Where did all the privacy injunctions go? A response to the Queen’s Bench ‘Media List’ consultation

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.

 

Prisons and Courts Bill: what do plans mean for courts access?

I was preoccupied by whistleblower and source protection issues last week (more on that soon) so I haven’t had as much time as I’d like to look at the new Prisons and Courts Bill, published on Thursday (23 February).  As anticipated, many of its features raise issues for courts access – both physical and virtual.

Though I am yet to consider the Bill documents in full detail, I am concerned at this stage that the proposals in the draft legislation and accompanying documents that impact on physical and digital courts access have not been subject to open and thorough public consultation. I also think it’s important that this is not understood as a black-and-white open justice issue: while access to courts information is crucial, there are also important issues relating to privacy and rehabilitation of offenders to address – an important policy discussion that hasn’t happened to date.

In the coming weeks, I’ll provide more detail and comment but in the meantime, here is a quick overview of the aspects salient to courts access.

The government has published a bill that covers prison safety and reform, court reform, the judiciary and whiplash compensation. Of relevance to transparency and courts access, are its proposals on ‘virtual’ hearings via video or telephone conferencing and ‘online convictions’, whereby offenders charged with some less serious criminal offences, such as train fare evasion, will be able to plead guilty online, accept a conviction, be issued a penalty and pay the penalty.

Prior to the Bill’s publication, there has been some – limited – discussion about the extent to which these sorts of proceedings would be open. There had been public discussion about the possibility of physical ‘viewing centres’ to allow public access to virtual proceedings. Additionally, in its consultation on ‘Transforming Our Justice System’ including plans for online convictions, the Ministry of Justice touched on the prospect of publishing online listings and results, but without providing full detail. In response to the consultation, At the time I – on behalf of the Transparency Project group – raised concerns about the lack of detail provided and mentioned issues that need further open consultation in relation to transparency and access, as well as privacy and data protection, and rehabilitation of offenders. For other relevant posts on this topic, please find reports of recent events on online courts here and here.

I have not yet scrutinised the bill in detail, but here are some preliminary observations:

  • Part 2 of the Bill concerns provisions for virtual hearings. It will enable criminal and civil courts and tribunals to make directions to live-stream a hearing which is not taking place in a physical courtroom. Additionally, the Government intends to make it possible for these to be viewed by members of the public and media using a screen in a court building.
  • The Explanatory Notes accompanying the Bill explain that legislative provision is required to create offences that protect participants and prohibit ‘recording or transmitting live-streamed proceedings photography and sound recordings in the context of virtual hearings and live-links’. These are designed to mirror existing offences in physical courts, as provided for in Section 41 of the Criminal Justice Act 1925 (prohibitions on photography in courts) and the Contempt of Court Act 1981 (prohibiting the making of unauthorised sound recordings).
  • The Bill appears to contain no direct mention of online listings for virtual or online convictions, though makes reference to these in the Explanatory Notes (paras 33-34), saying that the Government intends to ‘maintain’ transparency by ‘regularising listings and publishing results online’.

Relevant clauses of the Bill (which I will comment on in more detail in due course):

Audio and video technology: criminal courts

  • Clause 32: Expansion of availability of live links in criminal proceedings. Schedule 4 (live links in criminal proceedings) has effect.
  • Clause 33: Expansion of availability of live links in other criminal hearings. Schedule 5 (live links in other criminal hearings) has effect.

Public participation: court and tribunal proceedings conducted by video or audio

  • Clause 34: Public participation in proceedings conducted by video or audio. Schedule 6 (public participation in proceedings conducted by video or audio) has effect.

Additional reading

Image: Ministry of Justice

 

 

Online courts: What’s the ‘human’ impact?

The testing of online courts should not simply be about whether the technology works, said Andrew Langdon QC, chairman of the Bar at last night’s event hosted by the UCL Judicial Institute,The Case for Online Courts’.

He sensibly pointed out the ‘human process’ of law, and the potential impacts of the transition to digital over face-to-face technologies.

Langdon was one of a number of experts responding to Professor Richard Susskind’s lecture on his vision for online courts, and online civil dispute resolution in particular.

Susskind, IT Adviser to the Lord Chief Justice, re-capped his 2015 recommendations for Online Dispute Resolution for low-value civil claims, which received a positive media and judicial response at the time; the legal profession (as reflected in later responses by Langdon and Robert Bourns, President of the Law Society) had more reservations.

