Written evidence from the Incorporated Council of Law Report for England and Wales (ICLR)


1. The ICLR was established in 1865 by members of the legal profession with the object of the “preparation and publication, in a convenient form, at a moderate price, and under gratuitous professional control, of Reports of Judicial Decisions of the Superior and Appellate Courts in England and Wales.” (Memorandum and Articles of Association, 1870). It is a company limited by guarantee and a registered charity (No 250605).


2. This response has been prepared by Paul Magrath, Head of Product Development and Online Content.


3. The ICLR supports open justice and transparency, of which law reporting is an important component. Our work depends on court hearings being conducted in public, and on access to court papers, such as pleadings and skeleton arguments, as well as being able to attend and take a note of oral judgments, and to obtain copies of written judgments whenever handed down or otherwise distributed. Our reporters and editors are all either barristers or solicitors.


4. Judgments are selected for reporting according to their importance and value as precedents. In practice, these are primarily those given in the most senior courts, including the High Court, Court of Appeal, Supreme Court, the Upper and Employment Appeal Tribunals, and the European Court of Justice. Reporters are assigned to these courts and rely on information provided by court staff and the judiciary in order to monitor the activity of the court, attend hearings of importance, and report decisions in a timely and accurate manner. Proofs of full text law reports are sent to the judges for approval prior to publication. Where a case appearing in the official series of The Law Reports contains a note of the argument, a proof of this is also sent to counsel prior to publication. Reports of cases in The Law Reports published by ICLR are required to be cited in preference over reports from any other series: Practice Direction (Citation of Authorities) [2012] 1 WLR 780.


5. Our response to this Call for Evidence is primarily informed by the work of our law reporters but includes observations more generally in support of open justice, derived from our collective experience in court reporting. In answer to the specific points raised in the Terms of Reference of this inquiry:


How the media’s coverage of courts has changed, and what the implications are for open justice


6. Our reporters attend courts in the Royal Courts of Justice alongside reporters from the Press Association and other agencies but the number of press reporters has declined over the years, and certainly over the decades since many of our more senior reporters began their careers. For example, there was at one time a High Court Journalists’ Association (HCJA) with flourishing membership and strong links with court staff and the judiciary, of which I was for a time either chair or secretary. The general decline in local court reporting, notwithstanding such initiatives as the Local Democracy Reporting scheme (https://www.bbc.com/lnp/ldrs) is well attested: see The Cairncross Review (https://www.gov.uk/government/publications/the-cairncross-review-a-sustainable-future-for-journalism)


7. Where cases are reported in the news it tends to be because the facts are sensational or the participants are famous. The selective approach to news reporting therefore gives a skewed impression of the work of the courts, which more comprehensive reporting would dilute and would better serve public legal education about the work of the courts.


What barriers there are to the media obtaining information from the courts


8. A common complaint of reporters concerns the adequacy and accuracy of court listings. Reporters (and by extension members of the public or other court observers, such as legal bloggers, students or researchers) rely on such listings to know what cases are being heard and when judgments are due to be given. With remote hearings, it is important that sufficient advance notice is provided to enable those who wish to access the link or watch a streamed hearing are able to do so. This has sometimes been problematic during the necessarily urgent mass transition to remote hearings during the pandemic.


9. A more common complaint concerns access to court papers. In the case of physical court hearings, where physical papers are filed with the court, it used to be possible for accredited news reporters and law reporters to request to see a copy of pleadings and other papers from the associate or clerk of the court, subject to their not being removed from the court. The increasing use of written arguments and digital filing has made it much harder for reporters to ascertain the background facts and issues in a case when listening to submissions in court, and that problem is only compounded when attending a hearing remotely. It is all too common to hear the following type of exchange:


“We’ve read the skeletons - do you wish to elaborate on anything in particular”

“I’m grateful, just this small point… but my argument is set out in full in the written submissions”

“We understand that point and reiterate that we have read the full written argument. Thank you for succinct submissions which the court appreciates.  Who’s next?”

10. Traditionally, law reporters have also relied extensively on the assistance of counsel and solicitors in supplying copies of relevant papers, particularly skeleton arguments. Law reporters need these to check the facts and quotations in the judgment, report the submissions, and list the cases cited to the court. Unfortunately, the increasing use of digital bundling and a heightened concern for privacy and confidentiality has led to a growing reluctance by legal teams to loan or provide copies of court papers.


What could be done to make information on court cases more transparent and accessible


11. More and better information could be provided by way of listing. Better access to court papers could be provided by the court itself when managing hearings. At present the Civil Procedure Rules provide by rule 5.4C for access to court papers by a non-party and by Practice Direction 52C para 33 for Documents to be provided to court reporters at the hearing of an appeal, but these rules are not always complied with and there may be restrictions as to who can benefit from such rules or as to the level of fees payable for access, which are effectively barriers to open justice for the public at large.


