You may be aware of the President’s guidance on Transparency, which sets out those judgments which ought to be published on Bailii, which is a site that is available for members of the public to use as it does not charge a fee or require a subscription. The guidance sets out that all committal judgments should be published, and that’s a laudatory aim. It must be right that if a Family Court or Court of Protection are sending someone to prison (or even if they were asked to do so and said no) that the facts are put in the public domain so that they can be reported and debated.
You may be less aware that I’ve seen five examples since the Transparency guidance was published, of judgments going up on Bailii for all to see where the anonymisation process was insufficient. For example, I have seen the real first names and ages of the children accidentally go in, the real address and name of a mother’s boyfriend said to pose a risk, the real surname of someone accidentally go into the Reporting Restriction Order judgment saying that the surname was not to be revealed, and in the worst example, a case that ended with the children going off for adoption accidentally leaving in one paragraph the real name of the mother. In each of these cases, I and others have contacted Bailii who acted very swiftly in taking them down and making the corrections. It isn’t Bailii’s job to proof read the judgments – they publish the transcript that a Judge has sent them saying that “This is okay to publish please” or similar.
Accidents can happen.
The process is that the judgment is transcribed, the Judge checks it carefully and makes any corrections, and then the corrected version goes onto Bailii, where it is available for anyone to look at. Sometimes that careful process can be a bit slow – when there’s a story in the news and you know that there’s been a Court case sometimes that careful process means that it takes weeks to get the proper judgment available to read and discuss and the newsworthy event is long forgotten then, and whatever slant the Press put on it becomes the definitive version.
But of course, Judges are people, and people under pressure. They have to read huge amounts of material, have to make complex and emotionally difficult decisions, and they have to listen to lawyers drone on and on for about six hours a day, which must be pretty close to intolerable.
[Apologies to those who haven’t watched it yet. Apologies to those readers who were hoping for the Aiden Turner towel photo instead of this one]
So you can see perhaps that a Judge pressed for time could miss a stray reference – redacting a document is tricky and it takes time and concentration – and usually a second pair of eyes. I’ve no doubt at all that the mistakes I’ve mentioned above were just honest mistakes that slipped through. Nonetheless, even an honest mistake can still be costly to the persons involved whose privacy ends up being breached.
This one, however, doesn’t entirely feel like it was checked at all before it went to Bailii.
Newcastle City Council v P and ABC 2015
A shame, because the bits that aren’t (inaudible) are largely very good, and it raises an important and interesting legal issue about the extent to which in a committal hearing which is to the criminal standard of proof, hearsay evidence (which is admissable in Court of Protection and family cases) can be relied upon, and also where the primary source of the evidence is from a person who lacks capacity. It could have been a very helpful precedent. I don’t think any lawyer could safely hand this up to a Judge and invite them to draw any conclusions, because there are just too many gaps.
I’m not meaning to single this particular Judge out for a hard time – I think it is more broadly indicative that in amongst the many pressures on Judge time, perhaps checking transcripts of judgments comes lower down on the list of priorities that the President’s guidance really made allowances for.