Written evidence from Courtsdesk News

Introduction

Courtsdesk News, in collaboration with Her Majesty's Courts and Tribunals Service (HMCTS), has been exploring how the principles of open justice can be advanced through improved media coverage of court proceedings, with a particular focus on cases being heard by the Magistrates’ Courts of England and Wales.

Eaglegal Ltd, trading as Courtsdesk, is a legal intelligence company operating in the UK and Ireland servicing the news media, financial and legal services sectors.  Set up in 2015, the co-founder and CEO, Enda Leahy, was a former national newspaper reporter and editor, intent on addressing current challenges in the area of court reporting.

HMCTS supported Courtsdesk News (CDN) in an application to the Nesta Future of News grant scheme which was successful and provided initial funding for the investigation.  A research project was begun under its auspices in spring of 2020 and completed in autumn 2020.  In June 2020 Courtsdesk entered into a pilot agreement with HMCTS, with the purpose approved by the Lord Chancellor for the fulfilment of the aims of Criminal Procedure Rule 5.8.[1], to allow it to access Magistrates’ reporting and proceedings in parallel to the existing “Protocol on sharing court lists, registers and documents with the media”[2].  This agreement was extended with the permission of Lord David Wolfson, appointed as a minister to the Ministry of Justice in December 2020.  HMCTS have been core to us being able to pursue this project, their Communications and Data Access Services teams working with us to facilitate access wherever possible.  Their support is much appreciated and the pilot is on-going.

As part of this work CDN has developed a service for bona fide journalists and news agencies that helps them:

●       Discover newsworthy court cases

●       Manage the increased volume of cases across multiple courts

●       Better understand cases by helping reporters view them in context

●       Facilitate responsible court reporting by improving visibility of press warnings and reporting restrictions

●       Manage their resources and better plan their attendance at court

The service places a particular emphasis on local reporting, but with national coverage.

Through this work we believe we have developed a number of insights that will be of interest to the committee, which we offer now under the following terms of reference:

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

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

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

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

It is likely that other news organisations and research project outputs (e.g. The Cairncross Review[3]) can inform the committee on the significant challenges facing the traditional news media and the resultant drop in court reporting, in the general sense.  Broadly speaking, these are that the media is operating under significant resource constraints, meaning that there are much fewer professional journalists, who have a larger workload than ever before. 

The news cycle has shortened, and the multiplicity of online dissemination channels (including social media), along with the expectations of news consumers, now mean that journalists are expected to produce much higher volumes of articles.  Simultaneously, the volume of the cases going through the courts continues to rise.  Despite this seismic shift, the system delivering courts’ information to those journalists has remained unchanged.  Recognising these challenges, our platform attempts to address them. 

To illustrate how this can have a measurable and positive impact, we would like to treat of this theme in the specific context of the outcome of a trial which we ran with the second-largest regional news reporting organisation in the UK.  This trial showed a significant increase in court reporting, court attendance and active court reporters within that organisation during that period.  The news organisation had been introduced to us through the HMCTS Media Working Group.

This trial ran for a period of nine weeks earlier this year.  Over that period, our consultants worked with the organisation to gather data, both qualitative and quantitative.

●       78 journalists participated,

●       Participation was at 8 geographically dispersed locations, in both large and small centres (i.e. staff count ranging from 3 people to 15+); Bradford, Buckinghamshire and Berkshire, Cornwall, Bournemouth, South Wales, Wiltshire, the North West and Sussex.

●       42 courts were covered

Prior to this, very little Magistrates’ Court reporting was undertaken, with the news organisation almost exclusively focused on the Crown Court. Of the 78 journalists, some 68 either had not or would not have otherwise covered courts content. During the trial, 437 stories were published from the local magistrates’ courts. On average, 47 stories per week.

These trial outcomes not only served as a measurable success in the context of the principle of Open Justice, but also demonstrated that the news organisation would actually generate income over and above the cost of the service. This is a new and economically sustainable model for continued court reporting in the regions, addressing one of the central concerns raised in the Cairncross Review.  The client consequently decided to roll out the platform across the organisation to over 300 journalists, in all of their regional locations in England and Wales. 

The implication is that although there have been significant challenges to Open Justice and Court Reporting, there is very real evidence that improvements in the provision of information to journalists will have a large positive impact on their ability to produce court reports - and that this is already under way with documented success. 

What barriers there are to the media obtaining information from the courts and what can be done

The established process for dissemination of Magistrates’ Court information sees individual

administration offices throughout HMCTS sending copies of advance lists and registers of

outcomes to locally approved and administered lists of email recipients. This takes place on an ad hoc basis, with multiple people involved in sending the data even at individual court level, typically daily, and the data is generally delivered in PDF form.

In order to provide journalists with the service described above, whilst deliberately avoiding the need for any technical or process changes on the part of HMCTS, CDN has invested in the development of infrastructure and software capable of plugging into this existing process, i.e. capable of receiving and automatically processing Magistrates’ Court information through these same email channels and PDF formats.

There were two major challenges to overcome in order to provide the service. The first was to create an automated system that could receive, understand, ingest and structure case data that arrives in an ad-hoc manner through an email system and is contained within PDFs of many different structures. The second was to establish the highest possible level of national and timely coverage in a system that is fundamentally decentralised and largely self-organising.  While the first has been addressed using technical innovation, the second remains challenging because it requires a reimagining of the system used to support court reporting. 

In the remainder of the document we discuss the system supporting court reporting, which can be thought of as being composed of three things:

●       the principles that govern it,

●       the processes and procedures defined to give effect to those principles,

●       and the infrastructure that enables it (e.g. communication via email and telephone, reporting via Libra and Common Platform, procedure documentation via online publication of protocol, etc.).