12. Where hearings are conducted remotely there is an opportunity to add to the platform an element of access to court papers or exhibits. This may require some further development of the relevant technology, but many of us are currently accustomed to sharing our screens on Zoom and it does not seem unreasonable to be able to provide a visual display of relevant documents or exhibits on a screen alongside images of participants. Alternatively, a link could be provided to a relevant online folder to enable reporters and other observers to see documents and other materials being discussed in a hearing.


The implications of social media for court reporting and open justice


13. Law reporters do not generally use social media for reporting purposes, but as a publisher ICLR uses social media to advertise its products and support current awareness of legal developments. The use of social media by law officers and departments such as the Attorney General’s office well illustrate both the benefits and the pitfalls of social media: the benefits in terms of bringing matters to the public’s attention, and the pitfalls in the sense that one of those matters is the risk of using social media to commit contempt of court by commenting on a pending trial.


14. To the extent that it constitutes a use of social media (as opposed to simply a development in the way content is published), legal blogging may be said to have brought many benefits to public legal education and awareness of the work of the courts. This has been recognised in particular in the context of the family courts, whose transparency is compromised by a justifiable but sometimes excessive reliance on the need for privacy, and where the concept of the legal blogger has been given formal approval in Practice Direction 36J of the Family Procedure Rules.


15. There are some excellent legal commentators who write blogs on the law and on current cases, and these blogs are promoted and distributed further by way of social media channels, in a way that can be regarded as wholly beneficial. However, social media can also be a source of misinformation and the spreading of myths about the justice system.


The effect of court reform and remote hearings on open justice


16. It is clear that judges in the senior courts, both now and for many years gone by, have shown full commitment to open justice, making sure that restrictions in appropriate cases (age of defendant, victims of sexual offences, need for re-trial etc) do not exceed what is necessary and that they are properly communicated to reporters. The development of remote and online hearings has not changed that basic commitment, but there is a risk of introducing barriers if access to remote hearings, both for reporters and other observers, is not provided on the same basis and with the same ease as access to a press bench or public gallery in a physical court.


17. Court reform has introduced two potential barriers: a physical distance, owing to the closure of local courts and transfer of business to other court centres; and a technological barrier, in the form of the need to obtain, and have the equipment necessary to benefit from, access to a remote or videolinked hearing. Law reporters do not suffer from digital exclusion but members of the public and other participants including witnesses or family members may do so. Moreover, there have been inevitable teething problems with the technology which has sometimes affected the ability of law reporters to cover and report on hearings.


18. Subject to that caveat, the development of remote or videolinked hearings offers an opportunity for expanding open justice. Remote access over the pandemic period has had benefits for local reporters and for others, such as victims' families, who are saved from the need to travel to London to attend hearings. In terms of open justice it would therefore be a pity if that videolink system were not pursued after the emergency of the pandemic has receded.


19. The welcome development of online filing, such as via CE-file in the civil courts, offers an opportunity to provide better access for reporters, including law reporters, to court documents and skeleton arguments in forthcoming (listed) and ongoing hearings. While there may be a need to apply some form of gatekeeping in terms of open public access to such material, we feel court reporters and, especially, law reporters should be entrusted not to abuse such access. The UK Supreme Court via its own website offers a model of transparency that is hard to beat, both in terms of providing access to streamed hearings, and to information and (at least in the cases most of general public interest) access to documents.


Final observations


20. The recent announcement by the Ministry of Justice of a national database of judgments to be administered by The National Archives, alongside its official legislation service (www.legislation.gov.uk) offers an opportunity for even wider public access to the judgments of England and Wales than that already provided by the British and Irish Legal Information Institute (BAILII). While ICLR supports that development, we do so on the basis that there is a clear distinction to be understood between (a) the publication of judgments as a comprehensive public record of the work of the courts and a tangible manifestation of open justice, and (b) the more specialised work of supporting legal education and the administration of justice through the selection and publication of important precedents in a common law system, with the added value of a headnote and other enhacements, as performed by ICLR.


21. Open justice and transparency take many forms. It is no longer enough simply to provide a physical or virtual public gallery. Court hearings have changed over the years since Scott v Scott [1913] AC 417 (https://www.iclr.co.uk/ic/1911000294) (the leading case on open justice and the need for proper scrutiny of the courts). The increasing use of written submissions and digitised documentation means that the provision of access to information for those observing the work of the courts needs to change. This means, in particular, access to documents. Law reporters are not the only observers who would benefit from better access in this respect, but it is critical to our work -- which itself is a critical component of open justice and transparency in a more general sense.



October 2021