The BAILII lecture: No Judgment, No Justice
21 November 2012
For justice to be seen to be done, judgments given in open court must be accessible in two senses. They must be clearly written so that a reasonably well informed member of the public can understand what is being decided. But they must also be available to the public, and in this sense their accessibility depends on their being reported.
Lord Neuberger, President of the Supreme Court, so stated in the first BAILII annual lecture, hosted by Freshfields Bruckhaus Deringer LLP at their premises in Fleet Street last night. The full speech can be read here.
Lord Neuberger said that by providing free access to primary legal materials, including statutes as well as judgments, BAILII (the British and Irish Legal Information Institute) was providing a unique service, whose importance was all the greater given the increasing number of self-represented litigants appearing in the courts.
Judges were required both to exercise judgement, and to give judgments. Without reasons, there could be no judgment. For justice to be seen to be done, two fundamental requirements had to be satisfied. First, judges should give publicly available reasons for their judgments. Second, those judgments must be reliably disseminated and reported.
In relation to the first requirement, it was important to recognise that the public were the real audience: judgments had to speak to the public, as well as to the lawyers and litigants. They should therefore be sufficiently well written to enable reasonably intelligent non-lawyers to understand what the case was about.
Open justice underpinned the rule of law. There was a particular reason for this: the right to a fair trial required a reasoned judgment to be given. But there was a more general reason too, which was that a clearly reasoned judgment enabled the public to see how justice was being dispensed.
Advice to judges
Lord Neuberger had a number of suggestions for his judicial brethren. The first was that, when giving judgment, they should give a short summary at the start, like a headnote. By no means are all judgments available with a headnote in a law report, and even if they were, litigants might not have access to them. The Incorporated Council of Law Reporting’s database (ICLR Online) had made significant steps in that direction (by providing free case summaries), but in the absence of a judgment reported by ICLR (or some other law reporting body) a litigant could be at a disadvantage.
Judges could also give better guidance to the structure of their judgments, as some already did, with tables of contents, a “roadmap” to the contents, and headings. This was not only good discipline but also what legal readers wanted, and, a fortiori, non-lawyers.
His Lordship also urged a certain amount of judicial restraint. Where the law was complex and depended on precedent, it should be explained in a consistent way and coherently developed. Judges should take a more rigorous approach to the length of their judgments, removing anything otiose and avoiding excessive displays of erudition.
In appellate courts, judges should avoid giving unnecessary concurring judgments, which risked introducing confusion and giving rise to debate, as well as adding to the amount that needed to be read; and they should only give a dissenting judgment where they not only did not agree with the majority but felt it important to explain why. He was not suggesting a straitjacket of compulsory unanimity (such as that required in the Court of Justice of the European Union), merely a bit of judicial self restraint.
Second fundamental requirement
The second fundamental requirement of justice being seen to be done was law reporting. Lord Neuberger identified two types of reporting.
First, what he called “judgment dissemination”, in the form of easy and full access to all judgments given in open court. That is what BAILII provides.
Second, what he called “judgment enhancement”, in the form of scholarly law reporting as done by the Incorporated Council of Law Reporting for England and Wales (ICLR) in The Law Reports since the 1860s, and the Weekly Law Reports since the 1950s, and by LexisNexis in the All England Law Reports since the 1930s.
Both forms of reporting were of fundamental importance. Both supported the administration of justice, and made the law available to students, practitioners and judges.
Scholarly law reporting, or judgment enhancement, was of particular importance in developing a corpus of law, particularly the common law, which was judge-made law, based on precedent, refined over time. Such law changed as society changed. The process of development and refinement could not happen without scholarly law reporting. That had been the problem with the unreliable and inaccurate Nominate reports (the various individually published series which preceded the establishment of ICLR in 1865): how could lawyers and judges develop the law if judgments were not properly reported?
The late Lord Bingham had praised the “scholarship and amazingly high standards of accuracy” of The Law Reports. Reliable accuracy was important, but so was the selection of cases to be reported, particularly as the number of judgments increased. Judgments which developed the law and set new precedents needed to be identified.
