – based on both literature review and empirical socio-legal research – inspire a re-positioning of definitions around open justice and justice system accountability in legal and social policy contexts.

Key findings and argument

In Chapter Two we considered some of the original rationales for open justice in lower criminal courts, arguing that the concept historically fulfilled several functions. Those functions included, but were not limited to, assisting with evidence gathering, publicly shaming and punishing offenders with the aim of both individual and general deterrence as a form of public legal education, and wider democratic accountability in the context of a lower criminal court process grounded in the involvement of local communities. (Lower) criminal courts have, therefore, historically operated with accountability (of both the individual offender and the court process) in mind, although we contend that summary justice is becoming more closed. We argued that taking a broad view of open justice allows us to increase participatory accountability. This would enhance informational transparency and ensure justice system scrutability.

Chapter Three located our discussion about open justice in lower criminal courts’ contemporary use of the Single Justice Procedure (SJP), audio-visual technology and the automatic online conviction process.

Myanmar (also known as Burma; see the discussion of terminology later in the chapter) has endured prolonged periods of military rule and hosts some of the world’s lengthiest internal conflicts. In the early 2010s, cautious hopes for democratic reform flared up on the local and international level, as the military initiated a top-down political transition process. These hopes were extinguished as the military continued to dominate the political landscape and terrorize the population, notably with its horrific violence against the Rohingya in 2017 and with a new military coup in 2021 and the subsequent violent repression of dissent. Throughout the long periods of military rule, the country has faced fierce contestation over political legitimacy and territorial control between the military and various armed and non-armed resistance groups. Burmese society, moreover, has historically been divided along the lines of ethnicity, class, age, gender, religion and rural or urban background. Diversity within the population gained political relevance when Burma was colonized by the British and during the subsequent independence struggle. Ethnic minorities, generally referred to in Myanmar as ‘ethnic nationalities’, make up over 30 per cent of the population and have borne the brunt of the military violence directed against populations in the border areas. The nominally socialist military government which took power in 1962 was confronted with a large-scale popular uprising, resulting in a military reshuffle in 1988. This era of military change-over marked the rise of Aung San Suu Kyi as leader of the political opposition; her party won the elections of 1990 but was not allowed to take power. Meanwhile, armed ethnic resistance continued in the borderlands, while a Burman-dominated ‘democracy movement’ was established, partly from exile, in the 1990s.

In 2003, the military announced its ‘Roadmap to Democracy’, which resulted in a new constitution in 2008 and elections held in 2010. These developments intensified existing debates around the desired future of the country and how this should be achieved. By the time a quasi-civilian government under President Thein Sein took power in 2011, Myanmar’s political transition had caught international attention. Aung San Suu Kyi’s release from house arrest just days after the 2010 elections and her re-entrance into national politics in 2012 increased international interest during what some call Myanmar’s ‘honeymoon period’.

This common joke refers to both political parties and civil society organizations (CSOs) in Myanmar. It demonstrates the vibrancy of associational life but also points towards the internal divisions that have arguably played into the military’s divide and rule tactics. This chapter explores what constitutes Burmese civil society over time, and what the various groups stand for. The concept of civil society is explored as it developed and became used in Myanmar after exposure to Western influences. Chapter 3 then introduces a number of fault lines in Myanmar society and analyses how they are reflected in civil society. Understanding diverse identities based on gender, age, class, education level and other characteristics is essential for the analysis of positions and contestations within civil society in the course of the political transition process. An additional factor discussed concerns the interaction between civil society actors based inside the country and those in exile. As with other factors, this ‘inside–outside’ division is not static, as activists moved in and out of the country in recent decades depending on the openness of political space over time. The way various civil society actors experienced and navigated this political space will be discussed in Chapter 4.

Tracing the ‘civil’ in civil society

As previously mentioned, civil society is a much used, but also much contested and criticized concept. On the most general level, it can help interpret how social relations and collective action take shape over time (Edwards, 2011). For practitioners and scientists, the concept often serves as a blanket term to cover various organized non-state actors and activities, leading to a possible conflation of analytical and policy goals (Lewis, 2001). The critical and systematic engagement with the theory and practice of civil society is complicated by overly simplistic expectations, based in Tocquevillian definitions and democracy promotion schemes. These concern civil society’s presumed positive role in society, its ability to criticize or check on the role of the state, and its counter-hegemonic qualities (Chambers and Kymlicka, 2002; Edwards, 2009). In contrast, Gramscian theorists are more likely to regard civil society as a sphere of contestation, exploitation and hegemony (Hedman, 2006; Glasius, 2012).

