Who is responsible for publishing the official approved version of judgments of the courts? Where should we look to find the latest, in some cases corrected, version of a court judgment? These are not new questions, but the sudden swerve to virtual justice has thrown them into new focus.
Last week the Transparency Project Blog published a post by Jack Harrison commenting on the case of P (A Child: Remote Hearing) (Rev 3)  EWFC 32. The judgment was by then in its third revision, hence the suffix (rev 3) after the case name, as published on BAILII. But earlier in the day, when BAILII was still displaying an earlier (rev 2) version, that new version was first made publicly available by way of a download link posted on Twitter by the Family Law Bar Association, who tweeted:
Now the FLBA is a fantastic organisation who have supported the Transparency Project and this is not a criticism of them. They were simply keeping their followers fully up to date with recent legal developments, including the latest version of an important judgment of the President of the Family Division, which they were in a position to publicise.
It’s just that, as our chair Lucy Reed pointed out, they are not an official channel for the publication of judgments of the courts and it’s very important that there should be at least one such an official channel, and that the judiciary and the courts should ensure that they send it all the judgments that they publish. (It also looks odd that the FLBA appear to be passing on an official instruction to “discard previous copy” and to be managing the onward distribution to BAILII.)
As it happens, there is more than one “official” channel of judgment publication. But BAILII (the British and Irish Legal Information Institute) is the main one, and as we explained in an earlier post, the Ministry of Justice has officially designated it as the source for anyone who wants to reuse or republish the judgment under the terms of the Open Government Licence. We might challenge the wisdom of that, but that is the current position. (We might add that if that is the MoJ’s view, it might be nice for them to put a bit more of their money where their mouth is.)
You would expect the courts to publish their own judgments, as they do in many other jurisdictions, usually on a comprehensive basis (ie they publish every judgment given in writing in open court). That is the practice in the UK Supreme Court and the Privy Council (which hears appeals from a number of overseas and former colonial territories), who also livestream the hearings (yes, even remote ones) and you can watch them on catchup. (So big transparency positives there.)
The position in the other courts and tribunals is not so clear. The Judicial Office manage the Courts and Tribunals Judiciary website, which is supposed to publish all contempt of court rulings, all anonymisation rulings (decisions not to disclose the identity of parties in a case) plus those judgments which are considered (either by judges or by the judicial press office) to be of general public or media interest. So in a sense the newsworthy cases, but not the everyday cases that form the bulk of the courts’ business. But for judgments of tribunals, such as the Employment Appeal Tribunal, or the Immigration and Asylum Chamber (formerly Immigration Appeal Tribunal) or one of the other Upper Tribunals dealing with a range of regulatory matters, the judgments can be found, if at all, on their individual pages on the massive Gov.uk website.
All these are all what you might call ‘official channels of distribution’ for judgments. But most of them will also be collected and published on BAILII.
Judgments are also circulated to ICLR (the Incorporated Council of Law Reporting for England and Wales) and commercial legal publishers such as LexisNexis, Westlaw, and others. Although ICLR publish the official Law Reports and other series of case reports, they also publish judgment transcripts on their site, and for those they don’t publish they will usually have indexed information on the case with a link to BAILII, the Judiciary or another official source, such as Curia (for the European Court of Justice) or HUDOC for the European Court of Human Rights.
Some judgments are also circulated to the media, and although they may not link to them when they write a report about the case, they will use the judgment as source material for interesting facts and select significant passages to quote.
So there are, in effect, myriad routes for the judgment or information about the judgment to reach a reader. But it’s important that the judgment relied upon for any report of a case should be the official version, and that is why we say it is important that there should be an official source or channel of distribution, in the same way as there is for legislation, at www.legislation.gov.uk (which is managed online by the National Archives).
According to the MOJ, the official source appears to be BAILII. It is certainly the one favoured by the judiciary, one of whose members had a major hand in founding in 20 years ago, and most of whose members routinely send their judgments there.
Moreover, it is with the judiciary that the primary responsibility rests. Judges are responsible for giving their reasons in a case – a duty owed initially to the parties, who need to know not only what decision the court has made, but why; and then to the public, on whose behalf the judges administer justice as a public good; and finally to posterity, by putting it all on the record, which includes in appropriate cases laying down a precedent (to formulate or clarify a legal principle critical to the case) or at the very least making it possible for researchers to see what happened.
We have records of cases decided in the past going back to the 12th century. Like all historical records, they are haphazard, incomplete, subject to loss and destruction. But like much else in public life, documentary records of the courts’ activities are worth preserving for their own sake, as something of interest to future historians. Quite apart from that, they are of interest, or should be of interest, to policy makers of the present day. And in the case of family judgments, which often involve children and their uncertain or reorganised futures, it would be nice for them to be able to come back later, when grown up, and find out why.
The giving of reasons, obviously, promotes open justice and transparency: justice is not only done but it is manifestly seen to be done. (And if it isn’t done, it is much easier to see what went wrong.)
So those are some of the reasons why it’s important to give reasons for judgment in cases, and to make sure there is a reliable channel for their distribution and an authentic source to find them later. But as we explain in chapter 4 of our book, Transparency in the Family Courts: Publicity and Privacy in Practice (Doughty, Reed & Magrath, 2018) problems can occur when the wrong version of a judgment is accidentally circulated, or inadequately anonymised, or for some other reason the judge needs to change it. Broadly speaking, the ultimate responsibility for making any alteration rests with the judge, and it is for the judge to decide whether a case is to be removed from BAILII and/or reissued in a new version. The judge may rely on a clerk or the court transcribers or some other intermediary to carry out the change, but the decision is theirs.
But what if the delivery is, like the hearing of the case itself, a virtual event? Under the current Covid-19 arrangements, judgments are not being handed down or delivered in court as they normally would be. They are being distributed to the parties and to BAILII and the other channels of distribution by email, with the time of delivery being deemed to be a particular date. Accordingly when they appear on BAILII, it is usually with a statement on the front page saying:
“COVID-19: This judgment was handed down remotely by circulation to the parties’ representatives by email. It will also be released for publication on BAILII and other websites. The date and time for hand-down is deemed to be 9.45 a.m. on 27 April 2020.”
By replacing the unities of time and place in a physical courtroom with a deemed intersection of the time-space continuum in the virtual universe, you are adding an element of uncertainty to the process of distribution. At what point can you say with certainty that judgment has been delivered? These are the sorts of problems lawyers think about when discussing whether a document sent by email has been “served” on another party. And if the judgment, once distributed, is corrected and redistributed, at what point is the “authentic” version available?
The judgment in P (A Child: Remote Hearing)  EWFC 32 appears to have been given extempore, i.e. orally by the judge at the end of the remote hearing, rather than being reserved to be written up and given at a later date. It is described as a “computer-aided transcript prepared from the stenographic notes of Opus 2 International Ltd” (official court transcribers). Such judgments are usually submitted to the judge for approval before circulation and it is not unusual, during the process of transcription from recordings or shorthand notes, to encounter the occasional error or mis-heard word. In addition, this case required anonymisation to protect the identity of the child concerned. All of this may help explain why the copy released for publication needed to be corrected – and distributed – more than once.
This post originally appeared on the Transparency Project blog and is reproduced with permission and thanks