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Current speakers include:

• Jonathan Coad, Partner, Lewis Silkin
• Professor Steve Peers, University of Essex,
• Professor Lorna Woods, University of Essex
• Peter Noorlander, Chief Executive, Media Legal Defence Initiative

A series of posts about the judgment will be posted on the Human Rights Centre blog, and on on the CLJJ blog. The first post, by Lorna Woods, presents the background to the case, and highlights a number of the key issues.

It is part of a public consultation on the National Information Infrastructure (NII), a new initiative for improving government data.

The government is currently identifying which datasets should be included. For the MoJ, these include case management systems, language services information, custodial data and much more [listed below]. So far there is next to no feedback on these.

If you think these would be valuable open data sets, you need to create a data.gov.uk profile if you don’t already have one, and ‘add feedback’ under the dataset you’re interested in. You’ll be asked how opening the data will be beneficial to society/ the economy/public services etc. and to give some [public] comments.

That would probably also be the place to raise any concerns or suggestions about the way in which the data should be released.

Thanks to Max Froumentin at the MoJ for alerting me to this.

The unpublished datasets (listed alphabetically)

• CHASE: Database for tracking and monitoring ministerial correspondence
• CREST Case management system for Crown Court cases
• CasPER The Official Solicitor and Public Trustee Case Management System
• Care Monitoring System Case progression tool for monitoring care and supervision applications in family courts
• CaseMan Case management system for county court cases
• Client and cost management system (CCMS) Database holding details of Legal Aid work relating to: Civil Representation Means & Merits, Civil Representation Case Management including The Statutory Charge, Cash receipting, Client & Provider payments, Billing
• Controlled Work & Administration (CWA) Database holding details of Legal Aid work relating to: Contract & Schedule Maintenance, Provider Reference Data, Civil advice (non court) claims, Police Station advice claims, Magistrates Court claims
• Corporate Information Systems (CIS) Database holding details of Legal Aid work relating to: Civil Representation Means & Merits, Civil Representation Case Management including The Statutory Charge, Cash receipting, Client & Provider payments, Billing (Civil Rep, Mediation, Magistrates Court Non Standard Fees, High Cost Cases)
• Court Funds Office  records Current and historical details of client funds held in court
• Crown Court Remuneration (CCR) and Crown Court Litigator Fee (CCLF) Legal Aid billing system for Crown Court cases
• Crown Court Sentencing Survey Database Details of the factors affecting judge’s sentencing decisions at the Crown Court
• FamilyMan Case management system for family court cases.
• Forced Marriage Protection Orders Database of all Forced Marriage Protection Order cases in family courts
• Freedom of Information (FoI) requests database Case management system for FoI requests received by the Ministry of Justice (MoJ)
• Her Majesty’s Courts & Tribunals Service language services information system Requests for face-to-face language services completed under the national Language Services Framework Agreement (commencing on 30th January 2012), and complaints made, by Criminal Justice System partner (e.g. criminal courts, tribunals etc)
• Her Majesty’s Courts and Tribunals Service (HMCTS) Performance Database Database of summary statistical information about all HMCTS cases.
• Independent Monitoring Board Appointments Files HR type information relating to appointment of IMB Members, eg Application forms, interview panel forms, security forms, Ministerial Submissions
• Independent Monitoring Board Conduct & Discipline Cases Complaints about IMB members by IMB Members, Staff, detainees or prisoners
• Independent Monitoring Board Database Database containing HR type information for 2000+ IMB current and former members
• Integrated Accredited Programmes System (IAPS) Operational database for the management of accredited programme requirements in all probation trusts
• JUROR Holds records of all potential jurors for Crown, Civil and Coroners Courts in England and Wales.
• Libra Case management system for magistrates’ court cases, including information on breaches
• Linked Data The linked data is developmental and is produced from linking existing administrative data sources together to create a new valuable information asset which is being used for a variety of purposes.
• Means Assessment & Administration Tool (MAAT) Database holding details of Legal Aid work relating to: Magistrates Means Assessment, Crown Court Means Assessment, Benefit Status Checking
• MoJ extract of Police National Computer Extract of selected fields from the Police National Computer (PNC).
• Multi-Agency Public Protection Arrangements (MAPPA) Database Central system for storing data on MAPPA eligible offenders
• National Offender Management Service (NOMS) Deaths in Custody Database The central system for storing information relating to deaths in prison custody in England and Wales.
• National Offender Management Service incident reporting system The system for recording incidents in prison custody including self-harm and assaults.
• ORACLE HRMS HR Database containing the human resources records for public sector Prison Service and National Offender Management Service (NOMS) HQ staff.
• Offender Assessment System (OASys) Operational database used to assess the risks and needs of eligible offenders in prisons and probation trusts.
• Phoenix Database containing the human resources records for Ministry of Justice staff
• Police force Failure To Appear warrant information systems (various across the 43 police forces in England & Wales) Failure To Appear (FTA) warrants received, executed and outstanding, by category of warrant, in each police force area.
• Police force Penalty Notice for Disorder (PND) systems (various across the 43 police forces in England & Wales) Penalty Notices for Disorder (PNDs) issued and paid.
• Possession Claim Online Case management system for claims made through Possession Claim Online website
• Prison National Offender Management Information System (p-NOMIS) and Inmate Information System (IIS) Prison case management systems.
• Probation Trust Case Management Systems Probation supervision and court reports.
• Public Protection Unit Database (PPUD) Case management system for those offenders serving life sentences and indeterminate sentences of imprisonment for public protection, recalled offenders and offenders who are restricted patients.
• Secure Accommodation Clearing House System (SACHS) Monthly population data for the under-18 custodial population.
• Tribunals Service Case Management systems including: ARIA, ETHOS (and Caseflow), GAPs 2, MARTHA, CICA and a set of SQL and Access based systems, and manual case records. Case management systems holding information on appeals in Tribunals
• YJMIS Youth Offending Team data return
• eAsset Monthly population data for the under-18 custodial population
• i-grasp Database containing details of recruitment exercises
• nDelius Probation supervision and court reports.

