In a recent speech, Lord Neuberger, the President of the Supreme Court, spoke of the importance of open justice. “In its most basic form,” he said, “it means that court hearings take place in public and judges’ decisions are available to the public.”
As Julie D has explained elsewhere on this blog (Why is the Family Court an exception to the principle of open justice?) there are certain kinds of case which for good reasons may not take place in public. But, even in those cases, the judges’ decisions may still be available to the public, in a form designed to protect the identity of the parties.
In all other cases, judgments should be freely available for the simple reason that they are public documents and the public should have access to them – just as they have access to the other principal source of primary law, the statute book (via www.legislation.gov.uk).
Judges are obliged to give reasons for their decisions, so the parties involved in the case and the wider general public can know how the judge arrived at his or her decision. They can check to see that the judge has taken the right matters into account, and has not considered anything irrelevant. Moreover, if one of the parties wishes to appeal the decision to a higher court, that court will need to see the judgment and decide whether the judge got the answer right or wrong.
For all these reasons, it is both necessary and convenient that there should be a central and accessible repository of judgments given in open court. One solution might be for the Government – by way of the Ministry of Justice, which is the department in charge of the courts and all the judges who work in them – to keep a store of all the judgments.
But there is a problem with that idea. As Lord Neuberger explained in the same speech, another essential feature of the rule of law is the independence of the judiciary. “A judge”, he said, “has no more important function than to protect citizens against abuses of power of an increasingly mighty executive branch of government.”
Under the constitutional doctrine of the “separation of powers”, the Judiciary must be kept separate from the Legislature (Parliament) and from the executive branch of the Government (Cabinet, Civil Service etc). For the same reason it is important that their judgments, some of which may be critical of the Government, should not be under the control of the Government.
In any case, there is no need for the Government to manage a central repository of judgments, because it is already being done, cheaply and efficiently, by a charity called BAILII – the British and Irish Legal Information Institute. For the last 15 years or so, this website has been hosting a growing collection of all decisions of the senior British courts, at High Court level or above. Judges’ clerks send an electronic copy of the judgment to BAILII on the day judgment is given in court, and within a short time it appears on the BAILII website.
If the case attracts an online news report or comment, the reporter can include a link direct to the full judgment on BAILII. Bloggers invariably make the most of this facility, but traditional news media sites are less adept at doing so. Or perhaps they are reluctant to allow their readers to see the raw source material from which they may have spun something bearing only a passing resemblance to the facts. As a former editor of the Economist once remarked, the job of journalists is to “simplify, then exaggerate”. Those covering family law stories for the tabloid press sometimes go even further: moving from exaggeration to hyperbole, and thence to sheer hysteria. It’s not a pretty sight. (And it’s something the Transparency Project is here to correct.)
Cases which establish a legal precedent, as Julie explained, are written up in the official Law Reports, published by ICLR, or by one of the specialist series, such as the Family Law Reports, published by Jordans. These are primarily designed to be used by lawyers in advising and acting for clients, and for students in learning about the development of the law. They include additional editorial content, such as a summary of the decision (known as a headnote), lists of (and links to) cases cited, and sometimes a summary of the argument as well. Because they are written up by professionally qualified reporters and editors, these services cost money to maintain and charge a subscription to users. But BAILII is absolutely free, and although it only provides the judgment in the case, it provides a vast number of cases, many of which will never be turned into law reports.
In theory, almost any judgment given in the Family Court, Employment Appeal Tribunal, one of the divisions of the High Court, the Court of Appeal or the Supreme Court, together with those given by the Court of Justice of the European Union (in Luxembourg) and the European Court of Human Rights (in Strasbourg), may be found on BAILII. Cases where the judgment is not “handed down” after being written out in full, but which need to be transcribed from the judge’s spoken words in court, may not appear on BAILII for some time, or at all. Nor will cases where, for some justifiable reason, the court has chosen not to make the case available to the public. Subject to that, it is the most comprehensive collection of judgments available to free public scrutiny.
One important point needs to be stressed. BAILII is entirely independent from the Government. It is a charity, managed by trustees, and funded entirely by donations and sponsorship. It deserves the support of all who use it, including those of us in the blogging community who, perhaps more than anyone, rely on it as a source of convenient links to primary content. Let’s not forget that.