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1 Introduction
Publicity may be ‘the very soul of justice’ (Bentham, 1843a, p. 316) but would Jeremy Bentham recognise court publicity today? Bentham's much-cited nineteenth-century words have become synonymous with open justice, fundamental to courts and the judiciary laying open their doors, enabling the rule of law to be not only transparent and accessible, but open to external scrutiny. In this paper, I respond to Bentham's call for the utility of publicity in the courts by examining the various methods of publicity that have, over time, provided the public with an understanding of the workings of the courts and the judiciary. Bentham's idea of open justice has been described as a ‘comprehensive, relentless, and unavoidable public oversight’ (Postema, 2014, p. 43, emphasis in original) achieved through as many avenues of publicity as possible. This, he argued, raised the likelihood that all parties in the court process would be subject to the judgment of the public through the publicity process. Resnik (2013) points out that thinking about courts as an isolated institution is highly problematic, because the mandate that frames the work of the courts also applies to the institutions that facilitate their discursive exchanges with the public and, in so doing, transfers authority to the public. For Bentham, the primary institution tasked with this role was the news media – an institution that continues to report on the workings of the courts but that has undergone radical change since the press of Bentham's time.
I propose that, since Bentham's nineteenth-century writing, the courts have experienced three distinct but interrelated phases of publicity. The first phase is the news media's coverage of courts, beginning with newspaper reporting and developing with broadcast coverage as television became a dominant news medium. The second phase is the move by courts to appoint specialised communication and media staff (called in this paper Courts Information Officers or CIOs), employed as an interface and liaison role between the news media and the courts, including the judiciary. The third phase is the development of the independent means of publicity made available to courts by the Internet, most recently through social media, which adds an additional layer of publicity to the two levels already in place. These three phases...