“Our justice system is years behind other public services like health and education in collecting and using data to understand performance and impact” says Natalie Byrom, director of research at the Legal Education Foundation (TLEF). “We need a fundamental shift in attitude and culture to ensure that changes are underpinned by solid evidence and that decision-makers are accountable to those who need the law most.”
This is the impetus for a new research and policy centre, the Justice Lab, led by Byrom, who has been relentlessly pursuing issues on justice system data for a number of years. All credit to the TLEF for championing and prioritising this work when it has been so neglected. Though there have been some important justice data initiatives they have received very little policy and external attention – and therefore insufficient scrutiny.
The great and the good of the justice data and journalism world turned out for the Lab’s launch at an event in Parliament on Wednesday (22 February), with endorsements from Sir Bob Neill MP, chair of the House of Commons justice committee; Sir Ernest Ryder, former senior president of Tribunals; and Hetan Shah, chief executive of the British Academy and member of the TLEF board – as well as virtual contributions from civil justice/socio-legal pioneer Dame Hazel Genn and Canadian access to justice expert Shannon Salter.
One major problem for achieving the “fundamental shift” that Byrom calls for is the disparate and unique nature of the English court system. Each court and tribunal type – in the major jurisdictions (civil, criminal, family and tribunals) has its own methods of practice and idiosyncrasies. Though there are rules that apply across a jurisdiction, there are differences in their application and interpretation – the way that listings data is shared, for example, which varies significantly between Crown and Magistrates’ courts (as just one example).
The lack of data is a problem at a case-level (meaning we don’t always have a published written judgment from the senior courts, let alone a formal record of what the judge said in a magistrates’ court) as well as at a system-level (meaning we cannot properly assess the effectiveness of different aspects of the justice system, or the relationship between case/participant characteristics and justice outcomes – see Byrom’s report of 2019 on this, and the National Audit Office’s most recent report on the progress of the HMCTS Reform programme).
Byrom’s numerous interventions and initiatives have exposed just how limited our knowledge of the courts is, as well as highlighting systemic issues. For example, TLEF has highlighted research by the Centre for Public Data showing that of written parliamentary questions submitted in 2019/2020, 40% of questions directed to justice ministers could not be answered due to a lack of data. The work underpinning the Lab (in its first stage) includes court observation and reporting projects and UK public attitudes research on justice system data use. And comparative work on justice system data methods (by me, with Cassandra Wiener).
It was gratifying when the House of Commons justice committee picked up some of these issues in its short inquiry of 2021-22. Though the original call for evidence focussed on traditional media needs, it did actually take a much broader view in its report – and adopted recommendations that reflected a range of stakeholder and public needs, including my own that there should be a civil society representative group consulted on the development of open justice policy. My analysis of the committee’s recommendations can be found here (also forthcoming in Communications Law journal).
Of course, the critical question is whether Government will pay heed to these recommendations, and the work of the Lab. Though the justice minister Dominic Raab appeared to receive Sir Bob Neill MP’s endorsement of the new Justice Lab favourably, the Government’s track record on justice system data (and open government, in recent years) isn’t too encouraging. Despite some positive developments (such as the formalisation of the Senior Data Governance Panel), there is a history of Government and judicial lethargy and apathy in this area – there’s much work ahead.
Further, the Government’s response to the select committee report was lukewarm: it rejected key proposals such re-introduction of a courts inspectorate, proposals for regional communication officers, the creation of a new digital portal for courts data, and the establishment of a civil society group (this last one was my main ask). It has, however, promised a consultation on open justice. This, it said, would be an opportunity to look at transcription tools, document access, remote observation, expansion of broadcasting hearings and recording of magistrates’ courts.
While many naturally will see a consultation as kicking issues into the long-grass, I welcome this initiative. If designed well (listening to a range of experts and stakeholders) it could provide an opportunity to hear some alternative voices. But consultation is not enough, especially if it is not sufficiently transparent (as such exercises rarely are): we also need meaningful and participatory/deliberative public engagement, in order to design an effective and accountable justice system.
Disclosure: In 2020-21, I was commissioned by the TLEF to undertake research on justice system data, and have worked closely with them, on these issues.
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