Open online justice – what do you think?
22 March 2011
As the Cearta.ie blog reminds us this morning, the late Lord Bingham saw accessibility, intelligibility and predictability as central requirements for the effective rule of law. It is also central to the human right to a fair trial. On that theme, Lord Neuberger, the head of the court of appeal, gave a speech last week which sought to push that agenda forward in the internet age.
But what comes next? In order to push forward the open justice agenda, ideas will have to be practically worked through, and funded. Please use the comments section of this post to let us know what you think, what you make of the ideas in Neuberger’s speech and whether you have any ones of your own.
A good starting point for this conversation is the legal bloggers, who generally speaking seek to bring the public closer to the legal system through modern technology, and have been predictably enthusiastic about Neuberger’s speech: see Meeja Law, UKSC Blog, Halsbury’s Law Exchange, Inforrm, ObiterJ, Charon QC and the UCL Constitutional Unit which called my own response “almost gushing“.
Neuberger’s proposals were, in summary (references to paragraph numbers in the speech):
1. Judgment-writing lessons for judges along the line of advocacy training for barristers to make them “clear and easily interpretable by lawyers. And also to non-lawyers” (27)
2. Tweeting in court to “inform and engage interested members of the public”, so long as it does not interfere with the hearing (36)
3. Televising Supreme Court hearings via the internet, perhaps using the iPlayer or a dedicated channel (34). I have been proposing this for a while. The Supreme Court have said it “is extremely resource-intensive for us to convert our footage to domestic level DVDs or other output formats“. Those with technical know-h0w: would it? Are there any media organisations who would be willing to cover the start-up costs? (34)
4. Short judgment summaries should be produced along the lines of the excellent Supreme Court press summaries. This would clearly cost money. I do not know how the system works in the Supreme Court; I have always assumed that the judicial assistants take on this role. Other courts, such as the court of appeal, have judicial assistants but they also produce a lot more judgments. So this would probably need some extra investment. It would be worth it, however, especially given Lord Neuberger’s (as well as many legal bloggers’) comments on inaccurate legal reporting, which would hopefully be prevented at source by the production of accessible, plain-language judgment summaries. (42)
5. Foster the developing community of legal bloggers of legal bloggers and encourage public legal education. The legal blogging community is developing quickly at the moment, and hopefully this will be clear by the next #lawblogs event on 19 May 2011 at the Law Society (ticket info coming soon). One important role which the legal bloggers play is challenging what they see as inaccurate legal reporting (42). Could they be doing more?
Another area which I think is important is the availability of “raw law”, that is, legislation, online to the public. At present there is no reliable way for a member of the public to find an accurate and up to date account of the law of the land. The online legislation website run by the government is only occasionally updated, so the only way of reliably knowing what law is currently enacted is by way of expensive (thousands of pounds per year) services such as Westlaw and LexisNexis. This is a poor state of affairs. Thanks to the heroic efforts of BAILII, the same cannot be said about case law but there is still much that could be done in this regard (see this post).
As Neuberger’s speech suggests, it is not the judges’ responsibility to act as an “idiot’s guide” to the justice system (that is the lawyers’ job), but they must “do everything reasonably practical to enable the public to have access so as to see what is going on in court, provided that it does not interfere with the trial process“. And, as he argues:
Public scrutiny of the courts is an essential means by which we ensure that judges do justice according to law, and thereby secure public confidence in the courts and the law.
A laudable aim. What comes next? Follow the links to the bloggers above and my previous posts below. Then use the comments section, and we can think about how to turn the ideas into an online foundation for the rule of law.
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Thank you for raising this issue here, Adam.
Lucy:
This shouldn’t be an impossible dream! Does anyone know any more about this, and why it hasn’t been challenged to date?
I think this is an “impossible dream” because the Crown can’t simply co-opt ownership of the words spoken by advocates on behalf of their clients. They can certainly make the courts open to the public, but skele, oral submissions, witness statements will continue to be owned by the people who make them namely experts, advocates and ultimately the clients they represent.
Many thanks for linking to my HLE piece. I won’t repeat it at any length save to say that there is a limit to how much can and should be made “understandable” to the general public. That’s why we have professional advisers. It is another reason why cuts to legal aid should be of concern.
On the other hand, I certainly support any form of televising proceedings – that follows obviously from the long established rule about the courts being open to the public.