This chapter centres on the notion of ‘space’, or room to manoeuvre, for civil society under authoritarian rule. Under the State Peace and Development Council (SPDC) government, Myanmar civil society actors operated in a very restricted political space. Many of them adapted to working under the radar of the government, while others refused to make concessions and faced regular repression, imprisonment and threats to their lives. In the course of the political transition, new opportunities opened up for civil society to get involved in politics and contribute to policy development. For others, including ethnic nationalities and vocal dissidents, room to manoeuvre remained limited, or even diminished. This created tensions within civil society over the nature of this new space, and the question of the extent to which civil society in transitional Myanmar could really operate independently from the government. This chapter and the next illustrate both sides of the debate. They show how the space experienced by various actors was determined by a number of factors including individual background and strategies to mobilize support, the location and timing of activities, and the language in which they were phrased.

While the whole military-led ‘Roadmap to Democracy’ was contentious, particular contestations emerged around the 2008 constitution and the referendum held in the days after cyclone Nargis, as well as the local and international humanitarian responses to the cyclone. Heated debates arose once elections were announced for 2010. The main political opposition decided to boycott the elections due to their unfair nature and the obstructions it faced to meaningful electoral participation. Others, particularly those affiliated with the previously mentioned Third Force, saw the elections as a unique opportunity to create political platforms outside the influence of the military. This chapter discusses the ruptures that occurred within Myanmar civil society as space opened up for some but closed down for others. The following chapters focus on the way these discussions were portrayed towards outside observers, with the 2010 elections as a specific case study.

A sociology of knowledge of media and public sphere critique

The malfunctions of the contemporary media and the public sphere, and its destructive effects on democracy, social order and individual well-being, is among the most frequently discussed and controversial topic in political communication research. In this book, I am not so much interested in advancing a further diagnosis of the current malaise of the media and the public sphere but instead aim to understand how we as researchers, and in parallel also as members of a public, translate this knowledge into critique. I am taking the view of how critical knowledge about media and its effects is generated and used. How and by whom is such knowledge produced, how does it feed into public debates or trigger political mobilization, and what impact does it have on the functioning of the public sphere? In other words, what happens to the public sphere if it gains knowledge about public sphere disruptions? Thus, this book is a sociology of knowledge pertaining to contemporary media and public sphere analysis and critique. In examining the world of contemporary (digital and global) media, and the public sphere and democracy, it seeks to address the following questions:

• • What do we know about contemporary transformations of the media and the democratic public sphere?

• • How can we know?

• • Who knows? And who produces that knowledge?

• • What follows on from that knowledge? How is it received by users and critical publics, and what do they do with it?

The following pages will provide a systematic overview of our stock of knowledge about media and public sphere disruptions. I will turn to the process of knowledge production and dissemination that leads to such a diagnosis within critical media studies. Such an assessment will allow me to identify the social carriers of the discourse about public sphere dystopia: the knowledge producers and their recipients. I will then show how the producers of knowledge about public sphere disruptions are at the same time promoters of critical discourse. Their knowledge is not confined to academia but becomes common knowledge that is taken up by other social carriers and translated into forms of political mobilization. We thus observe a translation process of critical (dystopian) discourse into new utopias for society and democracy.

While the previous chapter focused on room to manoeuvre for civil society under authoritarian rule, the following chapters describe how Myanmar civil society actors framed their advocacy messages towards an international audience in their search for political, moral and financial support. In contrast to the volatile ‘under the radar’ activities described earlier, the transnational advocacy activities of the democracy movement called for a clear and simple message concerning the social and political problems in Myanmar and the question of who was responsible and how such problems could be addressed. Social movement theory holds that human rights advocacy messages are only partly determined by factual situations and feasible solutions. Other factors, such as the susceptibility of the target audience to certain messages, also play a role.