To some extent this is expected, said Susskind; all professions are resistant to change, as he explored in his book – co-authored with his son – on the future of professional expertise.  It doesn’t seem to have fazed him: he offered a lively rebuttal to the criticisms he’s heard, arguing that his proposals will improve access and the court user experience, rather than diminish it.

He suggested that if the state doesn’t provide, the private sector will, which poses risk to the Rule of Law. In his view, it was vital that the state offers public digital services that offer low cost and efficient dispute resolution.

As well as Langdon and Bourns, we heard from Susan Acland-Hood the new Twitter-active CEO of HMCTS (@CEOHMCTS); Sir Ernest Ryder, senior president of Tribunals, with UCL’s Professor Hazel Genn as chair.

[You can find some of my tweets from the evening here]

Change in ‘bite-size’ chunks

Acland-Hood describe the culture of reform in HMCTS as one of incremental change with user ‘engagement’ and testing at every stage. She later suggested that lawyers should be advising, not navigating clients through administrative processes.

We were shown screenshots of a ‘Money Claims’ service currently in ‘alpha’  testing stage; and a Divorce application service in ‘beta’ – complete with adultery or otherwise tick boxes to indicate the reason.

Her emphasis was on the necessity of this change and she used the analogy of modern banking. How many people would now give up online banking  and ATMs if they had to choose between those services and face-to-face meetings with the local bank manager? Her point being – presumably – that we can have both: online services for straightforward and simple processes and face-to-face for situations that necessitate it.

Following Acland-Hood’s contribution, Sir Ernest Ryder made clear that the judiciary understood it wasn’t a ‘one-size-fits-all’ solution. An advocate of online and virtual processes where appropriate, he discussed their benefit (e.g. allowing participation from overseas) but also limitation when a lack of digital access or skills prohibited participation.

Open justice and digital publication

So what was missing from the discussion? I’m aware that I sound like a broken record but I was disappointed we didn’t hear more on the access plans and implications for online and virtual courts.

Susskind touched on the open justice concerns prompted by ODR proposals, and suggested that ODR could in fact increase access and transparency for civil litigation. In his view, an internet-based based court service is likely to be more transparent and visible to larger numbers of people.

He’s probably right (many civil claims are either abandoned or settled out of court away from public view) but I think there’s more to be discussed on this point. What sort of transparency is required? How should open justice look in contemporary digital society? How much courts data should be available to the public and media, and in what formats?

In the Q&A that followed Penelope Gibbs of Transform Justice asked the panel about plans for systemised publication of online conviction results (mentioned very briefly in the recent ‘Transforming Our Justice System’ consultation, accompanying Impact Statement and Response). Sir Ernest Ryder indicated that legal implications for data protection and rehabilitation are being considered by the judiciary and legal opinion sought.

In my view, this answers the ‘legal process’ question, but not the ‘human process’ one (in Langdon’s terms). It is worrying that – to date – the MOJ has not publicly consulted on its open justice plans.

It is meeting with stakeholders and its ‘engagement groups’ but I think it needs to go further than this. These plans will have very real social impact and this needs to be anticipated and considered.

Ryder expressed his desire to maintain and uphold open justice and suggested that much of this data (e.g. listings) is already available. I would add that some of this data is public, but in a very chaotic and patchwork way. Systematic publication of trivial offence listings and results (rail fare evasion, for example) will be a new innovation and needs thinking through. Bizarrely, as Penelope Gibbs has previously pointed out, if a person pleads guilty and accepts an online conviction, they may face more exposure than if they are convicted in a physical hearing having pleaded not guilty (she says this isn’t a reason for publishing all convictions online).

Furthermore, open justice discussions must not be limited to representatives from the media and legal professions. There are a whole range of courts users and observers who have an interest in open justice and whose views need to be heard in order to design fair and effective access systems. These include legal and justice NGOs, academic researchers, civil litigants and their family members, criminal defendants and people with convictions, witnesses and victims. HMCTS must talk to representatives of these affected groups.

I will continue to raise these points and try and engage with members of the judiciary, MOJ and HMCTS as far as they will let me! The forthcoming Prison and Courts Reform Bill (promised in the last Queen’s Speech) may offer opportunity to engage with Parliamentarians too.

