New judgment repository a triumph for open justice - but more to do
Alex Kelly was just 15 years old when he was found hanging in his cell at Cookham Wood Young Offenders Institution on 24th January 2012.
In his short childhood he suffered serious sexual abuse and at the time of his arrest he was living in care. His custodial sentence was passed in the absence of a forensic mental health assessment and without recommendations relating to his vulnerabilities being put to the court. Alex’s death, and those of other children like him, prompted successive reviews of the way in which the courts deal with children in the criminal justice system, and the introduction of new sentencing guidelines to support judges. However, researchers and charities who are seeking to understand whether and how these guidelines are being applied are hampered by the fact that judgements and sentencing decisions from the youth court are mostly delivered orally and are not published. Judgments involving children in the Crown Court are rarely legally significant and therefore often unreported. While high level data is available, the material needed to assess the quality of justice being delivered to the thousands of children sentenced by the courts each year, simply does not exist.
The situation regarding access to judgments and decisions in cases involving children is mirrored across the wider justice system. Successive reports have raised concerns about the lack of publicly available information about the decisions that are made in the magistrates and county courts. This lack of transparency is a function of the opaque and ad-hoc arrangements that have developed over time to support the dissemination of information from the courts to the public. Historic under-investment in a publicly funded system for storing judgments and decisions and making them available for publication has led to the development of inefficient, manual workarounds. BAILII, the leading provider of free access to case law in the UK, has been forced to rely on direct feeds of information from individual judges and courts. In the absence of a complete record of decisions, with agreed criteria for determining publication, arrangements for providing free public access have necessarily privileged publishing only those judgments that are legally significant or deemed by judges to be of particular interest. As a consequence, a report published by the European Commission in 2018 placed the UK bottom of a table ranking EU countries in terms of public access to judgments online.
In this context, the announcement last week by the Lord Chancellor, of the creation of a new repository and publication service for judgments, hosted by The National Archives, is of vital significance. In 2019, Justice Lab’s Digital Justice report called on the government to review and reform existing mechanisms for making judgments available to the public- this decision is the first step in that process. The truly radical potential of the transfer of responsibility for the retention and publication of judgments to The National Archives lies in the opportunity that it provides to create an agreed, complete record of judgments and decisions made in courts and tribunals across England and Wales. In order to achieve this, the Ministry of Justice will have to now take steps to review and reform its existing transcription contracts. Providing it can do this, The National Archives has the expertise, infrastructure and resources to put in place solutions that will fix the underlying information flows between courts and publishers. The repository could also be expanded to support the retention of sentencing remarks, as recommended by the Lammy Report of 2017– something which is not feasible under current arrangements.
A complete agreed record of judgments, held securely by The National Archives will also address growing concerns raised by stakeholders about disparities in coverage between free to access publishers and subscription only services. An article published by Hoadley in 2018, analysing the coverage provided by different publishers stated: “For anyone out there under the impression that there is any semblance of symmetry between the quantity of judgments available in the open and those accessible behind a paywall, the numbers point emphatically the other way.” This disparity matters at a fundamental level because it means that those who are able to pay to access subscription-only services are able to access more complete and accurate information about the law and how it operates- threatening key rule of law principles and exacerbating inequalities of arms. Disparities in coverage also have a chilling effect on innovation- in researching the recommendations of the Digital Justice report, we were told that the large fees incurred in accessing the more comprehensive data held by private publishers act as a barrier to new entrants or those who want to develop products aimed at addressing low-income access to justice challenges.
In order to harness the full range of potential benefits conferred by a complete record of judgments, it is vital that public confidence is maintained in the arrangements for storing and accessing this information. A complete record of the judgments and decisions made in courts across England and Wales will by its nature contain information of deep personal significance to those involved in the justice system- including victims, witnesses and their families. The risks of sharing this data in aggregate form are currently under-explored. A recent paper published by Adams et al. has outlined the threats created by the online publication of judgments from the Employment Tribunal, including blacklisting and evasion of legal obligations by employers. In the USA, legal publisher Lexis Nexis has attracted criticism for selling information on individuals, aggregated from public sources and held in its databases to the US Immigration and Customs Enforcement agency. The public acceptability of commercial re-use of data generated by the justice system is poorly understood, as is the impact of new developments in litigation analytics on equal access to the justice system. As such, it is imperative that the rules governing bulk access to the new repository are developed via transparent and accountable processes. Formalising the HMCTS shadow Senior Data Governance Panel, appointing external experts, and ensuring that the panel’s decision-making is transparent, is now urgent. There is an immediate need for both independent research to evaluate identified risks and sustained public engagement, to understand and develop a public mandate for this work.
Last week’s decision by the Lord Chancellor to create a new repository for the publication of judgments hosted by The National Archives provides a solid foundation for open and transparent justice, but there is more to be done. The Government must now ensure that the transfer leads to comprehensive coverage of judgments and decisions, available in one place for the purposes of research. It must reduce the costs of accessing transcripts for those that need them, and reform existing transcription contracts to ensure that copies of judgments delivered orally are sent to the new repository. It must also take steps towards the publication of sentencing remarks to support a holistic understanding of the decisions made by the courts. Only by taking these steps will we secure a future where the lessons from cases such as Alex’s can be learned (and be seen to be learned). There is much more to be done, but last week’s announcement is a crucial step towards a more transparent, equitable and evidence-based justice system.