In the case of The Law Reports, as well as the headnotes, lists of cases cited and other enhancements, there was also a report of the argument, which enabled readers to see what points had been made or conceded, and which had not been made, to the court giving the reported judgment.
Newspapers no longer reported legal proceedings in detail, and (with a few exceptions) the days of the dedicated legal correspondent were over. Blogging and tweeting, although they have come into their own in recent years, are not the same.
Hence the importance of judgment dissemination. The extent and the speed of the revolution achieved by BAILII is astonishing. It was now an indispensable and comprehensive source of information. There was no better tribute than the fact that, within a couple of years of its establishment, lawyers were taking it for granted. Its remarkably well organised website made finding judgments easy.
Inevitably, the cost of legal advice had increased, now that every judgment was available at the touch of a button, because of the need for lawyers to trawl through and check them all; and the size of court bundles had correspondingly increased. Lord Neuberger urged the judiciary to take a stronger line on the excessive citation of authorities.
No threat from BAILII
But his Lordship disagreed with those who saw the free availability of judgments on BAILII as a threat to traditional law reporting. The two different types of law reporting complemented each other, as is demonstrated by the recent partnership of BAILII and ICLR. The link from BAILII judgments to an ICLR summary was a very beneficial feature.
BAILII makes judgments accessible and available. Scholarly law reporting is more directed to the expert judicious selection and summarising of judgments for a more specialist readership, as speedily and accessibly as was consistent with those aims. There was no more than a theoretical risk that BAILII would undermine the price paid for scholarly law reports, and one should ensure that they could continue to exist and complement each other. But both played an essential role, and should be supported.
Introducing the lecture to an auditorium packed with senior judicial figures, leading practitioners, academics and some very grateful law reporters, Sir Stanley Burnton, chairman of the trustees of BAILII, said that its online platform provided the practical implementation of the idea, in which he believed passionately, that all citizens had the fundamental right to free access to all primary legal materials. He invited anyone who shared that belief to support BAILII, which is funded entirely by sponsorship and charitable donations.
This guest post is by Paul Magrath, barrister and Head of Product Development and Online Content, and Daniel Hoadley, Barrister (Law Reporter, ICLR) @danhlawreporter
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I have recently retired from local government where I was a solicitor dealing with environmental matters. From a practical aspect, one element concerned me. I noticed an tendancy for sections of cases to be quoted by non-lawyers who would cite them as authority for their particular proposition. Nothing wrong with that except on what seemed to be an increasing number of occasions I had to point out to the inspector that the quote was from the summary of one of the advocates, which the judge later expressly disagreed with.
I am not sure how best this mis-understanding of the structure of a judgment could be tackled but with the increase in litigants-in-person, courts and their opponents will need to be aware. Regretably on occasions, my opponents would only have two copies of the full judgment (one for them and one for the inspector) and would not have provided any details before the inquiry began.
I was not a practitioner in the courts in recent years (save for highway stopping-ups) so I don’t know whether this is a problem elsewhere in the system.
The role of dissenting judgment was the subject of Lord Kerr’s recent Birkenhead Lecture at Gray’s Inn (“Dissenting Judgments – self indulgence or self sacrifice?”, available to download on the Supreme Court website) in which he concluded that they were “a gem to be treasured”, adding that “The great dissents in British legal history speak loudly of the independence of our judiciary and, in consequence, inspire the confidence that the public place in the administration of justice in this country. The opportunity to dissent has never been more important than it is today.”
At para 28 of his lecture, Lord Neuberger says that while he is “emphatically not suggesting banning dissenting judgments, it may be that we could have fewer of them, and they could be shorter.” Lord Neuberger doesn’t refer to Lord Kerr’s lecture and his arguments for dissenting judgments and when they are justified. It would have been interesting to hear the response of the new President of the Supreme Court on the views of one of his fellow justices on the topic.