Can transparency be in the limelight? Perhaps not, in scientific terms (or to avoid metaphor mixing), but court transparency is certainly having a moment.
This is partly because of changes to the justice process expedited by COVID-19 and the use of court technology. As this blog has already noted, aspects of the Police, Crime, Sentencing and Courts (PCSC) Bill currently passing through Parliament have a bearing on public access to court hearings, and the Ministry of Justice has recently announced that The National Archives (TNA) will host a new national database for judgments. Further, representatives from HMCTS, MOJ and the Cabinet Office are involved in discussions with civil society to develop a new commitment to open justice in the UK’s next Open Government National Action Plan*.
Related to these developments, two academic papers published earlier this year offer useful insights into court transparency from different perspectives: one considers the implications of publishing employment tribunal judgment data; and the second discusses the state of local court reporting by journalists. Both make suggestions for improving policy in these areas, which those involved in the aforementioned discussions would do well to consider; a brief summary and my initial thoughts on the papers follows.
In their paper published in Legal Studies in June (££ / OA), Zoe Adams, Abi Adams-Prassl and Jeremias Adams-Prassl, describe the availability and nature of employment tribunal judgment data and the extent to which machine-learning technology can be applied to existing datasets. Though first instance employment tribunal judgments (for England, Wales and Scotland) are more extensively published on Gov.uk than for other courts and tribunals (the authors note a ‘veritable treasure trove’ for researchers), judgment publication is not comprehensive, when comparing the officially reported number of disposed cases with published judgments. While calling for transparency around the judgment publication process, and changes to judgment formatting to improve data useability, Adams et al also consider the potential drawbacks to increased visibility of employment tribunal data. This is an important and original contribution to the literature, given that the practical implications of open justice data are often neglected in both policy and academic discussions, with an uncritical acceptance of the English approach to open justice (and the use of parties’ real names in the published decisions of many courts and tribunals – the family court being an obvious exception).
Noting the constitutional imperative and benefits of employment tribunal judgment publication, Adams et al have several misgivings about wholly open tribunal data, drawing attention to the potential implications of dissemination of employment tribunal judgments as open data, and the application of machine learning techniques. These include the potential for: blacklisting of litigants by future employers; the use of data by employers to put ‘undue’ pressure on employees to settle or to facilitate evasion from legal obligations; and the creation of hiring algorithms that could discriminate against those predicted as likely future litigants. In response, they consider various safeguards for data publication: through the Blacklisting Regulations 2010; anonymity orders; data protection rules; and equality law but ultimately conclude that none of these provide adequate protection of access to justice and equality. As a result, they propose an approach of systematic anonymisation of published data, which in their view, would not be contrary to the principle of open justice. Access to personalised data could be regulated ‘in a way that better balances the requirements of data protection and open justice, and to do this entirely independently from the online repository of anonymised judgments’. However, this alone would not offer sufficient protection, and the final part of their conclusion proposes steps to expand the scope of equality law, and algorithmic transparency via regulation of artificial intelligence.
It will be interesting to see how much traction their proposal gains in academic and policy work; systematic anonymisation of public judgments will be a hard one to sell to the media representative organisations, for example, which are likely to resist any move towards a more privacy-sensitive approach. In a thoughtful response to the article, the legal correspondent Joshua Rozenberg notes that:
Any move to limit the publication of employment tribunal judgments would be seen as the thin end of the wedge — with consequences for other courts and tribunals. While the authors deserve credit for drawing attention to a significant problem, there is a distinct risk that their preferred cure will do more harm than the disease.
Turning to the media, then, what of its role, in the reporting and publicity of court proceedings? A paper by Richard Jones published in Journalism Practice (££) in April, shares the findings of his empirical research on the practice of local and national court reporting. Jones, a journalist and academic researcher, interviewed 22 court reporters in 2017 about their experiences and views of the court reporting ‘beat’. Their comments – mainly focussed on the criminal court – reveal useful insights into the practices, motivations, and concerns of working reporters, and the effects of reduced investment in this activity by the large regional media groups. Like other recent studies in this area, Jones paints a picture of diminishing coverage and resource for this work. Though his central argument emphasises the democratic and societal importance of this work, he recognises the use of court material for ‘entertaining slices of local life’ as well as ‘important’ stories that scrutinise those in power. And while accepting that the commercial regional media groups are responsible for under-investment in this area, he argues that public funding should be used to further support these news organisations, by extension to the existing Local Democracy Reporters scheme, for instance.
The paper offers some excellent detail. For example, when describing the pressures on these specialist court reporters (under-resourced and time poor) to cover the courts, he explains the practice of ‘snatch’ photography: with reporters expected to capture pictures of defendants on a public street on their phones, rather than using an in-house photographer. Here, Jones considers the ethical position and lack of regulatory guidance, and the vulnerable position in which it puts the reporter. Overall, the paper offers a valuable contribution to the literature, particularly because of the lack of attention to court reporting in academic studies of journalism (and in policy exercises such as the Cairncross Review in 2019). There is scope, however, for further development of the complex themes Jones touches on but does not fully expand within this paper: the perceptions and rationales for open justice; the ethical position of the court reporter and the difference between public interest (or public benefit) reporting, and reporting for entertainment; and the case for and against further public subsidy of (profit-generating) commercial regional media, and what alternative models might look like.
*Members of the Transparency Project are participating in this process; those interested in joining discussions can sign up to the open justice thematic group here.
Dr Judith Townend is a socio-legal researcher and senior lecturer in media and information law at the University of Sussex, where her research focuses on the protection and regulation of public interest journalism and freedom of expression. She is a member of the Transparency Project core group, among other roles.
Feature Pic: Seeing eye by Valerie Everett on Flickr with thanks
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