Reviewing the CPRs may have two windows a year, but what happens if the Rules Committee fails to respond. I recently came across a case (again litigant in person) where the judge’s interpretation of r 13.4 was that in the case of two defendants – company and individual, the individual’s right to have the case transferred to his home court was ignored. Another example is that cpr 19.8 needs reviewing – the latter completely being ignored when brought to the attention of the Rules committee. Maybe they’ll take note if the Court of Appeal can see sense but the approach of the Court of Appeal whereby they ‘wash their hands off case management decision appeals’ citing the lower court has wide discretion to make the decision it did – does nothing to support the justice of correcting unlawful and unjust management decisions. The power of ‘wide discretion’ is great if wielded wizely and justly, but the other extreme, as too often happens, is just the opposite of what the judicial system is there to support and enforce.
I think what you mean when you say “fails to respond” is – “fails to respond quickly enough” and even then it is something that is arguable. More importantly, implementing a change in the rules is no easy business – it often includes time for consultation and a response to the consultation before the rule committee can even begin to get a clear idea about how the rules can be changed to minimise more litigation.
In relation to your specific point on CPR r.13.4, it is difficult to determine whether the judge acted properly in the absence of any of the papers or context. In relation to CPR r.19.8 – you fail to even mention why the rule needs reform. In practice the CPRC is relatively lightfooted when real problems are identified by judges or practitioners in the rules. Moreover, there is a lay representative on the CPRC who is there to represent the interests of the lay person – in fact you could write the committee directly and make these points yourself. The existence of problems (apparent or real) does not in itself mean that the rules or the committee are fatally flawed.
The Master of the Rolls speech was excellent, no doubt about it, but I can’t help but get the feeling that the bloggers are parsing his comments to suit their specific goals.
If one were to read suggestion (1) above on judgment writing. You might get the impression that the MR was dissatisfied with the judgment quality he was generally seeing when that was clearly not the point he was making. Paragraphs 24-26 are clearly about the value of appellate courts speaking with a single and unequivocal voice – remember here his audience is the judiciary – he was delicately requesting his peers to show restraint especially in the juicy cases. The conclusion in paragraph 27 does suggest that the Judicial College may have a role to play in assisting judges in sharing best practice but this is a long way from “Judgment writing lessons”.
My views on 2 and 3 are that the courts should tread carefully here. I know and fully understand that we are living in an “instantaneous world” but the courts should also be aware of the first rule of the internet (i.e. nothing on the internet is private). Something tweeted cannot be taken back, a mistake broadcast on an internet stream cannot later be corrected. Goggle’s algorithms are everywhere collating and arranging and distributing all information posted. Moreover, there is the philosophical question of whether important societal events like a murder or rape trial can be tastefully condensed into 140 characters, and whether it is in society’s best interest for this to happen.
Short judgment summaries are something that I have been praying for since law school. The problem is the prohibitive cost means that only the private companies (Westlaw and LexisNexis) could even possibly consider doing this and then the charges would be ridiculous. Considering the cuts already in play in respect of court buildings, legal aid and (dare I say it) Judicial pensions – its hard to believe that more money will be found to have a cadre of lawyers able to write summaries for all the cases heard even in just the high court and court of appeal.
On legal blogging, I’m not sure what “fostering” the legal bloggers actually means. Moreover, while some bloggers would welcome being fostered (and the access it would grant them) others would fiercely defend their independence and the opportunity to call x or y judge an ass (should the mood take them). That said, I welcome the #lawblogs event as a great opportunity for the legal blogosphere to get together and share best practice.
I applaud the ethos of Lord Neuberger’s speech. My question is how to effect change to improve our judicial system? No mechanism is in place, for example, to make incompetent judges accountable. Better and more effective selection and training of judges is not equipped to tackle this aspect. Recognising the CPRs are imperfect is not enough. A fast track, simple mechanism for reporting, assessing and changing the CPRs should be in place. Anonymous reporting of inappropriate/unlawful application of the CPRs should be implemented, as should ‘bottom up’ appraisal of judges. The OJC state it cannot adjudicate on judicial decisions such as case management decisions on the one hand, yet do not seemingly understand the CPRs and what a case management decision is on the other. One must question this anomaly as well as the reason why the OJC has so many complaints relating to ‘case management’ decisions (60%). Providing a cd copy of all hearings to the litigants would help litigants in persons and support the overriding objects. ‘Remembering’ what was said can often be completely different to what was said. We do have the technology! It would mean minimal cost in comparison with ‘official transcripts’ which may not be needed. Just a few ideas for starters.
I particularly agree with your comment about incompetent judges. Serious injustices follow from judicial decisions made by judges without the proper training.
