It’s all about Bailii

I was very interested to see The Guardian picking up on the issue of published and publically accessible judgments at the weekend in an editorialThe Guardian discusses the oft-bemoaned issue of the judgments not being indexed by Google or other web indexing facilities, and consequently the limited use we can make of powerful Google search engines and added features (like alerts, or deeper functionality of Google Scholar – here’s an example with US case Brown v Board of Education).  In response to the Guardian piece, Adam Wagner at the UK Human Rights Blog makes an important point – and one which I have not been as quick to point out in the past as I should have been.  Yes, it can be frustrating when judgments don’t make their way onto Bailii, when Bailii’s functionality is limited – but Bailii is the wrong target for our frustrations.  In fact, without Bailii, the open justice agenda would be absolutely stuffed. 
According to Wagner the Bailii website costs £160,000 a year to run, and according to an FOI request by Mark Goodge last year it received only £35,468 from the Ministry of Justice for its publication work.  This means that Bailii is very dependent on fundraising for its work, and Wagner suggests there is a real risk that Bailii could go under.  I agree with Wagner that this would be a tragedy.  Aside from the (admittedly niche) interests of legal bloggers, Bailii is relied upon by a whole range of people for information about case law that informs their work and lives.  This was abundantly clear from the survey Bailii themselves ran as part of the Family Court Information Pilot, which found the following users:

‘The largest group of users were professionals, 33 from the legal profession, including 19 who identified themselves as practising and 10 academic lawyers, two judges and two magistrates; 28 users from the social welfare field, comprising 12 social workers, five Cafcass social workers, four guardians, two Cafcass guardians, three Cafcass officers, one retired guardian and one expert witness. In addition there were four members of the press, a documentary film maker, a probation officer and 10 members of the public, some of whom who appeared have involvement in a case.’ p20

Some of these we might assume would have access to alternative sources of legal information through expensive subscriptions (although I tend to use Bailii as it is a much faster website than the subscription services, and I don’t have to go through a lengthy log-in every time I’ve stopped working to make a cup of tea…), but others wouldn’t.  It would be a very alarming state of affairs if professionals and the public had limited access to the law that impacts upon their working practices and lives.  It’s also worth noting that despite the success of the Family Courts Information Pilot resting on Bailii hosting an increased volume of judgments, Bailii received no additional funds for its role.
There are other sites of course that host case law.  My favourite among these is Mental Health Law Online, which has a lot of value-added features like indexing by subject, judgment summaries and links to blogs and articles on a particular judgment.  Sometimes (especially for Court of Protection judgments) case law appears on Mental Health Law Online but not on Bailii.  But it’s not as if Bailii is sitting on great piles of judgments and not publishing them – the issue must be at the end of the courts not passing the judgments on.  Furthermore, if you look beneath the surface of a lot of third party websites, they still rely on links to Bailii judgments, meaning that if Bailii went down their utility would decrease as well.  Interestingly, the Ministry of Justice has no idea what proportion of judgments do in fact make their way onto Bailii – which is a shame, as it is hard to know how much of the picture we are missing.
There are many reasons why judgments don’t appear on Bailii, but Bailii shouldn’t be our primary target for this issue.  The problem lies in our courts and in the Ministry of Justice.  We know from the Family Courts Information Pilot that the production and anonymisation of written judgments carries additional costs, costs which the courts may find it harder and harder to meet as they feel the strain of austerity.  We also know that there are issues around the copyright status of judgments which apparently limits what Bailii and other third parties can do with them.  According to the Bar Council, ‘There is no definitive view on whether court judgments are Crown copyright’ and ‘it can be argued that judges act independently of the Crown and that copyright in court judgments rest with individual judges.’  If copyright rests with the Crown, then the judgments can be ‘re-used free of charge and without requiring prior clearance providing the source is acknowledged.’  I am unsure how far this confusion over who copyright rests with is actually impacting upon issues around online publication of written judgments; are there really judges out there who refuse to allow judgments to be published on copyright grounds?  I would be interested to know if that is the case, but I suspect the copyright issue may be obfuscating more intractable problems around resources and judicial culture.
And in the family courts, of course, there are issues around privacy – although these have been explored in the Family Courts Information Pilot and there were very, very few judgments that could not be published for this reason.  Again, I do wonder how far privacy issues may be obscuring the more immediate problem of resources to produce and anonymise judgments.  I notice that one of the reasons Bailii gives for not allowing Google to index and cache judgments relates to privacy

Occasionally it is necessary to remove a judgment from the BAILII database, for example if BAILII has been provided with a copy of a judgment which discloses confidential information such as the name of a child. This is more difficult once the judgment has been indexed by a search engine, and cannot be carried out promptly.

I am aware of a few cases where this has happened.  For instance, the case CX v A Local Authority & Anor [2011] originally carried the name of the local authority on Bailii, but seems to have been subsequently taken down and anonymised.  (As an aside, I can’t actually work out what the legal basis was for anonymising the local authority in this case, as it doesn’t seem to be a case where s12 Administration of Justice Act 1960 applies, and there are no privacy directions printed on the judgment).  In any case, I do find this reason a little bit concerning, as you would hope that judgments are properly checked by the courts to ensure that confidential information is removed before it is placed in the public domain.  Again, this isn’t down to Bailii but the courts.  It does seems odd, however, that Bailii are forced to restrict access to third party search engines and caches because the courts cannot be trusted not to launch confidential information into the public domain!  Imagine if a government department gave that as a reason for restricting search engine access?
In any case, there are many frustrating issues around access to case law in the UK, but without Bailii access would be very limited indeed.  The target for our frustrations lies higher up the chain – we should be asking ourselves why funding for a website that performs such an important service for justice in the UK rests precariously upon donations, and is not better resourced by the Ministry of Justice themselves.  Yes, I think we should also consider whether access to the judgments should be opened up to other third parties as well, but Bailii is a vital safety net that offers the best guarantee of completeness we currently have.  We should ask the Ministry of Justice to consider ways to increase the number of the written judgments, particularly in those courts that hear cases in private, and to provide the appropriate resources to support the judiciary to do this.  And we should be asking whether the courts themselves are taking seriously the project of increasing public access to justice, and reliably passing on judgments to Bailii in a timely (and suitably redacted!) fashion.  And finally, in the meantime, we should all be donating to Bailii.
The government are currently running a consultation on Making Open Data Real – which seems like a good place to air any concerns about the production and publication of written judgments.  And you can donate to Bailii here.

Postscript


According to Lucy Reed (@Familoo) over at Pinktape, Sir Nicholas Wall – president of the Family Division – has been encouraging ‘everyone who sits in the Court of Protection to publish their judgments on BAILII. I acknowledge it involves a great deal of work to correct and anonymise judgments but the benefit to the profession is huge.’ He says:

‘I am a great believer in the court sitting where it can in public. It is not an instinctive reaction from a Family Division Judge or in relation to matters which are essentially private. There is an advantage to the public to see how very difficult and sensitive cases are handled and the care that is gien. It doesn’t mean the parties have to be exposed to the full glare of publicity. I have sat in open court with the parties anonymised where it is a question of life and death. The press are very good at not doorstepping and people do remain anonymous.”’

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