What’s the collective noun for browser tabs? I ended my year with a lot – a flock? A bevy? – open, mainly relating to one of my main preoccupations, justice system data (i.e. information generated by the process of justice). I’m somewhat nervously returning to them now. They reveal a mixed story for 2021: some highlights in innovative data use, promises for future development, but also some real lows, in terms of data paucity and quality. Here’s a run-down of some recent developments, and a look forward to what this new year might bring.
Open Government Partnership: somewhat delayed, the Government (with responsibility returning to the Cabinet Office from DCMS) initiated its process for development of the UK’s fifth National Action Plan for open government (NAP 5), which is supposed to cover the years 2021-23. Essentially, it’s a series of biennial commitments developed in conjunction with members of civil society under the umbrella of the Open Government Network (the last one is here). One of the commitments for the next plan relates to open justice, and you can read the last published draft here; that version covers issues such as data governance, court user data, and the collection / supply of other types of data (e.g. sentencing remarks, judgments, transcripts) and also user engagement mechanisms. TP will report any updates in due course.
Justice select committee open justice inquiry: Pleasingly, for those of us concerned with transparency and justice data the House of Commons select committee on justice opened a short inquiry on open justice and court reporting.
I was among those invited to give evidence in the first session (alongside two journalists), and you can read the transcript here. It has published numerous written submissions, from a range of organisations, including the Transparency Project in two instalments here and here, Transform Justice, Spotlight on Corruption and The Legal Education Foundation (TLEF) (and my own individual submission is here). These submissions, as well as the oral hearing, draw attention to data gaps and practical issues with observing and reporting court proceedings.
Lord Burnett acknowledged that public access to court hearings during the pandemic had not been perfect and that no formal complaints mechanism existed, but was of the view that remote technology had improved journalistic access, asserting that remote technology has ‘facilitated much greater press access than would otherwise be the case, so nothing has changed’.
Later in the session, however, he did acknowledge that ‘None of us [judges] is likely to be remotely sanguine about opening it up to everybody, because you lose control completely’. The question of wider public access was ‘complicated’. The Transparency Review in the Family Division also got a fleeting mention for the work underway there.
The session with the Secretary of State Dominic Raab did not deal so directly with journalistic access issues and discussion on data centred on a criminal justice ‘scorecard’ initiative including data on rape cases, nationally and locally.
The committee’s open justice inquiry resumes on January 11 with evidence being taken from Sir Andrew MacFarlane, President of the Family Division, John Battle, ITN / Media Lawyers Association; and Dr Natalie Byrom, Legal Education Foundation.
National Archive judgments: One major development of the year has been an announcement by the Ministry of Justice that it will terminate its contract with BAILII in April 2022 and begin publishing a repository of judgments through The National Archives (TNA). TNA Digital Director John Sheridan told Law Society Gazette he was confident they would make the April deadline for the first batch of judgments – almost 47,366 judgments from senior courts since 2003. Questions remain, about the scope of the future repository, and the acquisition of judgments held by other publishers, including more historical cases. Nick Holmes considers the issues here in the INFL, with an overall positive conclusion for the future of judgment publication. Legal commentator Joshua Rozenberg muses on what will happen to judgments deemed ‘insignificant’.
Remote hearings research: This has been ably distilled by TP’s Paul Magrath here, in a post setting out the findings of an evaluation of remote justice by HMCTS. It surveys a wide range of legal representatives and members of the judiciary, although notably few ‘observers’ – it is heartening, however, that observers are taken to include academics and members of the ‘third sector’ as well as journalists. Disappointingly and somewhat bafflingly, HMCTS is no longer publishing data on the method of court hearings. Additionally, the report does not include case outcomes evidence, which – as Natalie Byrom has observed – limits what can be said about the success of remote justice.
Transparency Review in the family court: A real high of the year: an overdue and much-needed review of transparency initiatives in the Family Division, drawing on – among others – written submissions and the oral evidence of the Transparency Project. One happy outcome has been the establishment of the Transparency Implementation Group, with representation from three of TP’s members. As well as reducing the barriers to reporting and observing the family court, the review promises to improve data collection and dissemination. The first minutes of the TIG can be read here. Read TP member Louise Tickle’s assessment of the Review’s implications here.
Data update from HMCTS: More broadly, HMCTS has updated on its data work across the courts estate, charting the progress made in response to recommendations made in the Byrom / TLEF Digital Justice report of 2019. This update was published alongside a new data strategy. TLEF welcomed the update, and reiterated the importance of improving data infrastructure, data collection on court functioning and court user experience, public acceptability and governance; and urges HMCTS to use additional funding granted in the Treasury Spending Review ‘to set out a clear plan with measurable objectives to tackle the current data deficit across our justice system’. Joshua Rozenberg critiques the strategy in a blog post here, drawing attention to a lack of detailed timetable for delivery of milestones, and arguing that it indicates a weakening of the data governance model (still in ‘shadow’ mode).
Related to data work, current/recent vacancies within the civil service include: Director of Digital (MOJ); Public User Engagement Lead (HMCTS); Deputy Director Common Digital Capabilities, CFT Programme (HMCTS); and Head of Judicial Education and Digital Training (Judicial College).