Recently a recorder signed a pre- charge, without notice, restraint order which prevented the suspect from using any money other then State Benefits. It also effected a third party and prevented the suspect from continuing her legitimate work.
The suspect was not in receipt of any state benefits and was for three months prevented from buying any item whatsoever even the necessities of life.
This judge totally ignored the provision to carefully scrutinize these applications.
There is a tendency for judges to accept the CPS and Police submissions as fact without considering equality of arms or the possibility they are not in fact being proportional.
I’m not sure what you mean by fast track as there are already two common commencement dates for new procedural rules every year (April and October). Moreover, in the event of a need for emergency rules, these can be rapidly drafted and implemented (a good example is Part 79 which was done and dusted in a matter of weeks).
I’m also confused why we would need anonymous reporting of flaws in the CPR.
An explanation as to why case management decisions are difficult (but not impossible) to appeal against is because judges are mainly exercising their discretion in case management conferences and one judge will very rarely agree with another on the correct exercise of their discretion, therefore this will vary on a case by case basis.
Thanks for all the comments so far. As Lucy points out above, European Court of Human Rights webcasts are funded by the Irish Government. This cost an eye-watering €290,000 per year for the first two years:
http://www.dfa.ie/home/index.aspx?id=28839
Presumably this included set-up costs but this still sounds like an astronomical figure.
“An online foundation for the Rule Of Law” would need to have a section on the history of “Law” in this country (ie: England and then related countries as follows) to explain to lay people the how and the why of the modern legal system. Much of the “mystery” of Law in both current senses of the word disappear once the historical development of it is known.
Also, more needs to be done to explain the workings of the various regional and local courts throughout the country.
I’m so glad you and others are raising these issues – I was really shocked when I started studying and researching law how inaccessible information was. Here’s what I’d like to see…
1. Many, many, more Court of Protection judgments redacted and published – legal practitioners, health and social care professionals, families and researchers need more case law to inform practice and understanding.
2. I agree on televising Supreme Court cases. I’ve recently been watching ECtHR webcasts of cases; they’re funded by Irish govt, although dont think they’ll be handing out cash to us somehow…
3. (An impossible dream?) The crown should own copyright of transcripts and judgments, and should be made publicly available wherever they are written up
4. A case tracker – so you can a) find reporting restrictions on cases; b) see if it is going to appeal, or is awaiting judgment
5. I’d love it if Bailii judgments were searchable on Google – the Bailii search engine isn’t that great
6. In addition to judgment-writing lessons, court administrators should make forms and communications accessible to outsiders. In some cases (e.g. http://bit.ly/flDgdo paras 50-52), family don’t understand their rights because they’re embedded in legalese. Given the increasing number of litigants in person, court forms should also be comprehensible to them.
7. Free online updated statutes. It’s not acceptable that the public have to pay to access up to date copies of statute law.
8. (open to argument on this one) I don’t understand why information held by public authorities for the purpose of court proceedings should be exempt from FOIA if doesn’t breach DPA principles. I can think of many cases where I’d like to read the written submissions (suitably redacted) of public authorities.
Thank you Lucy for your valuable input
Whatever can be done so that Justice can be – seen to be done- should be done.
I entirely agree that judgments should include a version which is suitable for the average man. Trawling through legal arguments can confuse the layman so that he is unclear who succeeded. Lets have a short page saying clearly who won and the basics of why.
We need to bring natural justice back to the United Kingdom and the people need to have a reason to respect our Courts.
The more open the Court system and the more user friendly to the layman, the stronger our justice system will be and the more fit for a modern world.
I think televising initially could be handled by having a specific website, with fixed webcams in the courtroom, there could be a user selectable choice of feeds – judges, prosecution & defence, which could be live streamed continuously.
You could also take the final decision of the judges and make it available as a separate avi or other format (preferably hi-res) This could be done automatically by a member of the court pressing a button to start a save when the judges came in and pressing a different one when finished and the system automatically saving it and making it available.
Using a website in this way would enable multiple courts to be made available simultaneously with a minimum of effort.
Placing court on tv whilst appealing would be a waste to the majority of people and to the tv bandwidth.
Excellent Idea. This will enable a proper Court record of all proceedings
I think short judgment summaries are extremely important. As for judgment-writing, I agree with the sentiment that it will prove a challenge to make a judgment both easily understandable to the layman whilst also being relevant to the expert.
Also of import is three, five, seven or nine-bench case judgments being worked at together by the judges. It can be very confusing for everyone to have to read many separate judgments which appear to say the same thing in a slightly different way.