Why we need a national commitment to open justice data
This blogpost was written by Dr Judith Townend. Dr Judith Townend is a senior lecturer in media and information law at the University of Sussex. She was commissioned by Spotlight on Corruption to prepare a proposal to guide the Open Government commitment to open justice.
Justice ‘data’ – that is the information that arises from the process and administration of justice – is perhaps one of the most fundamentally important administrative data categories in public life. Much of it is supposed to be publicly accessible under the common law principle of open justice; this is embedded in the notion that any member of the public or media should be able to attend a public court hearing and report what they see or hear.
With the development of technology, a good deal of that information has been made accessible electronically, whether freely online or via paid services. Crucially, rather than the HM Courts and Tribunals Service and the judiciary publishing and disseminating this data, it has been third party providers who have predominantly provided these data services. These include the providers of official Law Reports, newspapers and broadcasters reporting on court proceedings, the charity BAILII which publishes judgments, and private companies which operate legal research databases and listing services, for example.
This has changed to some extent in recent years: the UK Supreme Court now publishes an extensive range of materials relating to its cases on its own website, including hearing videos; the Judicial Office in England and Wales publishes some judgments and sentencing remarks on its website; many tribunal decisions, such as those from the Employment Tribunal are published online; some court listings can be found on either the Justice.gov.uk site or Gov.uk pages.
Overall, the provision of justice data is partial, inconsistent and not subject to any common standard or approach. As a result, journalists and other interested parties – e.g. NGOs – have had to challenge their rights to courts data via expensive and cumbersome appeal processes, as in the recent Cape Intermediate Holdings Ltd v Dring litigation, which went all the way to the UK Supreme Court.
On the other hand, there are concerns about the manner in which personal data arising from court proceedings should be made accessible and where an individual’s right to privacy arises; the Court of Justice of the European Union has just ruled, for example, on the obligation for search engines to assess the rights of data subjects in their processing of data relating to criminal proceedings.
A roundtable of experts, including representatives from the Department of Digital, Culture, Media and Sport (DCMS), the Ministry of Justice (MOJ) and HM Courts and Tribunals Service (HMCTS), met to discuss these and other issues at a roundtable hosted by Spotlight on Corruption (formerly Corruption Watch) and the Open Government Network in May 2019. The resulting report outlines the steps the UK Government, in partnership with civil society groups, members of the judiciary and other legal experts, could take to ensure that open justice is more effectively and fairly embedded in the UK court system.
In the report we outline a series of options for a national commitment to open justice in the next Open Government National Action Plan, as well as a number of short-term steps for judicial, governmental and non-governmental bodies to take, such as setting up a stakeholder working group on open justice and for the MOJ and HMCTS to commission and independent report and consultation on these pressing issues.
If you would like to be part of future discussions, please register your interest with Andreas Pavlou, Network Lead ([email protected]).