PA Media Lawyer has highlighted that a new Rule 50 of the Employment Tribunal Regulations 2013 stipulates a new provision for “Privacy and restrictions on disclosure” (PA: subscription required).

In Mr Justice Underhill’s Review of the employment tribunal rules published in 2012 he discussed privacy, restricted reporting orders and anonymity, finding that (Meeja Law’s emphasis):

The current Rules provide a limited and sharply-defined regime governing where anonymity and restricted reporting orders can be made, deriving from the prescriptive terms of sections 11 and 12 of the Employment Tribunals Act 1996. These have been held by recent case-law to be out of step with the requirements both of the Human Rights Act and of EU jurisprudence. Our proposed new rule 55 provides for a more flexible regime which allows Tribunals to take appropriate steps to balance the important principles of open justice and freedom of expression on the one hand and of privacy and effective justice on the other. The [proposed] rule goes beyond the explicit rule-making powers conferred by the 1996 Act but we have no doubt that it is within your powers under the Human Rights Act. The complications of the different vires have regrettably made the rule rather more elaborate than we would have wished. It is perhaps worth saying that this is not a case where the requirements of the ECHR compel a British legislator or tribunal to take steps that are contrary to domestic policy: the existing regime was poorly conceived and drafted and required revision in any event.

The government’s consultation on the review [PDF] asked whether respondents agreed with the recommended approach to make the privacy and restricted reporting regime “more flexible“. Of 48 responses, 36 said yes, 4 said no and 8 were unsure. The 4 ‘nos’ were in the Business Representative organisation / TU category.

The majority of responses (75% ) to this question welcomed the new rule which is a simplification of what was considered by many to be an overly prescriptive provision. It was widely felt that a more generic rule for when the proceedings, or part of the proceedings, could be held in private would allow judges the discretion they need to decide on the most appropriate action in individual cases.

However, we did receive strong representations from groups representing the media, who felt that this new approach was contrary to the principles of open justice and out of step with the prevailing degree of openness witnessed in other courts and tribunals. These responses considered that a more flexible privacy regime represented a move towards an augmentation in the number of closed hearings, with parties putting undue pressure on judges to restrict the reporting of tribunals for fear of damage to a business’s reputation if cases were widely reported. These responses also demanded a fuller explanation of why Government was taking this approach to the privacy rules.

In response, in March 2013, the Government said (Meeja Law’s emphasis):

It is not the Government’s intention that the new rules on privacy should restrict the ability of the media and other commentators to report on proceedings where it is appropriate to do so. The old rules on privacy and restricted reporting were designed to deal with specific instances where hearings should be held in private, and covered proceedings that involved, for the main part, allegations of sexual misconduct or disability discrimination. Mr Justice Underhill felt that it was important that his review brought the provisions on privacy in Employment Tribunals more into line with the requirements of the Human Rights Act 1998 and jurisprudence of the European Court of Human Rights and new rule (new rule 60) is therefore less prescriptive. Whilst the suggested changes to the rules widen the existing legislative provisions in this area, and give judges more discretion and flexibility in the rules for deciding whether anonymity or restricted reporting orders are required, such power already exists (see the case of F v G [2012] ICR 246). In F v G, the Employment Appeal Tribunal said that where anonymisation or reporting restrictions are needed to protect a party’s rights under article 8 of the European Convention on Human Rights, an Employment Tribunal can use its general powers under rule 10 to order such privacy measures. Nonetheless, it is not the intention that simply because a power is stated explicitly in the new rules it will be exercised substantially more frequently than it currently is. In making these recommendations, Mr Justice Underhill has sought to balance the needs for open justice on one side with the need for privacy and an effective tribunal system on the other.

