The HM Courts and Tribunals service does publish daily case listings for many courts here, on the Ministry of Justice site. Additionally, some – not all – judgments are made available by the external Bailii initiative, which has recently been appealing for more funds.
But it’s far from anything we might call digital open justice. In fact, the licences for this courts data are limited to specific contractors, Freedom of Information requests have shown.
The Ministry of Justice site states:
“The following lists and services, Royal Courts of Justice, Crown Courts, selected County Courts, Case Archives and Legal News, can be accessed through Courtel on its CourtServe website.”
Courtel, a company based in Egham, Surrey, runs a number of free and paid-for services. It promotes itself as “an excellent example of private sector cooperation with government – in this case the Ministry of Justice – to the benefit of court users in England and Wales”.
The arrangement with Courtel is not new, but I – and others – have been asking how and why Courtel performs this role. Courtel’s website explains that its Courtserve 2000 service is “a time and money saver”.
It says the service costs “far less than you think, try it out at no charge, then wonder how you ever did without it!” How else can you get the information, it asks in its FAQ, answering itself: “Well you can always send someone down to the courts and read them off the notice boards, or try phoning! But why bother, we live in a digital world don’t we?”
According to the MoJ, which supplied information in response to programmer Mark Goodge’s Freedom of Information request, Courtel does not receive money to provide the listings, but it does retain an exclusive license.
“You have asked if any payment is exchanged for the data. The agreement between HMCTS and Courtel for the Crown and County Court lists is a concessionary Licence and no money is involved.
“You asked how the data is provided to Courtel. In the Crown Court there is secure software that allows Courtel to extract information directly from the Crown Court system. In the County Courts secure e-mail is used to transfer the data.
“You asked if the information was available to other publishers on the same basis. The Licence between Courtel and HMCTS is currently exclusive, with a rolling 12 month notice period applicable should either party seek to terminate the agreement. Any other interested publisher would need to contact HMCTS to express an interest in accessing this data.”
On learning this, Goodge submitted another request asking how this arrangement came to be and why an exclusive contract with Courtel is justified, given that section 14 of The Re-use of Public Sector Information Regulations 2005 states that:
“(1) Subject to paragraph (2), a public sector body shall not enter into an exclusive arrangement with any person including an applicant. (2) A public sector body may, where necessary for the provision of a service in the public interest, enter into an exclusive arrangement.”
On his blog he comments:
“I’m not opposed in principle to privatisation of public services, so long as it delivers benefits to the taxpayer and the consumer. But this arrangement clearly doesn’t. Courtel are getting all the benefits of a data monopoly, while the taxpayer (via the court service) gets nothing in return as the data is being given to them for free.
“And the consumer loses out as the restrictive nature of Courtserve means that public access to the information is unduly limited and costly. (Not to mention the fact that Courtel’s contract with the court service requires them, if requested, to pass details of their subscribers to the court service. I wonder how many subscribers are actually aware of that?)
“I think this is bordering on scandalous. While other departments of government have made great strides towards opening up their data for public use, the Ministry of Justice and the court service have quietly headed off in the other direction and made access to their data less open instead. It’s time that was changed.”
Bailing out Bailii
Meanwhile, the Bailii service publishes judgments for free. Like Courtel, it also has a contract with HM Courts.
Another FoI request submitted by Mark Goodge confirmed that HM Courts paid Bailii £35,468 last year for its judgment publication service – hosted externally on Bailii’s site. Bailii also receives money from numerous legal societies and organisations, including the General Council of the Bar of England & Wales.
The MoJ told Goodge that
“BAILII is a contracted supplier of the Ministry of Justice to provide judgements to the public. BAILII do receive payment from the Ministry of Justice to assist the admin to be able to upload these judgements on behalf of the Judiciary. This payment information is commercially sensitive and has been redacted from the contract document schedules enclosed. The total sum spent with BAILII for 2010 /2011 was £35,468.
“At the moment the Royal Courts of Justice (RCJ) is the only government department who pay BAILII to publish our judgments. We provide BAILI with electronic copies of approved judgments, from the High Court and Court of Appeals. The majority of the judgements are sent on to BAILII from Civil Appeals and the High Court, plus other areas and individuals within the RCJ.
“As an example; The Administrative Court is currently required to publish all its substantive decisions on BAILII, together with any decisions in permission applications which are considered to be of public importance.”
Goodge asked whether the information supplied to BAILII also available to other
publishers on the same basis. They replied
“No, the information is available free of charge via the BAILII website. We have scheduled this requirement to be re-tendered in 2012.
“The approved judgments remain Crown Copyright. The CONTRACTOR cannot assign copyright to any recipient and must ensure within the terms and conditions of their service to the recipient, that the approved judgments shall not be further distributed, copied or otherwise transmitted without the prior approval of the AUTHORITY.”