In contrast to many actors working under the radar during Myanmar’s early years of transition, as well as the more open engagement attempts of the Third Force towards the military, representatives of the democracy movement continued to openly oppose the government. The distinction between proponents and opponents of engaging the government, moreover, became more pronounced as the political transition unfolded. The occurrence of cyclone Nargis in 2008 not only led to a gradual emancipation of civil society actors based inside the country, but also resulted in the emergence of contrasting ‘frames’ about the benefits of distributing local aid. These frames became even more noticeable after elections had been announced for 2010, which further polarized both the political and the civil society landscape. Parallel to developments in the political sphere, those affiliated with the Third Force chose to call for participation in the elections, while those affiliated with the democracy movement boycotted the elections. This dichotomy was accentuated as both proponents and opponents of the elections attempted to reach out to the international community to influence foreign positions towards the Myanmar government. The contestations around the 2010 elections will be discussed in Chapter 6.

Although the elections formed the focal point of the disagreement over the government’s ‘Roadmap to Democracy’, some of the varying frames had already become visible in earlier debates. These include the question of economic sanctions, the evaluation of the 2008 constitution and the distribution of aid in the aftermath of cyclone Nargis.

Introduction

In December 2022, the China Daily newspaper ran an opinion piece titled “Will Americans Imitate China’s Approach to Africa?” The article was making reference to the US–Africa Summit organized by the US in Washington DC hosting several African state leaders. Summit diplomacy has become a staple in China–Africa relations as Beijing hosted the first Forum on China-Africa Cooperation (FOCAC) in the year 2000 and there have been eight editions of the summit since then. It is in this context that the author of this China Daily article and many others have wondered if the US was mimicking China’s foreign policy approach in Africa. To be able to understand if Beijing has been socializing the US in transforming its approach to Africa by imitating its own, we have to first understand what summit diplomacy tells us about the values and norms underpinning Beijing’s approach in Africa.

In June 2021, Uganda’s President Museveni appointed the new Party Secretary for the country’s ruling party, the National Resistance Movement (NRM), Richard Todwong. A few moments after the announcement, the party’s website shared that China congratulated the new Party Secretary for his appointment (National Resistance Movement 2021b). As it turns out, in 2019, Todwong had participated in a three-month training at Peking University sponsored by the Chinese government for elites to learn about governance from Communist Party of China (CPC) experts. In an interview with Xinhua about the training, he highlighted how “African leaders could learn governance philosophy of the CPC, as the party is committed to a people-centered philosophy of development” (Xinhua 2021a). Similarly, at the 100th anniversary of the CPC (in July 2021), Todwong filmed a video message congratulating China, thanking the CPC for its mentorship, resources, and friendship with African political parties, and stating that the NRM will continue to “walk in the footsteps of the Communist Party” to achieve development and wellbeing for the Ugandan people (National Resistance Movement 2021b).

By contrast, the news of Todwong’s accession as the head of the NRM did not make it to US news outlets despite having also trained in the US before going to China. Such variance suggests a difference in China’s relational approach that puts a premium not only on training African elites but also on setting up mechanisms to follow (celebrate, for example) the political achievements of African elites trained in China.

Introduction

As we discussed in Chapter 1, this book was prompted by the publication of the Planning White Paper in August 2020 and the ‘radical’ reform it proposed. That White Paper had forewords written by then Prime Minister Boris Johnson and then Secretary of State for Housing, Communities & Local Government Robert Jenrick. To say that the landscape has shifted somewhat since then would be an understatement. The White Paper has now largely been abandoned, with some of its contents included in a new Levelling-up and Regeneration Bill. The department of the UK government responsible for planning has been renamed as the Department for Levelling Up, Housing and Communities. At the time of writing in February 2023, the secretary of state in place at the head of that department is Michael Gove, who, precedent suggests, is unlikely to be in place when you read this, and there have been an astonishing six different planning ministers in the last 12 months. However, most significantly, the UK has had three different prime ministers during this period, with Liz Truss replacing Boris Johnson on 6 September 2022, leading to a record-breaking short period of office before being replaced by Rishi Sunak on 25 October 2022. All of this means that the proposals in the Planning White Paper are of little relevance to the future of planning in England. That does not mean, however, that this book is of no relevance; the opposite, in fact, is true, as its central ‘thesis’ that constant cycles of often ill-conceived central government reform and tinkering have failed to establish consistency and stability around planning seems more salient than ever.

The controversy generated by the Planning White Paper and the consequent loss of a by-election in Chesham and Amersham were arguably the beginning of the end for Boris Johnson’s premiership. While he was ultimately dethroned by his party due to other factors too numerous to detail here, the inability of his government to successfully introduce changes to the planning system illustrates neatly our argument that the ‘failure’ of this book’s title is not that of planning but that of the state within which planning operates, as well as the political party that has led that state for much of the last 50 years.