…

Government believes that Mr Justice Underhill’s suggested rule on privacy and restricted reporting strikes the difficult balance between the need for the justice system to be as open as possible whilst also ensuring that judges have the provisions they need to manage sensitive cases in the most efficient and effective way. The new rule on privacy is much simpler to understand for all parties, and provides judges with the clear case management powers they need to approach sensitive claims on a case by case basis. However, Government recognises the concerns of the media around this amendment, and agrees that it should not become the normal practice of tribunals to hold proceedings in private. As it is now, reporting should only be restricted where it is in the interests of justice to do so. To address these concerns the new draft of the rules makes clear that in making a decision on privacy, the tribunal shall give full weight to the principle of open justice and to the Convention right to freedom of expression.

These provisions are now Rule 50 in the The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, entitled “Privacy and restrictions on disclosure” (Meeja Law’s emphasis):

50.—(1) A Tribunal may at any stage of the proceedings, on its own initiative or on application, make an order with a view to preventing or restricting the public disclosure of any aspect of those proceedings so far as it considers necessary in the interests of justice or in order to protect the Convention rights of any person or in the circumstances identified in section 10A of the Employment Tribunals Act.

(2) In considering whether to make an order under this rule, the Tribunal shall give full weight to the principle of open justice and to the Convention right to freedom of expression.

(3) Such orders may include—

(a) an order that a hearing that would otherwise be in public be conducted, in whole or in part, in private;

(b) an order that the identities of specified parties, witnesses or other persons referred to in the proceedings should not be disclosed to the public, by the use of anonymisation or otherwise, whether in the course of any hearing or in its listing or in any documents entered on the Register or otherwise forming part of the public record;

(c) an order for measures preventing witnesses at a public hearing being identifiable by members of the public;

(d) a restricted reporting order within the terms of section 11 or 12 of the Employment Tribunals Act.

(4) Any party, or other person with a legitimate interest, who has not had a reasonable opportunity to make representations before an order under this rule is made may apply to the Tribunal in writing for the order to be revoked or discharged, either on the basis of written representations or, if requested, at a hearing.

(5) Where an order is made under paragraph (3)(d) above—

(a) it shall specify the person whose identity is protected; and may specify particular matters of which publication is prohibited as likely to lead to that person’s identification;

(b) it shall specify the duration of the order;

(c) the Tribunal shall ensure that a notice of the fact that such an order has been made in relation to those proceedings is displayed on the notice board of the Tribunal with any list of the proceedings taking place before the Tribunal, and on the door of the room in which the proceedings affected by the order are taking place; and

(d) the Tribunal may order that it applies also to any other proceedings being heard as part of the same hearing.

(6) ”Convention rights” has the meaning given to it in section 1 of the Human Rights Act 1998(22).

via The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.

The theme was ‘The challenges of complying with evolving standards’, and the other speakers included: Martin Hoskins, data protection consultant; Judith Jones, Group Manager, Government & Society, Information Commissioner’s Officer; Robert Bond, Head of Data Protection and Information Security at Speechly Bircham; and Lynne Wyeth, Head of Information Governance, Leicester City Council.

It provided a fascinating insight into the regulatory and legal challenges ahead (especially in view of the EC’s draft General Data Protection Regulation*), both in terms of the theoretical framework and practical issues on the ground for DP officers (whose number is set to increase, if EC proposals go ahead).

I attempted to give a bit of context to the Centre for Law, Justice and Journalism’s ‘Open Justice in the Digital Era’ project and the privacy-related issues we have stumbled upon, in discussing potential recommendations for more efficient and systematic digitisation of courts information.

