This is cross-posted on the Transparency Project blog (I’m a member of the TP core group) – I contributed to the consultation on the group’s behalf, with Paul Magrath (ICLR) and Julie Doughty (Cardiff University).
According to the latest official statistics on privacy injunctions in January to December 2016 there were just three proceedings where the High Court considered an application for a new interim privacy injunction. Two were granted, one was refused.
Two appeals were heard in the Court of Appeal against a granting or refusal of an interim injunction (the refused application mentioned above) before it went to the Supreme Court, where the injunction was upheld until trial or further order (though the case isn’t identified, we can safely assume this is the well publicised case of PJS v News Group Newspapers).
This data has been collected for the past six years as a result of the Master of the Rolls’ report on super injunctions, conducted in the wake of the super injunction furore of 2010-11.
Following his recommendation that HMCTS and the MOJ investigate the viability of data collection on privacy injunctions, a new Civil Practice Direction was introduced to ensure judges recorded data relating to specified cases. These include civil proceedings in the High Court or Court of Appeal in which the court considers applications, continuations and appeals of injunctions prohibiting the publication of private or confidential information (the scheme does not include proceedings to which the Family Procedure Rules 2010 apply, to immigration or asylum proceedings, or to proceedings which raise issues of national security).
Prior to the introduction of this regime, it was impossible to say how many ‘super’ or anonymous injunctions had been granted historically, as the MR (then Lord Neuberger) conceded at the time.
But how accurate is the Ministry of Justice data? According to the Inforrm media law blog, not very. Although the data purports to show fluctuation and an overall decrease in injunction applications since a peak in January to July 2012, the Inforrm blog has shown these statistics are “clearly incomplete”. The evidence is incontrovertible: there are public judgments in five privacy injunction applications in 2016. Furthermore, there have been press reports of other proceedings with no published judgments.
Inforrm remarked: “It is difficult to ascertain the true figure as many injunctions are never the subject of publicity – often because they relate to threatened ‘privacy disclosures’ by private individuals who subsequently agree to permanent undertakings. It seems likely that there were at least four times as many applications for privacy and confidentiality injunctions in 2016 than those recorded [by the] Civil Justice Statistics Quarterly. The reasons for this under reporting are unclear.”
It was worth remarking, as the judge in charge of the Media and Communications List at the Royal Courts of Justice, Mr Justice Warby, has now launched a short consultation for practitioners and other court users.
Among other questions it asks users whether they agree that (a) collection of statistics is worthwhile, and (b) whether they think the current system is adequate.
On behalf of the Transparency Project, Paul Magrath (ICLR), Julie Doughty (Cardiff University) and I (University of Sussex) have responded: answering that (a) yes, collection of statistics is worthwhile, and (b) no, the current system is inadequate. Our submission can be downloaded here [PDF].
There is no official space for extra comment, but we offer the following observations and hope there will be an opportunity to engage further with the judiciary and the Ministry of Justice on this issue, and broader points about access to the courts (there is, for example, a problem about access to information about reporting restrictions and defamation cases, as I have previously written about here and here).
We welcomed the Master of the Rolls’ recommendation in 2011 for HMCTS to examine the feasibility of introducing a data collection system for all interim non-disclosure orders, including super-injunctions and anonymised injunctions.
Prior to this, there had been much confusion in the media and on social media about the number and type of injunctions that had been granted. There was some criticism of media exaggeration and distortion but at the same time, no reliable source of information existed with which to check the claims that were being made.
At a press conference marking the launch of the release of the Master of the Rolls’ report, Lord Neuberger said he ‘would not like to say precisely how many’ super injunctions or anonymous injunctions had been granted since 2000. The number could not be ascertained because no reliable records had been kept.
It is our view that it is wholly unacceptable that no reliable information exists for how many injunctions were granted historically. We were pleased therefore when the Ministry of Justice began publishing results twice a year. However, we do not think the system is reliable or complete, as has recently been observed on the Inforrm media law blog. It is worrying that HMCTS and the MOJ did not appear to notice the incompleteness of the data.
We recommend that judges should record all interim and final non-disclosure orders, including super injunctions and anonymised injunctions and relating to publication of private and confidential information (by mainstream media organisations or other publishers including individuals) – as defined in Practice Direction 40F.
We have two concerns about the process to date despite the PD being in force:
First, that not all such orders have been recorded. We do not know the reason for this. It is important that PD 40F is followed and enforced. Although we ticked option 5b, we do not think the judge’s completion of the form should rely solely on legal representatives prompting the judge to complete the form as they may have no incentive to do so. HMCTS should also ensure that the data has been correctly completed by the judge. Therefore, as part of the data collection exercise, HMCTS should have an audit procedure for ensuring data is being correctly and systematically collected.
Second, we do not think that the format of the data is accessible or as useful as it could be. We think that the anonymised case names should be published alongside the statistics to allow for verification of the data and cross-referencing with any published judgments (there would be rare exception where a ‘true’ super injunction was in force). We think the MOJ and HMCTS should also collect information relating to the eventual outcome: when an order is discontinued or expires, for example.
Given the narrow remit of this consultation, we will keep these comments brief. However, we have other ideas for how transparency and access to information in media proceedings could be improved with view to improving public understanding and education in these types of proceedings. We would welcome the opportunity to discuss these with you and would like to join any future meeting and discussions of users of the Media and Communications List.