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.
Reblogged this on World4Justice : NOW! Lobby Forum..
And those who consistently refuse to publish to bailli??
Well, the current Transparency Guidance contains a huge loophole that you can drive a truck through.
It is in para 17
Where a judgment relates to matters set out in Schedule 1 or 2 below and
a written judgment already exists in a publishable form or the judge has already ordered
that the judgment be transcribed
, the starting point is that permission should be given for the judgment to be published unless there are compelling reasons why the
judgment should not be published.
So if a Judge provides a written judgment or orders a transcript then the judgment has to be published. If they don’t, it is up to one of the parties to apply for it to be published. And generally, the parties in an individual case aren’t keen to do that (save perhaps a case where the parents successfully recover the child and the LA are criticised)
I don’t think that the President anticipated just how many Judges would clock that loophole and just avoid giving written judgments or ordering transcripts. It is a shame, because for transparency to work you can’t have a self-selecting sample – at the moment, you have Judges who are either committed to transparency or proud of their work publishing them, and the ones who are less so being able to avoid it. To pluck a name out of thin air, for example, His Honour Judge Dodds has not published any of his judgments since the Transparency Guidance came out and all we have been able to read of his work are those extracts in the Court of Appeal decisions.
This was/is three separate attempts by the LA to commit the same parent to prison for breaching court orders.
The court orders had penal notices, however, they had 3 conditions attached to them
1) the children’s names
2) the mother must not discuss the case
Sorry, fat fingers and phones … To continue
3) the penalty blah blah
The LA applied for breach of number 1 only, obviously we noticed there was no breach (not that they applied for anyway) and the mother was not jailed.
The LA then tried to have the mother committed to prison for posting the children’s names on the Internet, however, we noticed the pictures and names were posted BEFORE the gagging order, we went with punishment without crime and won again.
Third time the LA tried to commit the mother to prison for posting the same images and naming online after the two previous cases, however, she had not, they had in fact been shared by others on their own various blogs/sites, we argued it was impossible to avoid the thousands of shares seeing that the mother cannot control other people nor is she in charge of the Internet and won again.
The original case judgements including those made at the RCJ (4 years worth) have never been published, nor have the 3 attempts at committal to prison
I think that those judgments ought to be published. A refusal of a committal application is decidedly in the public interest, particularly where it tackles a fresh point of law with potential applicability to future cases. It may be worth applying for a transcript and indicating that the transcript when approved should be published, or alternatively writing to the President.
Thank you sir
A suspended committal Order with a sanitary effect? Blimey M’lud
I’ve just read that the judge in the Murtha case had intended his findings to be included and that a revised version of the judgment is to be published on BAILII. Sounds like the transcript got sent off too quickly in error.
This appears to be an updated version already – it’s different from the first version I saw, around 11 December. RTF doc is created 23 December. It seems to include more material – perhaps the findings. Evidently a work in progress but unsatisfactory all round.
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The requirement to publish a committal judgment appears to be in the LCJ’s practice direction of 26 March 2015, not the President’s guidance of January 2014. In the PD, para 14 says that the judgment must be written and published. Don’t appear to be any exceptions.
Back on the 2014 guidance (para 17) point though, isn’t it usual for a judgment in a contested fact-finding or a care application to be written ‘in publishable form’?
No, I think it is still fairly rare. Judges do quite often make notes, or bullet points, or even draft out their judgment before delivering it, but the frequency of a Judge actually handing down a written judgment is quite rare (and I think it became rarer after the 2014 guidance).