We recently received an enquiry from someone who wanted a court judgment in their case to be published and who didn’t know how to go about this.
When a judge decides to publish their judgment, their approved copy gets sent to The National Archives (TNA) and usually also to BAILII, the long established free legal information charity. People looking for cases still often use BAILII rather than TNA.
We realised when we got the question that it’s not easy to find out how and why judgments get published, although we had written about guidance that was issued to judges in June last year here – More Family Court judgments to be published online
A couple of points have now come up.
Where can I find the guidance?
We’d been using a link to the Transparency Implementation Group webpage to find where the guidance is publicly available (though only as a document download). You can’t just search for it on the website for the Courts and Tribunals Judiciary, where other information on family courts can be found and where you’d expect to find the publication guidance. Searching for it doesn’t bring the guidance up. However, if you ask Google ‘will my family court judgment be published?’ this will take you straight to a link that downloads the actual document:
We’ve now written to the contact email address on the Judiciary site to ask them to add the guidance to the relevant webpage so it can be quickly found there – we’ll report back when this happens!
We’ve also asked the person who runs the helpful www.thetig.org.uk page to add a link to the guidance on that page. This gathers together most of the useful family court transparency links in one place, so its always a good place to start if you are trying to find something transparency-related that is buried on the Judiciary website.
Which judgments get published?
The June 2024 guidance sets out expectations for judges at all levels, and magistrates, to publish certain numbers of their judgments each year. It also sets out what types of case might be seen as of public interest, and advises on issues such as protecting anonymity of children.
In a nutshell, at present, most High Court judgments are published, and several at circuit judge level and a few at district judge level. Each month, in our Roundup, we summarise what we think are the most interesting and useful cases amongst these (as well as relevant Court of Appeal judgments which have traditionally been published anyway, because they can set a legal precedent that has to be followed by other judges). The numbers published aren’t as high as the guidance would indicate. This isn’t so much to do with resistance in principle but simply because judges, especially district judges, are too busy.
It’s important for parties to know if their cases are likely to end up on TNA and BAILII in case they want to apply to the judge not to publish.
Can I ask for my judgment to be published?
The 2024 guidance lists the types of case that would normally be in the public interest to learn about through publication.
This guidance replaces earlier versions issued in 2014 and 2018. The 2014 guidance was mainly directed at judges but also specifically referred to a party being able to ask a judge to send the judgment to BAILII – the judge would then consider whether it would be in the public interest to do that. Probably when that 2014 guidance was written by Sir James Munby (then President of the Family Division) urging judges to start publishing in quite a radical new approach, it was envisaged that sometimes a judge and a party might have different views about whether publication was the right thing to do. The 2014 guidance said that if a party applied for publication, they would be expected to pay for the transcript. The 2024 guidance doesn’t go into such detail but it does say:
A judgment may be published of the court’s own motion, or as a result of an application by a party or interested person. [para 3.10]
So it is still envisaged that a party might be actively applying for publication.
We’re not aware though of any instances where parties applied. In our legal blogging experience, a barrister sometimes asks the judge to consider publication, which is presumably a request based on their client’s views. It’s not been seen as ‘an application’ in our experience.
In the current environment of greater transparency and the Reporting Provisions, and reflecting the President’s aims in his Transparency Review of 2021, all judges are aware that some publication is desirable. We’ve not seen any magistrates’ decisions published on TNA – nor do we know if TNA even has a category for them. Maybe from the end of this month, when all magistrates courts come within the Open Reporting Provisions, more attention will start to be paid to more transparency at that level of court.
The problem for judges is finding sufficient time to write and safely anonymise a judgment. The 2024 guidance was drafted alongside recommendations to the Ministry of Justice to establish an anonymisation unit. As that hasn’t happened, it’s inevitable that only a small proportion of lower court judgments are published. In this context, we think that if a judge decides that publication is in the public interest, following a party asking for this, it’s logical to fit that publication into the expectations in the guidance and not ask a party to pay anything. It would be illogical for a judge who has a notional publication target and agrees with a party to categorise that case differently to any others that are in the public interest. In any event, the 2014 guidance and its reference to payment has been superseded by the 2024 guidance that doesn’t say anything about payment.
if you ask the judge to publish, they will ask other parties for their views.
What if I don’t want a judgment in my case published?
Statistically, unless you are appearing before a High Court judge, your judgment is unlikely to get to TNA or BAILII. For example, in the whole of July, only 20 Family Court judgments given by circuit and district judges appeared on BAILII. However, it’s possible that the judge in your case may decide to send in an anonymised version. If you are concerned about this happening, let your lawyer know. If you are in court without a lawyer, you can ask the judge whether they are considering publication and explain why you would object. You would need to explain to the judge how the intrusion on your privacy or that of other people involved in the case would outweigh any rights to information of the general public. Remember that the judgment will be anonymised to protect children in the case, so you would need evidence of a realistic prospect of someone’s sense of privacy being threatened. This is known as the Re S balancing exercise between competing rights of privacy (Article 8) and freedom of expression (Article 10).
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