I know I’m the chair of the Transparency Project so I’m supposed to be all ‘More transparency! Raahhhh!’. At least that is what people assume, as if transparency and privacy are mutually exclusive and as if we have to pick sides. I wish it were that simple….
Last week a shocking judgment was published. It was unassumingly entitled ‘Father v Mother (Fact Finding Hearing)‘. The judgment relates to serious findings of physical and sexual abuse and coercive and controlling behaviour by a father towards a mother. In the course of the judge’s explanation of the evidence she had heard and read the Judge set out in graphic detail the father’s behaviour towards the mother, including the full text of a number of highly sexually upsetting text messages he had sent to or about her, including references to intimate medical issues. The findings included behaviour that would probably entitle the mother to lifetime anonymity under the Sexual Offences (Amendment) Act 1992. The judgment also contained a number of incidental (but relevant) pieces of information that the Transparency Project team thought might well contribute to the identification of the parents within their local community and networks. I’m not going to repeat those graphic details or spell out what we thought might well render the parents identifiable, because I don’t want to compound the issue. However, what I can say is that there has been considerable discussion about this judgment amongst the entire Transparency Project team which produced a significant degree of consensus and unease. We all had a similar response to the contents of the judgment – we were all dismayed both at the extremely unpleasant and shocking detail of the father’s behaviour and the amount which had been left in prior to publication. We have discussed the importance of having enough detail to be able to properly understand the nature, impact and gravity of domestic abuse – particularly the more subtle forms of abusive behaviour that leave no physical injuries – and the risk that if too much is removed or replaced with euphemistic summaries then the significance of serious findings can be bleached out, and the justification for them being made lost. One way or another however this judgment stood out for all of us, and left us all pretty uncomfortable. That is the case notwithstanding that a number of us are in practice and as such are pretty seasoned readers of the grim and the graphic. For us, the combination of very graphic intimate detail along with what seemed to us an obvious risk of jigsaw identification was what really felt uncomfortable – made worse by the unanswered question of what the victim of the abuse being described felt about it all.
The judge in this case was a Deputy District Judge. It is vanishingly rare for Deputy District Judges to publish their judgments – I can’t find any other judgment published by the same judge, which is not a surprise. Although the theoretical starting point for judgments arising from ‘a substantial contested fact-finding hearing at which serious allegations, for example allegations of significant physical, emotional or sexual harm, have been determined’ is that they are supposed to be published according to Transparency guidance issued in 2014, they in fact aren’t published very often. That guidance doesn’t directly apply to judges of District Judge level, but as a general rule it’s great when District Judges and DDJs do publish because we can see the workings of another tier of the justice system – and District judges deal with a large proportion of the work of the Family Court, so their judgments are likely to be more representative than judgments from more senior judges.
To be clear, I think is really important that judgments arising from fact finding hearings and from all tiers of judge are published as often as possible. I also think it is important that they are not sanitised to the point where it is difficult to understand the nature and gravity of the behaviour in question. But do I think that means everything has to go in and that every judgment has to be published? No.
I fretted on and off about that judgment all weekend. I wondered if there could have been a mistake, increasingly I wondered if this judgment could have been published intentionally at all. Although it was anonymised, it contained no rubric prohibiting the identification of the parties by any reader. It contained no explanation of the basis upon which the judgment had been published or the parties positions (‘I’m publishing this judgment because…’ etc). The only redaction appears to be the removal of the child’s date of birth and the actual names of the parties. And moreover the ‘judgment’ seemed in places to be in note form – it read to me as if it was the judge’s notes made in preparation for a judgment, with short prompts on points to be expanded and delivered orally as the judgment unfolded. I began to wonder if the wrong version of the judgment or the wrong document had been published (this is not hypothetical and it is not paranoia – at TP we regularly flag apparent mistakes to judges when we see judgments that look wrong and in one case where an obviously sensitive judgment contained full names – we received the explanation that the wrong version of the document had been sent to Bailii. For details of the sorts of errors we have identified and flagged see paras 92-106 of our evidence to the Transparency Review here).
I began to wonder too about the process by which this judgment had been published. Whose idea was it? Did the DDJ suggest it? One of the parties? Their lawyer? Had the parties been consulted? Did they object? Did they make representations about anonymisation / redaction? Were their objections or suggestions taken heed of? Who did the anonymisation? Who checked it? Did anyone check it? We don’t know the answers to any of these questions.
Earlier this week I emailed the court asking for a query to be raised with the judge about whether the publication of this document was intentional. Within an hour it was gone (we also notified the court it had been republished on Westlaw, where it still remains, fortunately behind a paywall). In the course of responding to our query the court cc’d us into an email which contained the name of the mother (which of course we will not share), which is of further concern, and is a serious data protection breach. Additionally, by this email the court purported to instruct us (they seemed to have confused us with Bailii) to remove the judgment, on the basis only of the parties’ request. The removal of a judgment from Bailii is a judicial rather than an administrative decision or a decision for the parties.