My fear is, however, based on last night’s debate, is that once again access to courts data is an afterthought – understood as a practical issue to resolve internally with a few selected stakeholders, rather than one of fundamental importance to the rule of law and respect of human rights that needs open, independent and external scrutiny.

Plans for future online communication of courts will have a whole range of ‘human’ impacts and we need robust research and an open policymaking process to help the judiciary and HMCTS devise fair and proportionate systems for public and media access to modern court and tribunal proceedings.

But what does open justice actually mean?

The notion that justice must be seen to be done needs little introduction to either a lay or legal audience,  but its familiarity belies an underlying complexity. See, for example,  PNM v Times Newspapers, to be heard by the Supreme Court this week.

The court will hear an appeal against the Court of Appeal’s decision to allow reporting of information about a person named in open court, but not charged with any offence, nor a witness or party to the case, in which seven people were convicted of serious sexual offences – including rape and conspiracy to rape children, trafficking and child prostitution.

As Hugh Tomlinson QC notes in a preview on the Inforrm blog, it’s a ‘difficult’ case, ‘which is likely to produce a definitive restatement of the principles which apply when a party is seeking to derogate from the principles of open justice’.

Plans to modernise the courts system throw up new problems for open justice and privacy rights, which I’m not wholly confident are being fully considered in the context of digital technology and competing individual and organisational interests (I hope I’m wrong).

All this is something I’ve written about for the Justice Gap’s new issue of Proof Magazine, which offers a wide range of (and more expert than me) perspectives on access to courts, and includes a new charter for open justice, focusing on access to information in criminal trials, led by the Centre for Criminal Appeals.

My article is uploaded here:

proof-jt-2

And a version appears below:

Justice Must Be Seen To Be Done … But What Does That Mean?

It was something of a shock to the handful of people writing about the Court of Protection when a ‘Transparency Pilot’ was announced in November 2015. Lucy Series, an academic researcher who studies the Court, remarked on a ‘dramatic shift in policy’ and the ‘radical approach’ taken.[i]

That was not to say that some opening up of the Court, which hears cases relating to individuals’ mental capacity and welfare, was not welcome. Its followers were simply taken aback: the pilot did not merely allow accredited press access, as is the case in the family courts, but opened cases to public view, albeit with strict reporting restrictions.

Since the pilot appeared to have been launched with no public consultation, what was the prompt? The press release alludes to transparency, ensuring wider understanding, and seeing justice being done.[ii]  It is the latter sentiment that is deeply embedded in legal practice. Even people with little legal knowledge are likely to have heard that frequently repeated trope, that justice must be seen to be done. It runs deep in British culture, found in crime dramas and tabloid newspapers, not only in the law reports.

The open justice principle is often rationalised in various ways: to allow scrutiny of proceedings to ensure proper judicial conduct and a fair trial, to enhance public confidence, to deter future offences, and to inform the public about matters in the public interest. Some justifications are more persuasive than others; evidence to support the deterrence argument is weak in civil and criminal contexts, and especially in unusual cases where a repeat crime by the offenders or others is highly unlikely.

In truth, very few people sit in the public gallery. Instead, we rely on proxies to report courts for us, most usually, the press. Regular court reporters are dwindling in number too, however. Their physical absence does not make the right of access redundant: many would argue it is the possibility that the press or public might attend court that is part of an open justice approach. Nonetheless access could be improved, with better digital communication of proceedings, including explanation to the public of what is taking place.

Too often, the dissemination of courts data is an after-thought. Take a revealing interaction at a Public Inquiry in 2012 considering the death of Azelle Rodney, who was found to have been unlawfully shot by police. The Inquiry chair, Sir Christopher Holland, asked the Inquiry counsel about what had been, and what would be, uploaded to the website.  Holland commented that it had ‘never occurred’ to him that a particular exhibit would be ‘public and go on a website’.[iii]

Though the digital publication of materials during this Inquiry and others is to be commended, the exchange suggested a lack of a policy and prior discussion about how digital materials should be handled. Furthermore, public access may require the intervention of media organisations, which cannot be guaranteed if a case is not deemed newsworthy.

