The principle of open justice has been robustly developed in English law since the mid-17th century, but the courts service in England and Wales has yet to fully utilise online technology for the dissemination of courts information and legal knowledge.
The UK Supreme Court, which opened its doors to the public in 2009, leads the way in sharing court proceedings via the internet and television, but lower courts lag behind. Publication of legal information has grown up in a piecemeal fashion in the digital era – part privatized, with few central guidelines.
Full access to the law requires the time to attend court in person and ready cash to obtain court transcripts and use commercial information services. Lawyers and academics are likely to have access to legal databases through their employers and institutions, but the general public is unlikely to be able to afford these.
The court doors may be (mainly) open to the media and public, but the law is not freely accessible and certainly not comprehensible to the public at large, at a time when cuts to legal aid could lead to a huge increase in the number of litigants in person.
This is the backdrop to the Centre for Law, Justice and Journalism’s “Open Justice in the Digital Era” project, born out of numerous conversations with lawyers, journalists, academics, computer programmers and bloggers about accessing the courts in the 21st century.
For many of these individuals, “open justice” is not their primary research or legal specialism but absolutely intrinsic to their daily work and the wider public interest. Their concerns are extensive and diverse: the recommendations of the government’s Justice & Security green paper which would see more cases behind closed doors, the decline in local and national court reporting as a result of cuts in journalism, the courts’ barriers to entry due to ill-informed staff, and the difficulties in obtaining free legal information.
In our forthcoming publication, “Justice Wide Open”, City Law School’s librarian and founder of the online resource LawBore, Emily Allbon, sets out some of the context for the flow of legal knowledge and the domination of the paid-for legal information providers. While acknowledging the “ignorance of the law is no excuse” principle, she observes that our access to primary legal materials is “fairly patchy” for those outside the commercial paywall. Further, she asks, “is it even enough to simply provide access to the law; how can it be made understandable too?”
Crucially, the law that is free online may not be reliable. Adam Wagner, barrister and editor of the UK Human Rights Blog, complains that “it is unacceptable that a member of the public should be subject to a law which they cannot find” and argues “public authorities should be restricted from relying on a law until it is reasonably accessible online”. It is “woeful”, he says, that statute on the government’s Legislation.gov.uk is only guaranteed to be up to date until 2002.
Our project launch event in February 2012 discussed how judicial information and courts data could be made more easily accessible to journalists, lawyers and researchers and the general public, and considered the legal and ethical implications. While there seemed to be consensus among conference participants that we should be taking an increasingly digital approach in communicating the law, proposals do need to be considered carefully.
William Perrin, founder of the Talk About Local social enterprise, has initiated discussion with his open justice charter, for example. It calls for digital access to basic information such as “name, address and specific charges in all cases available from the time the case is scheduled”. This is already public information but only widely reported at the media’s discretion. Perrin believes newspapers “effectively create a primitive unregulated database online” and that “daily court results and timetables [should be] posted to a courts website, preferably with an RSS feed”.
In response to Perrin’s suggestions, legal bloggers have raised questions about the repercussions for data protection and the rehabilitation of offenders. People who have been personally involved in cases might have a view too. With increased availability to courts data, we are likely to stumble across situations like the one recently reported by a blogger publishing criminal case information in Texas: an individual asked for his name to be removed because it shows up in Google and could affect his search for a job. This is the type of dilemma an increasingly digitised approach will throw up, and we should be addressing the issues now. The publication of online court records needs serious attention; it is already happening in part and the Ministry of Justice needs to tackle data publication consistently and in a way that best serves the public interest.
Another topic provoking debate is the internet and television broadcast of court proceedings: in April, STV filmed the sentencing remarks of a criminal case in the High Court in Edinburgh for the first time and while a Norwegian court is broadcasting the trial of Anders Breivik for the murder of 77 people, authorities held back from showing his testimony. The Queen’s Speech, on 9 May 2012, is expected to include plans to allow cameras in court in England and Wales, but limited to summing up and sentencing in selected courts.
Once again, the Supreme Court leads the way here. Although archive footage is not available online, it live-streams its hearings and judgments via Sky and the vast majority of appeal hearings have been made available for broadcast since its creation three years ago. However, broadcasting UKSC cases presents less dilemma than for other courts: as the court’s head of communications Ben Wilson explained in this piece for PR Week, as the highest appeal court in the land, it has no juries, witnesses or cross-examinations, “so many of the concerns that are rightly being discussed about filming lower courts do not apply”.
Tweeting from court raises important questions, too: the ethical issues of live-reporting and the the risk of contempt of court, for example. In another of our Justice Wide Open papers, Professor Ian Cram considers the threat to fair trials posed by tools such as Google, Twitter and Facebook.
These are important subjects to be teased out and properly considered by legal authorities and government, in consultation with the public, researchers and the media. In that sense, our project is a call for debate as well as action.
However, if it is established that certain information should be digitised, my fear is that the courts will turn to private companies and expensive contracts, when in fact it would be better to support non-profit initiatives like BAILII to improve and develop its services and also release open data at source, which could be used by civic organisations such as mySociety. We can learn from past experiences: a plan for a database accessible to authorised media organisations, which would track reporting restrictions, was abandoned because of reportedly “eye-watering” proposed costs to the media.
In her 2010 book The Silent State, the investigative journalist Heather Brooke describes the frustrating situation for transcription provision. Since members of the public are not allowed to tape record open court proceedings, they rely on private companies, which can cost around £150-250 per hour of typing time. “Before the transcription process begins, the courts make you sign a form stating that you will pay whatever amount the company decides”, she explains. Contrast this with the US Supreme Court, which provides transcripts of oral arguments, posted on its website the same day an argument is heard by the Court.
Despite English law’s elusiveness and imprisonment behind the paywall, there are some encouraging signs coming from both the judiciary and government. Following the “super-injunction” furore in 2010-11, the Master of the Rolls recommended better data collection around anonymised injunctions to prevent the kind of situation where no public record existed at all and the Ministry of Justice’s first report (PDF) provides some information on the number and outcome of recent privacy actions. A recent Court of Appeal ruling established the right of the media to access court documents in criminal proceedings for the first time. But digital access could be better. It’s time for open justice to be seen to be done online.
Judith Townend is a PhD researcher based at City University London’s Centre for Law, Justice and Journalism. The forthcoming “Justice Wide Open” working papers will be available online. Suggestions and comments are welcomed, which will feed into the CLJJ’s ongoing research and work in this area and future recommendations to relevant bodies.