In a few bullet points, here’s the gist:

• The premise of ‘Open Justice in the Digital Era’ is simple: enhancing freedom of expression and open justice through digital dissemination of courts data
• Inspired by other initiatives opening up governmental data (e.g mySociety’s WhatDoTheyKnow, TheyWorkForYou etc.)
• But: very little useable data exists at source. It’s public (sort of) but no-one seems to have taken a particularly systematic approach to opening it up
• Our project ran two events in 2012, with view to forming recommendations in due course
• Some of the ideas discussed (not recommendations at this stage) include:
  • The publication of ‘noticeboard’ court lists
  • The publication of court results (see William Perrin and discussion on Information Rights and Wrongs / HonestlyReal)
  • The publication of court documents such as all statements of case, judgments, orders, witness statements and written submissions
  • A reporting restriction notification system (see Scottish courts online system)
  • Wider availability of judgments and judgment summaries (opened under an Open Government Licence)
• Some of this material would be fairly straightforward to open up online, but some suggestions – particularly those around court lists and sentencing data – raise thorny issues for Data Protection, Rehabilitation of Offenders and the ‘Right to be Forgotten’, a concept included in the draft Regulation
• Publication of legal information has grown up in a piecemeal fashion in the digital era – part privatized, with few central guidelines. A lot of the way material is published has its roots in journalistic / law reports convention, developed in a pre-internet world, when personal digital records would have been the stuff of dystopia novels
• At present, it’s all very inconsistent – there has been some opening up of courts information around the web (some efforts have encountered data protection objections – see Wigan World’s update, for example)
• The way courts material is handled is raising questions across Europe. In Spain, for example, the National Court (AN) has referred to the European Court of Justice with questions about a search engine result for a debt case, in relation to the Right to be Forgotten
• In 1955, Lord Denning described how a member of the public is entitled to report all that he has seen and heard in the public press. Now, the public doesn’t need the press to do it, but how should it be managed, when it has such a powerful effect on an individual’s digital identity (not only defendants, but victims and witnesses too**)?
• A couple of key questions about the current state of play: Is it logical to allow a private company to access and publish the data in closed/open databases, but not a not-for-profit organisation, or individuals? It is logical, or even possible, to publish courts data online but make it non-indexable by Google?
• In forming recommendations  we must consider these difficult issues around individuals’ privacy rights
• To discuss them is not to be hostile or obstructive to the right to freedom of expression: it is merely being responsible and ethical in our practice. We need to look at both sides of the privacy/freedom of expression coin, in order to assess the best ways of opening up information in the public interest and securing it when it’s legitimate to do so
• A coherent approach to the management of courts data is needed and the MoJ and judiciary should be giving this issue the attention it deserves

*A vote on on the lead rapporteur’s report regarding amendments to the Proposed Regulation, scheduled for 29 May, has been postponed, as a result of the high number of amendments to consider.

**As I was reminded in the questions following my talk. Other responses from the group raised even more uncertainties and questions. More views and problematic scenarios are welcome below…

Abstract: The Leveson Inquiry has broken new ground for court and political reporting: for the first time a public inquiry held under the Inquiries Act 2005 has been played out live on the internet. Online media provided a chance for ordinary members of the public, non-profit groups and small media organisations to expand and question mainstream media narratives, as they watched, blogged and tweeted proceedings. This paper considers public access to the inquiry, arguing that digital communication has allowed for a newly liberated form of debate and enhanced the public’s entitlement to report what they hear in court, in accordance with a longstanding legal tradition of open justice. Additionally, it has improved UK citizens’ right to freedom of expression – which includes the right to receive as well as impart information and ideas. The public’s increased access to inquiry resources and reporting tools does not necessarily indicate a greater role on the ‘news stage’, but it opens up the possibility for greater public influence on news discourse, and beyond that, political debate.

Citation: Townend, J (2013) ‘Leveson online: A publicly reported inquiry’, Ethical Space, Vol. 10, No. 1.

He has since received an update from the courts service / MoJ, which has confirmed that the full list was released in error. Significantly, it said:

We believe the majority of the information in the Court Lists is exempt from disclosure under Section 32 (Court Records) and Section 40 (Personal Information) of the Freedom of Information Act. We also believe provision and publication of sensitive personal data may also breach The Data Protection Act. There are also issues around ensuring the appropriate retention and disposal of information. Finally there may be some information whose release is prohibited by statute or where a judge or magistrate will have imposed a reporting restriction.

Jonathan Baines has blogged about the situation and the wider context here, concluding:

While distinction should be drawn between a “full” list, such as was inadvertently disclosed to Richard, and “noticeboard” lists, habitually stuck up outside the court room, the points raised by this incident exemplify some crucial considerations for the development of the justice system in a digital era. It seems clear that, even if a court were permitted to this or similar information, the re-publication by others would infringe one or all of the SO(A)A, DPA and MCA. What this means for the advancement of open justice, the protection of privacy rights and indeed the rehabilitation of offenders is something I hope to try to grapple with in a future post (or posts).