Challenges - Organisational

Most of the difficulties we encounter spring from the same underlying issue, which is that it is challenging to ensure that the principles of Open Justice (e.g. transparency) are fully supported in a system that is procedurally decentralised and self-organising.  If we imagine that the objectives of a transparent system would be to provide:

1. all defined information,

2. in a timely manner, with,

3. consistency from court to court;

then it is essential that there be a mechanism by which this can be measured (i.e. some kind of reporting on whether all information has been provided, in a timely manner, with consistency), and that there is accountability for that system.  This is not possible in the current decentralised and self-organising model.

To illustrate this, we can consider the challenges involved in identifying the expected output from the Magistrates’ Courts that operate on any given day.  Courts are operating with locally defined policies for whether and when they provide Lists and Registers. One court told us they only provide a single version of the advanced lists by noon of the previous day, but most others provide lists well in advance and update them as the final day approaches.  In another example, some courts provide updated remand lists the night before a morning session while others have told us they will never provide lists for a bank holiday Monday, or Saturday sessions, because these are remand days.  Some courts provide the registers on a next-day basis, others roll-up the registers for multiple days and distribute them together each Friday.  In one instance, a court did not provide any registers for 15 days and then they all arrived at once - we suspect that this was due to annual leave.

This variability in procedure also applies to lower level processes, for instance, it regularly occurs that we receive multiple documents pertaining to the same court session, which contain different information about which cases are due to be heard in that session. Sometimes it can be inferred that the new document is a replacement for what was received before, other times that it is an addition to what was received before.  However, there are also times when the intent for the new documents (to either replace or add) is unclear, meaning that a journalist could not rely upon the list of cases given out within them. 

Compounding this, courts often have two different teams responsible for dissemination of Advanced Lists or Results Registers, and sometimes these are not even in the same court.  Even if a message is communicated effectively to one team, the other may not receive it.  This has meant that we have often experienced a situation where a single court is sending us all of the advance lists but none of the results registers because only one of the teams responsible has implemented the change required to add us to the distribution list.

These differences, and others like them, make it difficult for journalists to rely upon the information that is made available from multiple courts.  For instance it is very difficult to plan attendance at a court (which entails hiring photographers) with only half a day’s notice.  Significant delays (such as those outlined above) mean that journalists and the public cannot rely upon the timeliness of those documents.  This may also affect the legal privilege that attaches to contemporaneous reporting - we know of instances where it has had a chilling effect on journalists who would otherwise have published articles had the documents arrived within the timeframe adjudged to be contemporaneous.

The HMCTS Communications and Data Access Teams have worked closely with us to try to address these issues, but they often encounter the same fundamental difficulties; decentralisation means that there is no single point of contact with responsibility for the network, nor any universally defined way to communicate with the people directly responsible at the various sites for the dissemination. 

Even if it is agreed by all stakeholders that the policies around timeliness and regularity should be harmonised, the fundamental challenge remains that there are significant organisational hurdles to overcome to enable that harmonisation. 

Challenges - Volume

There are three other barriers that we would like to highlight.  The current PDF and email system is unwieldy and thus hampers journalists in correctly interpreting what is happening in the courts.  For instance, some courts regularly provide documents that are 600 pages long and can contain reports of ~900 of cases. 

This compounds the difficulty involved for any journalist to follow a case as it progresses, especially given the amount of variability attributable to adjournments, movement across courts and changes to the charges.  Given that the volume of cases is unlikely to decrease, the solution for this barrier could be technical innovation.  CDN allows all available information about a case to be viewed in one location.  This allows journalists to follow a case as it progresses without having to find and switch through all the PDFs that might contain its information.

Challenges - Press Restrictions

Under the current protocol, HMCTS need only “ensure that court registers contain details of any reporting restrictions when they are first made”[4].  It is very possible that a journalist on the email distribution list would no longer have the first instance of the restriction to refer to, given the six-month deletion rule (see below), and the variability in the processes of distributions (identified above).  There is also variability in how those press warnings are attached to case information in the documents. If HMCTS could attach standardised Press Warnings when they are first made and to all subsequent documents pertaining to the case this problem would be addressed.

Challenges - 6 Month Time Limit on Holding Information

Lastly, the current protocol demands that all information is deleted after six months.  There are two main reasons it perhaps should be reconsidered. Firstly, because of the press restrictions that need to be carried over longer than six months.  Then also because Magistrates Lists and Registers are the only source of case detail information for Crown Court cases.  Given that it is often more than six months before a case is heard in Crown Court, requiring the deletion of Magistrates Court data makes it nigh impossible for journalists to know what is being heard in the Crown Court.

It could be further argued that the Crown Courts should also make its full information available to all journalists in the same manner as the Magistrates’ Courts do; that is, they should provide the results of cases as and when they are resolved.  Currently, no results are released from the Crown Court in any systematic way.

Conclusions

We would submit that the system to support media court reporting would benefit if objectives for it could be agreed and that these would in turn allow the organisational challenges outlined above to be resolved.  We would suggest that the objective would be to provide all information, in a timely manner, with consistency from court to court, for media consumption.

Any group of solutions would necessarily leverage a mix of technological innovation and organisational change.  In order to develop solutions that are fit to support court reporting in the digital age a collaborative approach could be employed.  In this, the media and other court information consumers (like Courtsdesk News) are considered to be customers or users of the court information, and a user-oriented design framework could be used to inform both system and organisational improvements and technological solutions.  We would be pleased to offer our further evidence if invited.

October 2021