Many lawyers enthusiastically praise the Bailii service, which has opened up free courts data to a much larger audience.
However, there are a number of limitations with the Bailii service that are important to flag up. Crucially, Bailii prevents scraping of the data, meaning that programmers cannot make the public data useful in other ways. On the Nearly Legal blog Francis Davey points out two main flaws: users are not able to make use of Bailii feeds or use Google to search it. He comments:
“If bailii adopted a more open policy on its information … I’d consider donating. As things stand (for example not being able to make use of bailii feeds or use google to search it) I’m a gnat’s whisker away from trying to persuade organisations I am a member of to stop donating to it. It could certainly gain more goodwill (and money) by being more open.”
The closed – and costly – nature of courts data is restricting legal research and analysis and public access to legal information.
The legal researcher Lucy Series has written about her experiences on her Small Places blog. She describes how she was refused information about forthcoming hearings at a County Court.
“They said they could provide me with information on what cases would be heard the next day, but no more. It turned out they held listings for the week ahead, but they weren’t allowed to shared them with members of the public. If I wanted to attend a particular trial, I would have to harass the poor court officer every day to find out what was coming up. This seemed like a monumental waste of both my time and theirs.
“At first I wondered if the information was not made available because it was likely to change at short notice, or because it wasn’t collected in an easily shareable format. But information about forthcoming hearings is made available – for a fee – through a third party website [Courtel].”
Picking up on Mark Goodge’s FoI and the revelation of the exclusive licence, she says:
“This effectively ensures that any member of the public who is not registered with Courtserve will not be able to access the court listings (except through daily harassment of the court staff).”
Series finds that this arrangement “seems to fit within a wider pattern of a lack of transparency and open access to information in the UK legal system”.
“A system where the public have no free access to up to date copies of legislation. Where court judgments are not always published, and yet some of these unpublished judgments manage to find their way onto third party websites (sometimes only accessible through expensive subscriptions). Even academic legal journals seem to be beset by this information paucity; perhaps a result of a heavily monopolised and technologically outdated publishing culture.”
“I find this situation more than a little perplexing. It would make more sense to me if the Ministry of Justice were in some way financially benefiting from the sale of the information. Given that they are not, what benefit does the license bring to them? The information must be shared, certainly, but it seems to me that in this day and age it would incur minimal costs to post the information they send to Courtel on their website.
“The only answer that occurs to me, is that the Ministry of Justice cannot (or believes it cannot) post the raw information on its website for data protection reasons. By outsourcing to Courtel – who restrict the users of the information – they can ensure the information distribution is kept to a minimum without the faff of having to register court list users themselves.
“Indeed, the contract itself contains quite a lengthy data protection clause (clause 5), restricting how long Courtel may store the data for and how they may process it. Another point in favour of this possibility, is that the HMCS website that gives the daily listings appears to have blocked internet crawlers that cache webpages (see, e.g., the Wayback machine for the HMCS site which seems to have been blocked from July 2009 onwards). This would prevent any third party from collating data on who had been involved in court proceedings in the past.”
“Of course, that does not mean the Ministry of Justice’s reading of data protection law is correct, nor indeed means its license is compliant with the Re-use of Public Sector Information Regulations 2005 or the ideals of Open Justice. “
In another blog post, Mark Goodge also raises the issue of the possible illegality of the exclusive arrangement with Courtel, but clarifies that his gripe is not with Courtel’s commercial enterprise:
“I don’t object to Courtel making money from the data – their Courtserve 2000 software (and even the email alert system) is clearly a value added service and they’re fully entitled to charge for it.”
However, he continues,
“…what I do object to is the fact that Courtel have a monopoly on the data and that monopoly not only makes them the only organisation able to exploit it commercially but it also prevents non-profit organisations, community groups and individuals from using the data effectively.
“I can see no reason why court lists should not be published by the courts themselves on their own website under an Open Government licence – it would cost them no more than they currently spend on giving it away to Courtel, and it would allow a much wider use than is currently possible. If Courtserve 2000 is as good as Courtel say it is, then allowing competitors isn’t going to hurt them too much. On the other hand, if it’s not as good as it’s claimed to be, then some competition will be in everyone’s interest.”
Series and Goodge have raised important points. We need to question the Ministry of Justice’s handling of courts data and campaign for its release in more open and fair formats. Private contractors like Courtel should not have a monopoly on the data.
It’s time for Digital Open Justice. I intend to research and campaign more in this area. In the meantime, I’ve set up this Google Group for initial discussion.
Please share your experiences and thoughts by joining:
With thanks to Lucy Series and Mark Goodge and members of the Judgmental project for their valuable contribution to this debate.