On Twitter, William Perrin, a member of the Government’s Crime and Justice Transparency Sector Panel, points out that the “issue has to be taken in the round, rather than in isolation on DPA alone“. He lists some of the competing interests here.

The other big question that arises is who should be able to access full lists, if at all? A commenter on Taylor’s blog believes:

Thoughts/suggestions/links welcome. The discussion continues.

But an incidental digital (and Google) record around court proceedings is being created nonetheless: when a blogger quotes or reproduces part of a judgment, in newspaper reports, on Twitter and so on.  Information that is available in open court – such as a defendant’s personal details – often (and legitimately) makes its way online.

Would it be better to have a complete record noting the outcome of the case, or leave it to this current state of play, where it’s a matter of chance whether a digital record gets created, often left incomplete? There are numerous complaints to the PCC where a newspaper has only partially reported a case, for example.

There needs to be proper consideration of what type of information should be part of a digital courts record, and how it should be released, as this recent example brought to my attention by Richard Taylor, shows.

He put in a freedom of information request for his local Magistrates’ court lists and was pleased that it resulted in its release in a “reasonably timely manner” (6 days).

But, of rather more concern, Taylor believes the list contained material that would be illegal to publish and so he has redacted the record, and removed it from WhatDoTheyKnow.com.

As a result of his request he has published “example court lists in full for selected upcoming sittings to be held at Cambridge Magistrates Courts, as well as further selected individual listed items in full“, which may be “the first time this has been done“.

In regards to the responsible – and legal – release of information, he says:

If the Courts and the Tribunals Service had a responsibility to remove such information prior to releasing the information is an interesting question. This is information anyone can obtain either by making the same freedom of information request I did, or by turning up to the court and asking for a copy of the court list on the day of the hearing, or indeed by sitting in the court and hearing the charges being read out…

To be continued. I’m hoping that other legal bloggers might add their views on the questions raised by Richard Taylor’s post…

More digital open justice reading:

• Open Justice in the Digital Era project: http://bit.ly/openjustice
• Emily Goodhand: ‘Who owns the copyright on barristers’ advocacy?’

Update here (11.02.13).

It isn’t necessary to publish information about specific cases contemporaneously, nor to publish to the world at large at any time the “not so basic” details of a specific case, in the way that the courts have started to do. The Practice Direction can be amended to oblige practitioners to provide the required basic information to a central office in the High Court. Transparency is possible through statistics without needing to draw attention to individuals at the time they obtain the injunction.

I’ve left a comment below the piece, asking whether the open justice principle in fact requires the publication of basic detail about contemporaneous privacy judgments, which mimics a question put by Edward Thompson in the Journal of Media Law last December, in relation to cameras in court. I am not attempting to provide an answer at this stage, but am interested in hearing what other people think.

Full Fact: Access to public platforms – an opportunity

One of the effects of the new found ease of access to public platforms has been that certain public bodies have been able to throw open their work to the public.

• Parliament, particularly with Hansard and broadcasting (and the independent TheyWorkForYou.com for text and BBC Democracy Live for video)
• Legislation.gov.uk
• Government, which publishes everything from white papers to press releases and transcripts of press conferences
• Office for National Statistics and official statistics producers generally
• Academic research is increasingly freely available online
• The Supreme Court, with video, judgments and its exemplary press summaries of judgments

The decline of court reporting has long been lamented. It has been rued repeatedly during the Inquiry. Through our work we understand why, and what a gap is being left as this staple journalism declines. Nonetheless, it is not coming back. It is therefore essential that the rest of the court system, and particularly the criminal courts, stop being the glaring exception and start to follow the examples given above.

Factchecking sentencing remarks is currently all but impossible even when they become a subject of national controversy. Several papers recently ran stories like ‘Muslim women not used to drinking walk free after attack on woman’. It was an eye-catching claim that we wanted to factcheck (see: FullFact 2011)

Unfortunately, the judiciary was unwilling or incapable of commenting on the reported version of events, or on what was said by the judge in his sentencing remarks. Sentencing is constantly under heavy scrutiny and criticism and it seems to us that sentencing remarks should be recorded and published online. That would not replace traditional court reporting but it would improve on the growing vacuum in this area. Open justice in this century must mean more than merely being able to walk into the courtroom.

The more direct access to official sources is made easy, the greater the social pressure for good journalism. Moreover, having official and primary sources available online provides a foundation from which assessable and trustworthy journalism can be built up.

Source: Full Fact 2012, p. 7-8 [PDF]. Format altered and emphasis added in this post.