This weekend a judgment from care proceedings was published on BAILII, late on Friday night. This is not unusual.
But what was unusual was the fact that it was a judgment relating to a fact finding hearing in respect of sexual abuse to a young child, in which all the parties, including the child and both parents and the intervenor (against whom allegations were made) and the local authority were named in full. All of the detail of the allegations and the medical evidence was set out in full and graphic detail.
Several lawyers realised immediately that this must be a grave error as indeed it was. But the judgment remained publicly available for almost 24 hours. There was limited tweeting about it with a link to the judgment, and it appears all of that has now gone.
The Transparency Project immediately notified BAILII and attempted to make contact with those involved in the case by contacting those counsel whose email address we could identify from the judgment. They soon confirmed the awful truth – that the child had been publicly identified.
Although we now know that efforts were being made by the judge and court staff to get BAILII to take the judgment down over the course of Saturday it is in fact only because an eagle eyed lawyer who happened to have a contact at BAILII was able to ring the contact on his personal phone. WIthout that stroke of luck the judgment would still probably be up until Monday, when the poor chap at BAILII arrived to find a handful of frantic emails all on the same topic.
We understand from those involved in the case that an anonymised version of the judgment had been prepared and that through human error at the court the wrong version was sent to BAILII who, entirely blamelessly, published it as requested.
This is no sort of a system. In this instance – probably – no actual harm has been done. Fortunately BAILII do not allow google to crawl their site so it won’t show up in google and will in all probability not exist on the internet at all (if some other site such as Family Law had picked it up this might not be the case). Few will have seen the judgment, and most of those will probably be professionals who will not disclose it further. But if that is so (and we don’t really know that it is) that is by luck – and a child’s lifelong Article 8 rights to privacy should not be down to luck.
Whilst guidance that promotes the greater transparency of proceedings of this sort in conjunction with the protection of the privacy of those involved is to be welcomed – it is reckless to allow the guidance to operate on an ad hoc basis in the absence of robust operational procedures laid down by HMCTS / the judiciary to ensure that privacy is maintained – along with the staff resource and time to implement them. It would be easy to say that the judge in question should have checked which version of the judgment was sent to BAILII, but that would be to neglect the reality which is the significant workload of the judges – who struggle to find time to implement the guidance at all and who either (in my experience) ignore the guidance entirely because it is too time consuming or alternatively have backlogs of judgments that they have no time to properly anonymise or otherwise deal with.
And there can be no passing of the buck to BAILII either. They are a small charity with very limited funding and a small staff, who publish what they are asked by judges to publish and who do not have 24:7 cover. One might argue that the function performed by BAILII is one which should be properly resourced by central government and that there should be a unit at some stage in the process whose role was to anonymise, check and double check prior to publication – and staffed to deal on an emergency basis with enquiries and things that go wrong.
We wonder whether HMCTS will notify the family and their legal representatives of this potentially actionable breach of privacy in order that they can seek legal advice and if appropriate make a claim or complaint?
It is frustrating that some 2 years after implementation of the President’s Transparency Guidance this issue has not been tackled. Failures of this sort set back the debate about how we can properly progress transparency – the project would like more judgments to be published where that is appropriate, but questions how that can safely happen without proper resource and focus on operational issues. We welcome moves by Dr Brophy to draw up guidance on anonymisation of judgments but observe that any guidance will need either judicial or HMCTS human resource and training if it is to be wholly effective.
For obvious reasons we are giving very limited information about the case. We will not publish any comment which contains further details of the case.
The Transparency Project will continue to notify judges and BAILII of judgments which appear to have been published in error or where identifying information appears to have been included in a judgment. Whilst we have carried out this role on a number of occasions now (although this is the worst to date) we cannot and do not aim to monitor all published judgments and would encourage better scrutiny of them prior to publication.
Update 18/04/16 : There has been some discussion on twitter about whether BAILII might be at fault here or may have committed a data breach. Bailii have today tweeted a remind that their role is to simply publish what is given to them by the courts / judiciary in the expectation that any anonymisation will have been carried out by them already. See below :