In April 2012, the UK Court of Appeal (for England and Wales) ruled that the constitutional open justice principle entitles members of the public to obtain copies of documents submitted in court cases in Guardian News and Media Ltd, R (on the application of) v City of Westminster Magistrates' Court [2012] EWCA Civ 420.
This is not the position taken in Scotland, where "only what is said in court is available to the public the written statements are not". I believe that the principle is universal and should apply equally to Scottish cases.
The High Court of Justiciary recently considered the issue of public access to court documents when the BBC asked to see photographs that were entered as Crown productions in the case HMA v Hainey [2010] HCJDV 10. Lord Woolman ruled that the photographs should be disclosed as they were “significant adminicles of evidence at the trial” that had been “effectively published in open court”.
I believe that petitioning courts for disclosure of documents is overly cumbersome, costly and therefore very off-putting to potential applicants. There should be an easier way to access documents, whereby anything produced in open court must be disclosed and parties must specifically apply at the time of producing any sensitive information for that information to be withheld from automatic disclosure.
The right of access should extend to documents produced in both criminal and civil matters. Members of the public are entitled to attend court for both types of hearing. However, it can be difficult - and at times impossible - for interested members of the public to attend court to follow the progress of a case, given their work, education and family commitments.
In the United States, there is a system called Public Access to Court Electronic Records (PACER, http://www.pacer.gov/) which allows anyone to access case information from the federal courts including transcripts, audio files of hearings, written submissions and rulings, making the system much more open.