The Ministry of Justice asked me to sit on their Crime and Justice Sector Transparency Panel. I’m not a legal expert, but as an local active citizen I want to know what is going on in my excellent local courts as they dispense justice on the community’s behalf. But it is nearly impossible to find out unless you go and sit in the public gallery all day. I’ve tried getting basic information from my local Magistrates Court but have been defeated. I was only after simple stuff like a list of cases and results – i.e. which local people are up in court and who is innocent and guilty. The sort of thing that gives people confidence that the system is working.
Journalists complained to me that even though they have a privileged position, their job wasn’t much easier and was getting worse. They said that court officers seemed confused or ignorant of complex and overlapping protocols, ‘data protection’ and ‘copyright’. As the local press declines the courts and the government should make it easier to get basic justice information to the public, not harder.
In 1911 a paper based system where you queued up in person for a chitty with little certainty of success may have been fine, in 2011 it’s wrong – I can’t understand why basic information about our courts isn’t available online. The courts are awash with procedural paper, presumably generated electronically at some point. It’s very simple to publish to the web these days: all you need is access to email to mail a word document or spreadsheet to Scribd or Posterous. Although we ought to expect better of a modern transparent £multi hundred million system.
With the government’s drive to transparency and open data I tried to get to the bottom of the problem. I brokered a meeting for specialist court reporting and news agency Central News and Ministry of Justice officials. The court reporters set out a fairly dysfunctional experience as they sought to get basic, consistent, common sense information from Court officials. MOJ staff were very helpful and undertook to address problems – but it struck me that, given the other pressures they are under post riots, MOJ has an insurmountable managerial task to re-educate court staff in the minutiae of information management.
To my mind the issues are more behavioural – court staff want courts to be open but they have got into some bad habits and arcane procedures. Much could be done with proper leadership signals and setting out the fundamentals in plain English. So I offered to write down a simple charter for transparency in the courts of the sort that the Secretary of State and the Senior Presiding Judge could publish as co-signatories and might fit on one side of paper.
With apologies for my lack of precise legal terminology here’s a draft – the Senior Presiding Judge and Secretary of State for Justice should set out the following basic principles of open-ness and transparency for courts of all types. This could also apply to tribunals, coroners courts with minor adaptation.
Courts Transparency Charter (draft)
Courts are open to the public and the media, with only narrow exceptions. This is at the heart of delivery of justice in a modern democracy and a proud national tradition. The government, the judiciary and people who work in courts want courts to be open transparent and comprehensible to the public and the press. But the courts over hundreds of years have evolved into a complex system that is hard for outsiders to understand.
In the interests of transparency and confidence in the justice system, people should be able to find out easily, on the internet:
what cases are expected to come up in a court from the time that they are scheduled
name, address and specific charges in all cases available from the time the case is scheduled (see footnote)
the full names, including first names, of judges, prosecution and defence lawyers, witnesses, and other professionals who speak during proceedings (e.g. magistrates’ clerks giving legal advice) from when they are known
judgements handed down from the end of the working day on which the case is concluded
next stage of the case.
The longstanding openness of courts must not be compromised by data protection nor copyright. In particular, well meaning but misplaced concerns about the data protection act and copyright must not stop the recording and transmission of information presented in open court.
All the above is subject to contempt of court and protection of vulnerable defendants and witnesses – exceptions to immediate transparency that are fundamental to the efficient effective functioning of the justice system. Case information should be flagged where restrictions apply and those restrictions set out in writing.
People who use information illegally or irresponsibly against the interests of efficient, effective justice or in such as way as to compromise the vulnerable may have their access to information withdrawn.
It should be assumed that all information is available to the press and the public, apart from the general exceptions above.
The best courts already meet these principles, we would like all courts to do so.
Footnote
In criminal cases, the following basic information should be readily available
– The full spelling of a defendant’s name
– Their date of birth and full home address, including door number and postcode
– The charges against them (including an opportunity to read them)
– Written copies of any reporting restrictions applicable in the caseCharges should be set out in the form used in Magistrates court – “On 23/07/2011 at Oxford Street, London, assaulted Joe Bloggs Contrary to section 39 of the Criminal Justice Act 1988”
Comments are welcome below, please stay on topic and courteous.
William Perrin
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Hi William
Personal data consisting of information as to the commission or alleged commission by him of any offence is sensitive personal data under the Data Protection Act 1998. Processing by data controllers of personal data in court listings must be fair and lawful and shall not be processed unless at least one of the conditions in Schedule 3 of the Act is met – I cannot see, under current law, any condition which would be met under your proposal.
I wonder if Jonathan Bamford of the Information Commissioner’s Office, who I understand also sits on the MoJ Transparency Panel, has commented on this issue?
Hi Jon and Tim – thanks for your comment. You draw out helpfully the head on collision between data protection and the principle and practice of open courts.
Your perspective is that data protection should prevail, mine is that the courts and transparency should. In the minority of cases that make the news the data you described is processed in bulk by news websites, papers, broadcasters and the information systems that support them. The summer riots demonstrated such processing on a large scale.
At present none of us, nor our democracy as a whole are served well by a conflict between these two forces. And I hope ministers can resolve it in the proper way.
Jonathan is on the panel and we tend to have robust discussions, though not about this yet.
Tim – yes the draft above is clear that the vulnerable should be protected as they are now.
Hi William – thanks for the response. You’re right – such data is sometimes processed, and it’s certainly not as straightforward as I perhaps suggested. I’m working on a “loser-length” ((c) Ben Goldacre) blog post about this important subject.
…sorry – pressed “post comment” before I’d finished. There is a “journalistic” exemption in the DPA which permits certain processing – important qu is how widely the application of that exemption can extend.
William
I am a New York University law school professor writing a book on criminal record policy. I have also written a number of articles comparing US and Europe. Up until I just read the Guardian story, I had though that the UK was mor like the US where court records are publicly available and increasingly on-lne. If you or any other blog readers have references on UK law/policy on public access to court criminal records, I’d much appreciate your sending them to me at Jacobsj@exchange.law.nyu.edu
Jim Jacobs
William.
I am a New York U law prof who writes a lot about criminal records. until I read your blog, I thought that theUK was more like the US where criminal court records are publicly valuable and increasingly (due to e-gov’t’ laws) available on the Internet. If you or any other readers have refs to articles/reports on Uk policy, please send to me at Jacobsj@exchange.law.nyu.edu.
Jim Jacobs
Why is it important to publish the full address of a defendant (presume not just the guilty) including house numbers?
@eric – I worked up this draft with a court reporting agency – it was something that they felt should be there. these details are normally read out in court.
Court reporters have a good reason for including the full address – if there are two people of same name in the same street, or even district, the innocent party can sue for libel. Every trainee journalist learns the case of Newstead v London Express Newspapers, where a man who shared the same name as a convicted bigamist successfully sued. We’re taught always to give the fullest possible identification details – name, age, address and occupation.