A more recent example is the confusion that followed the trial of Ben Butler for the murder of his six year old daughter, Ellie.  After Butler’s conviction in 2016, relevant judgments in the family court were made public but it proved impossible for non-accredited journalists to check the terms of the reporting restrictions without making a potentially expensive application to the court, as the barrister Lucy Reed documented on her blog.[iv]

The issue does not just concern public facing data, it affects internal practice as well. In February 2016 the Court of Appeal judges considering the continuation of reporting restrictions in the Incedal trials (see Ian Cobain in Proof) expressed consternation that they were not able to consider closed judgments that may have been relevant to their decision because no records of such judgments were kept.[v]

The open justice principle is often spoken about as if it is a universal. In reality, it is not. At the practical level, practice greatly varies between courts. Certain courts conduct the majority of their work in private. These courts include the Investigatory Powers Tribunal (IPT) and the Special Immigration Appeals Commission (SIAC). Until recently, the public and press were excluded from family proceedings, but accredited media representatives are now presumptively permitted in to most, but not all, types of hearings.

Even within courts that are by rule open to public visitors, there is great variance in the handling of restrictions and accessibility. It is much easier to access copies of court listings, ie. a list of the cases being heard in a given week, at some local crown and magistrates’ courts than others.

At the theoretical level, open justice is also understood variously, as is evident in many early decisions on reporting access and restrictions, some overturned at appeal. In 2016, Mr Justice Globe was not persuaded by the ‘deterrence’ argument in naming two teenage girls found guilty of the murder of Angela Wrightson;[vi] in contrast, in 2014, Mr Justice Coulson considered that naming a 15 year old convicted of the murder of his teacher Ann Maguire ‘had a clear deterrent effect’.[vii]

By observing these discrepancies, I am not making the case for the universal application of open justice. Rather, that principles of openness should be fairly and consistently applied in different sorts of courts, based on clearly written and publicised guidance for physical and digital dissemination of material. Open justice can take different forms in different contexts, but it is crucial that underlying procedure is transparent, even if some information is legitimately withheld.

This guidance must be based on public consultation and ideally, independent research, which secures the views of all types of court users, especially in relation to rehabilitation, privacy and data protection in online environments. In the Court of Protection this could include ‘P’, the usually anonymised individual at the centre of cases, whose voice is rarely heard. As Julie Doughty and Paul Magrath recently argued, ‘the vital piece in the picture is whether P and their families have a sense of intrusion’.[viii]

This exercise would also help detach media interests from other interests. It can interrogate whether it is necessary to reveal the names of participants in particular cases and why. Journalists have argued that such specific detail allows them to make the story engaging, and more importantly, tell it in a humanising way that aids public understanding of the whole case background. Less credible are arguments that centre on the financial viability of newspapers, especially when pitted against the rights of individuals in the family courts and Court of Protection who are concerned about press intrusion.

Any consultation must also consider notification of the media and members of the public about forthcoming court proceedings, reporting restrictions, and court results.  The current system is astonishingly ad hoc and over reliant on third parties to seek out information. A commercial service run by the Press Association is used for notifying the media of some types of injunction applications but not all, and not all media organisations are subscribers.

Perhaps most crucially, the way in which information is restricted must be more systematically monitored. Very little to no data exists on this. During a media frenzy over privacy injunctions in 2011 it became apparent that nobody knew exactly how many super injunction type orders had been granted. In response, a new practice direction was issued instructing judges to notify the Ministry of Justice of relevant cases, and since then some data has been published. However, this practice direction has lapsed, making record keeping even more haphazard.

At a time when the government is investing over £700 million in courts modernisation, there is a great opportunity for improving public scrutiny and understanding of the courts. At the same time, the judiciary and courts service need to properly consider how personal data generated in the courts process should be digitised and disseminated through global media platforms.

[i] http://www.transparencyproject.org.uk/court-of-protection-hearings-to-be-held-in-public/

[ii] https://www.judiciary.gov.uk/announcements/court-of-protection-to-test-increased-access-for-public-and-media/

[iii] http://webarchive.nationalarchives.gov.uk/20150406091509/http://azellerodneyinquiry.independent.gov.uk/transcripts/269.htm

[iv] http://www.pinktape.co.uk/rants/what-price-transparency/

[v] https://www.judiciary.gov.uk/judgments/guardian-news-and-media-ltd-v-r-erol-incedal/

[vi] https://www.judiciary.gov.uk/judgments/sentencing-remarks-of-mr-justice-globe-angela-wrightson-murder/

[vii] http://www.bailii.org/ew/cases/EWHC/QB/2014/3623.html

[viii] http://orca.cf.ac.uk/id/eprint/91333 /   http://www.bloomsburyprofessional.com/uk/journal/communications-law-17467616/