open justice


How a defendant accused of serious crimes is treated at court reflects the basic moral principles of a society. There are two important aspects of the trial of Josef Fritzl in Austria – its transparency and its fairness. Both of these principles are tested to the limit.

The reporters in the Fritzl trial can only stay for part of the proceedings. The court provides edited extracts from the case at the end of each day. As a result, the public cannot find out exactly what happened in that dark dungeon, except as disclosed by the court. There appear to be two reasons for restricting the journalistic reporting from the court. Firstly, his grandchildren have to be protected from public intrusion. Secondly, the court did not want the trial to turn into an exercise in voyeurism. Whilst these concerns are understandable, there are other solutions which do less damage to justice. The children involved have already been given new identities. It is not the trial alone which brought them publicity. The fear about voyeurism is misplaced – the issues raised by the case are of wider public concern both nationally and internationally. The press reporting is not so much salacious as horrified.

The story of incestuous family incarceration is so shocking that any civilised society needs to ensure that it cannot happen again. The trial is of only one man, but the public will be concerned about the role that the authorities may have played. The perception is that Austrian society still has too many institutions that cannot be questioned. What were social services doing? Surely it was implausible that so many babies could appear from a daughter who has run away? Maybe the authorities do have something to hide. The best way of counteracting this perception is to bring all the facts into the open. Furthermore, the public needs to understand how a determined and devious character like this can develop. It is essential to get the full story from the protagonists – the defendant and the victim (“victim” rather than “alleged victim” because Fritzl has pleaded guilty to most counts). There is no substitute for their own words.

Fritzl is termed the “Incest Monster” by the Austrian press. Whether this description prejudices the outcome is unlikely since the judge will have seen the material beforehand in a less emotional setting. It is perhaps easier for a professional judge to deal with this media claims than it is for lay members of a jury. Meanwhile, throughout this process, the defence attorney has complained that he has been vilified for representing Fritzl and threats have been made to his life. His public appeal to treat Fritzl as a man and not as a monster has fallen on deaf ears. Fritzl is a man who acted as a conventional father for his upstairs family whilst treating his dungeon family despicably. He has not tried to evade conviction by claiming mental illness. The hardest thing to accept is that Fritzl is a man not a monster, albeit a man of moral contradictions.

Proceedings in family courts are not open to the public. Most people would agree that any children involved should be protected from unwarranted publicity. Yet there is a problem if the decisions made by judges never reach the public domain. Judges need to be accountable for their decisions, particularly as the lives of children and their parents or carers may be changed forever. The public needs to have confidence in the way the family courts operate. A major breakthrough was announced recently when the Justice Minister, Jack Straw, confirmed that the media will be allowed to attend and report on family proceedings. This mirrors what happens already in the youth courts which deal with criminal offences. There remains considerable judicial discretion regarding the implementation of this arrangement which gives rise to uncertainty by those affected.

The new approach allows the courts to explain and publicise their decisions, but the reporting must be in such a way that the children involved are not identified. There is some doubt as to whether this new formulation is actually an improvement. With one breath the Minister said that more information would be available from the courts. With the next breath, he said that the landmark Court of Appeal case Clayton v Clayton was to be overridden by new legislation. This is important for it goes to the heart of what we mean by open justice.

The Clayton case enabled parents to make the proceedings public after the case is over. This is not a tricky situation where one side is using the press to influence the decision maker. The publicity makes no difference to the outcome of the case. What it can do, however, is draw attention, possibly adversely, to the judicial process and the judges themselves. This is clearly over-protective. If the judges are confident that they have made the right decision they should not have to fear public scrutiny.

It is rather unusual for a Court of Appeal judgement to be reversed by new legislation. The argument given is that the “welfare jurisdiction” of the court continues after the case is concluded. This is a dubious basis upon which to impose restrictions on freedom of speech. The vast majority of concluded cases never return to court, so the claim of ownership is excessive. It is not as if the children are wards of court. They are the responsibility of their parents or carers, not of the courts.

There is a prohibition on releasing any information which may identify a child subject to proceedings. This is quite a severe restriction if it is to be interpreted strictly. Nowadays it is possible to track down the names and details of most people and their children. The internet is a rich source of information: social networking, person search, company, school, genealogy, local news etc. Hardly anybody is anonymous anymore, least of all communication-hooked teenagers. Add to that the ability to contact “friends” and neighbours and names will be revealed.

There is another way of protecting identity without damaging transparency. Rather than trying to limit the information pipe at source, unblock it and let it flow. The media would actually only be interested in the celebrities or the rare “human interest” story. Complaints and grievances from disgruntled court users hardly ever get aired in the media. If the media go too far beyond the public interest, then they will have to face actions for breach of privacy.