Open Justice and the Question of Disclosure
A fundamental principle of the common law justice system is that:
“Justice must not only be done, but must manifestly and undoubtedly be seen to be done.”
— Scott v Scott [1913] AC 417
This principle, often referred to as open justice, underpins public confidence in the courts across common-law jurisdictions, including Bermuda. Court proceedings are normally held in public, judgments are published, and the press are free to report on the administration of justice.
In cases involving potential miscarriages of justice, the importance of transparency becomes even greater.
The Trinity DNA Review
Following the Privy Council’s decision in Washington v The King (2024), which overturned a conviction due to flawed DNA evidence provided by Trinity DNA Solutions, the Director of Public Prosecutions undertook a review of cases in which Trinity evidence had been used.
The Privy Council noted that the review had begun and recorded that the process would involve independent expert consideration and engagement with affected individuals.
The stated aim of the review was to ensure that any convictions potentially affected by flawed forensic methodology could be identified and addressed. That objective, correcting possible miscarriages of justice, is one of the most serious responsibilities within any justice system.
The Transparency Question
In that context, some observers may ask a straightforward question.
- If the purpose of the review is to ensure confidence in past convictions, why does there appear to be limited transparency about how the review conclusions were reached in individual cases?
This is not necessarily to suggest that the conclusions themselves are incorrect. Prosecutorial authorities often rely on legal privilege, law-enforcement exemptions, and privacy protections when deciding whether to disclose internal materials. However, where a review has been conducted specifically to identify potential miscarriages of justice, the absence of explanation can itself raise questions.
Those questions may arise particularly where:
- the review was prompted by the highest appellate court identifying flawed scientific evidence
- hundreds of cases were examined
- and individuals affected by the review seek to understand how conclusions about their own convictions were reached.
The Cost and Complexity of Obtaining Disclosure
Another issue sometimes raised in such situations is the practical difficulty of obtaining information about the review. Where disclosure is not provided voluntarily, the only route available to affected individuals may be judicial review proceedings in the Supreme Court.
Such proceedings can involve:
- legal representation
- court filings
- evidential hearings
- potentially significant costs.
For prisoners or individuals seeking to challenge convictions, this process may be complex, resource-intensive and take time.
As a result, some may ask whether greater transparency at an earlier stage might reduce the need for litigation in order simply to understand the reasoning behind review decisions.
Open Justice and Public Confidence
None of this means that internal prosecutorial deliberations must automatically be made public. The law recognises legitimate reasons for withholding certain material, including:
- legal professional privilege
- protection of third-party personal information
- safeguarding ongoing proceedings.
However, the broader principle of open justice remains central to the legitimacy of criminal justice systems. Where reviews are undertaken to address possible miscarriages of justice, the visibility of the process can sometimes be as important as the outcome itself.
In that sense, the question some observers may pose is not necessarily about the correctness of individual decisions, but about the degree to which the reasoning behind those decisions is visible and understandable.
A Question for the Courts
The current judicial review proceedings concerning the Trinity DNA review may ultimately clarify these issues. The Supreme Court may be asked to consider questions such as:
- whether affected individuals should receive greater explanation of review outcomes
- whether certain review materials should be disclosed
- and how transparency should operate when large-scale conviction reviews are conducted outside a formal statutory framework.
Whatever the outcome, the proceedings may provide important guidance on how systemic forensic reviews should be conducted in a manner that maintains both fairness and public confidence.
Reflection
At its core, the issue touches upon the enduring principle articulated more than a century ago:
Justice must not only be done, but must manifestly and undoubtedly be seen to be done.
When a justice system confronts the possibility that flawed forensic science may have affected past convictions, the manner in which the review is conducted, and the degree to which its reasoning can be understood, inevitably becomes part of the public conversation about confidence in that system.