‘Open Justice’ – A reminder to lawyers
The recent case of R v Peppiat [2025] EWCA Crim 110 saw the Court of Appeal emphasise the importance of ‘open justice’ and transparency.
Briefly, Peppiat was convicted of murder on a majority verdict. A renewed application for leave to appeal was made but dismissed.
The Court of Appeal, however, noticed significant exchanges between counsel and the trial judge via email throughout the course of the trial.
Such private and ‘behind the scenes’ communications concerned their Lordships.
Recognising that we live in a digital world and whilst convenient, all such exchanges must be transparent and should be uploaded to the DCS. Significant discussions should also be summarised in open court.
Their Lordships observed that any email exchange sent directly to a judge should be treated as part of the court record. Uploading all such exchanges, especially during a criminal trial, promotes transparency and fairness.
Their Lordships confirmed that ‘open justice’ is best served by ensuring significant out-of-court communications are captured on DCS and summarised in open court.
Practical Guidance for Advocates
- Avoid Private Communications
Do not email or message the judge directly without copying all parties - Upload to Digital Case System (DCS)
Treat all written communications—including emails—as part of the court record. Upload promptly to DCS - Summarise in Open Court
Where significant exchanges occur outside the courtroom, summarise them in open court for transparency - Copy All Parties
Any correspondence with the court must be copied to all parties, however trivial, unless purely routine and administrative - Err on the Side of Disclosure
Do not attempt to assess whether an exchange is “significant.” The safest approach is to disclose all communications
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