Public Accounts Committee inquiries / reports: As Rozenberg also notes, the HMCTS report came a day late to be referenced in submissions to the House of Commons Public Accounts select committee for its inquiry into the backlog in criminal courts. The written evidence can be read here, and the one oral session transcript is here. Also of relevance is the PAC’s report on digital change in December 2021, which identifies issues more generally for government bodies, highlighting its concerns about the ‘number of complex, large-scale digital programmes we continue to see fail’, contending that the Government ‘faces significant long-term barriers to successful digital change that will take much time, effort, and money to overcome’.
ADR UK: 2021 saw the roll-out of new ADR UK initiatives; it’s an initiative funded by UKRI / ESRC and its Data First programme, led by the MOJ, links administrative datasets in crime and justice, within and outside the justice system. The first funded projects (one set linking education and justice datasets, and another crown and magistrates’ court datasets) can be viewed here. Another funding call is set to be launched in 2022, for applications to conduct research using a new linked dataset consisting of the Ministry of Justice’s (MoJ) Data First family court data and Cafcass’ data. The Cafcass linked dataset, based on an agreement between SAIL databank, MOJ and Cafcass, contains information on public law and adoption cases, marriage and divorce characteristics, and family law applications and legal orders. It’s a programme of work worth watching very closely, in terms of what and how data is being used, and how the techniques might be applied to other justice datasets.
To counter some of the bleaker notes of this round up, here are a couple of data justice gold stars for really innovative and exciting projects, at the latter part of the year:
*TBIJ ‘Closed Doors’ investigation into possession court hearings: In summer 2021, The Bureau of Investigative Journalism (TBIJ), funded by TLEF, commissioned 20 reporters across England and Wales to log the details of hearings in 30 different possession courts, totalling 683 hearings in two months. As well as exposing worrying issues for public observers trying to get access to these courts, the project has published its resulting dataset via an online tool and Google Documents (explainer / dataset), as well as in a range of stories.
*Cart judicial reviews research: It’s rare – perhaps even unprecedented – to see such systematic data on court hearings shared by journalists in England and Wales (please add further examples in the comments or contact me, if you know them). Similarly, systematic data analysis of court decisions is still fairly unusual in legal academic publications, partly owing to the messy state of justice system data. Dr Mikołaj Barczentewicz – a legal academic who can code –shows what can be done, however, in empirical research in the Modern Law Review and Judicial Review.
His focus is Cart judicial reviews (judicial reviews of Upper Tribunal decisions to refuse permission to appeal a decision of the First-tier Tribunal, and subject to government interest and reforms). He explains that these are the largest single group of claims for judicial review in the High Court though they rarely result in a High Court judgment. In lieu of such judgments, Barczentewicz looked at Upper Tribunal decisions – mainly unreported – following successful Cart claims. Employing both qualitative and quantitative methods, he was able to identify the characteristics of successful challenges, providing an analysis which is directly relevant to Government policy in this area – the proposal to discontinue Cart claims made by the Independent Review of Administrative Law. Additionally, he considers the potential for using better data and computational methods in law in law and legal policy. It’s an excellent approach to research to consider and potentially adopt in other areas.
What does 2022 bring?
A few projects/reports to flag as expected during the year ahead.
Mishcon de Reya / York Judicial Review project: Mishcon de Reya’s Data Science department and the York Law School of The University of York partnership on how the use of machine learning can improve the availability of evidence relating to judicial review decisions. Full findings of the first phase of exploratory research will be published in 2022. Background posts here and here.
Systemic Justice: a new European initiative led by human rights lawyer Nani Jansen Reventlow (formerly of the Digital Freedom Fund) – a new NGO engaging in strategic litigation to ‘help dismantle the power structures that underpin and fuel racial, social, and economic injustice’. You can sign up for the newsletter here.
FREE PACER: Although many UK-based researchers/activists/academics/lawyers look to the U.S. federal judiciary’s court record system PACER with envy, it has its own access issues. In December, the Senate Judiciary Committee voted to advance a bill to remove the fees for the public to download filings. A development to watch.
Parliamentary/Government reports: And, returning to the developments discussed above: we can expect to see the House of Commons justice committee report from its short inquiry on open justice, the House of Commons Public Accounts Committee report on the backlog in criminal courts, and news of the Open Government Partnership fifth National Action Plan.
The bigger picture: Of course, justice system data policy sits in a far broader (post-Brexit) data and media policy context: on AI regulation and research, data protection and security, online safety/harms, Freedom of Information and Official Secrets / Counter State Threats, and, critically, the Government’s moves to reform the Human Rights Act 1998. In this context, there are grave threats to the future of data transparency and governance.
The backlog is not a reason to delay investing in data – it is a reason to accelerate progress. Investing in data is not a distraction from the crisis facing the courts – it is central to solving it.
Hear hear, and happy new year.
Dr Judith Townend(@jtownend) is senior lecturer in media and information law at the University of Sussex, and a core member of the Transparency Project Group. She was commissioned by the Legal Education Foundation in 2020-21 to undertake comparative work on justice system data in three common law countries.
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