I don’t mention these points to criticise the individual staff member in question – frankly it was dealt with admirably quickly, and we know that court staff are under huge pressure – but it illustrates this issue : if the removal of a judgment is dealt with in such an apparently ad hoc way, how is the publication of them being dealt with? It demonstrates the complete absence of any system.
Thinking logically about the publication of this judgment the possibilities are probably as follows :
- the judgment was published at the instigation of the judge or (one of) the parties and with their agreement;
- the judgment was published at the instigation of the judge or (one of) the parties notwithstanding some objection from the mother or father or both. If this was the scenario the judgment should have explained the rationale for publication;
- the judgment was published without the knowledge or consent of the parties;
- the wrong version was published and we were meant to get a more heavily redacted version – or perhaps a transcript rather than a note of judgment.
The fact that our enquiry seemed to prompt a take down is probably most consistent with the last of those, or with someone giving further thought to the matter as a result of our email. Either is a worry.
In the first scenario it would have been preferable for the judgment to explicitly say, in a line or two, that this had been a considered decision and all agreed. If the mother in this case was content for the very intimate information about her to be published I would be surprised, but would not object to publication. However, either that was not the case, or someone has changed their mind. If they have changed their mind – why? Because they hadn’t thought about it properly before agreeing / sending? Because they hadn’t properly communicated with the client whose intimate affairs are described in the judgment before agreeing on their behalf? There really is no excuse for publishing (or agreeing to publication) without a proper evaluation of the need to anonymise or redact first.
In the second scenario one can see any objection from the father being legitimately overridden, but it is a struggle to understand how one could justify the publication – without redaction – of the very intimate, descriptive and specific information in this judgment. Even if it was necessary to include one illustrative example of the frankly vile text messages written by the father, it should have been possible to summarise the gist or nature of the rest. And much of the other potentially identifying information could have been easily rephrased so as to avoid narrowing the pool.
And the third scenario? Well, I don’t know how this could have happened, but if it did it is of huge concern. It could be a result of thoughtlessness, human error, or miscommunication – by judge, barrister, court staff or solicitor. There is very clear guidance from 2014 and 2018 about anonymisation of judgments, and Dr Julia Brophy (and others) recently published a report on such issues, which we wrote about here. We published a guidance note to help with good anonymisation / publication decisions here. There is ALWAYS a balance to be struck – and the parties views and input (including the child where old enough) will be relevant to any decision.
Finally, the wrong judgment scenario. Human error does happen – and it is precisely because it happens, and we have seen it happen so regularly with the publication of family court judgments that we have called for the development of proper processes of checks, and creation of an anonymisation unit to support that work in order to minimise such problems (you can read about that idea in our evidence to the Transparency Review here (pa 205-215), also echoed by Sir James Munby here). We fully acknowledge the pressures that lawyers, judges and court staff are working under – they need to be supported to do this work properly.
Pulling against the wrong document hypothesis however is the fact that someone has taken the trouble to give the case the anonymised title ‘Father v Mother (Fact Finding Hearing)‘ and to replace the child’s date of birth with a series of XXXs. That makes it look like there were attempts to anonymise and redact but that they were cursory, incomplete and frankly inadequate. On one level the idea that someone thought this was ok is perhaps the most worrying of all the scenarios we can think of to explain how we got here.
Of course, what I’ve worked through above is no more than speculation, doing the best I can with logic and limited information. There may be a number of other explanations that I haven’t thought of – or perhaps combinations of different factors. But for me, in this particular case (which it’s hard to convey without causing further possibly unwarranted intrusion or distress), I am uncomfortable with any other scenario than one in which all parties were consulted and advised, and the mother in particular gave her informed consent to the specifics of publication. We have seen one judgment this month that provides a stark reminder to judges of the potential consequences of judges breaching the Article 8 rights of individuals by distribution of judgments, and it seems obvious to us that judges should be giving advance warning to parties if they intend to share the details of judgments of this sort so that they can make representations if they wish in advance of publication, both about publication and appropriate redaction / anonymisation.
A lot of energy is devoted to hand wringing about the risks associated with the media reporting things they shouldn’t and invading people’s privacy. As far as I can see the media have sensibly steered clear of reporting this judgment, perhaps realising that it might well lead to difficulties or embarrassment if they didn’t. We had refrained from writing about the case on the Transparency Project blog until we either had confirmation the judgment publication was intentional or it had been removed. The surprising truth is that we see far more problems properly protecting the identity and intimate details of the parties in family proceedings emanating from the court than we do from the media. Something about this is very topsy turvy.
We think this is important. We worry both about the rights and interests of those involved in cases where anonymisation goes wrong or is done badly, and about such matters setting back the progress of transparency that is necessary for the wider benefit of litigants and the public. It is in all our interests to get this right, and that will involve asking hard questions.
We would like to be able to establish what happened here. We have requested a brief explanation of what happened. Unusually in our experience of raising apparent anonymisation errors, we have heard nothing from the judge in response to our enquiry, which remains unanswered other than the email from the court staff mentioned above. In the event that the judgment goes back up in some more appropriate format or if we find out more we will update this post.
Feature pic : private by Bryan Kennedy on Flickr (Creative Commons – thanks)
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