Case Law Archive (2) – History

The biggest question for the new case law archive is what attempt is made to cover historical cases. My own experience is that although everyone first thinks of what the most recent cases are, in reality those questions tend to be easily satisfied. The vast majority of cases for which an answer is needed are historical ones. There are historical cases on swarb.co.uk (of course), on Bailii, and on Commonlii.

The difficulty (unless resolved) for the new archive is that before Bailii, all available published resources are subject to copyright. Every case when heard is recorded, and the records are kept, but for most records are not fully transcribed and recovery would (will?) be immensely expensive.

I suspect that the mountain facing the proposed scheme of just keeping up with current case law will be enough. There has to have been some fairly rigorous directions given to courts and tribunals as to what is needed, but most such organisations will already have systems in place for supplying Bailii with what they get. Just which case law are chosen for publication / archiving will be key.

It is not always readily appreciated just how much of a history of case law we have. The earliest case on swarb.co.uk goes back to 1024. Admittedly the very early cases which survive are few in number, but it also must be recognised that many are held in a legal French language as yet unassaulted by Google. Many words in such cases simply have no proper current translation – they are words of their time referring to elements of procedure which have not now existed for three or more hundred years.

Will copyright holders allow publication of their cases in the archive?

I do not know. I suspect not. They are commercially valuable. I imagine that any company holding such rights will at least privately know that the real commercial value does indeed lie in its historical assets. People will subscribe to the All England to get the older cases in digital format. Any new case will be available on Bailii. There may be exciting but unexplored issues as to copyright ownership, but in reality the publishers should have the upper hand on this aspect. Traditionally, judgments were read out or discursive. A court reporter would listen and note down that judgment, and he would thereby acquire a copyright in what he first put into permanent form. There is a splendid argument that copyright exists only through a creative intercession, and that the last thing any lawyer wants to hear is that he is reading material created by the reporter, and not (as exactly as possible) the words of the judge – ipsissima verba. Other issue are as to the status of the judge. An employee’s words would belong to his employer, but the status of judge as employee is not one without real questions and substantial variations.

Existing old cases

Commonlii and Bailii both have old cases from the 19th century and similar. What is clear is that the more rently published cases are held to a better standard. It is easier to to extract text from the pdf files published by commonlii. It is possible that a third attempt, publishing more recently printed case law will in turn be more accessible.

I suspect, and will be happy to be proved wrong, that the new system will for the moment at least, simply charge off with new case law. It may take over the Bailii database, but it would be an utterly disastrous mistake to lose the existing Bailii resource.

Not quite back

Over the last three or so weeks I have got back to running. It isn’t fast, it isn’t far, and it isn’t pretty, but I am at least doing it three times a week.

We are still early spring with many mornings being really quite cold. After chemotherapy, I am particularly sensitive to the cold, but I am getting used to it, almost.

Latest run is at: https://www.strava.com/activities/6948605959

New Case Law Archive

There is about to be launched a formal Government Archive of british Case Law. I have not had chance to preview it, but I must and do welcome it, and hope that it manages properly to satisfy the need for case law.

I have no privileged information, so what follows is in part derived from advance publicity and in part chance discussions with my peers.

The first announced ambition was to publish everything. All cases: that simple. I understand that that ambition has properly been put to one side. Just what will be published remains to be seen. The coverage issue is as to ranges – across what courts (levels of court hearings), and whether there is to be any attempt to provide an historical coverage (old cases).

We first must look to and acknowledge the contribution made by Bailii. The British and Irish Legal Information Institute has a much better than honourable record, and in the context of the worldwide movement of Legal Information Institutes along with Austlii has led the world. Bailii’s database is universally respected and admired, and used. They have covered all higher level courts and many lower and first level courts. The expections for publication of court cases has changed substantially over time, and again and moreso over the last few years. Bailii therefore includes now employment tribunal decisions, a good number of county court and magistrates court decisions, those from the information commissioners and the first tier tribunals and employment tribunals, nominet decisions and crown court cases of various flavours from Northern Ireland. I can see why these are published, and have no personal objection, but I admit that I would omit some of these without feeling much of a loss.

Another source of decisions is the Judiciary website. They do not publish a full range of cases, but seem ti restrict their reporting to those required for modern transparency requrements with a modicum of newsworthy cases. Thus they publish many Anonymity applications, all committals for Contempt of court (I think), and assorted remarks of Crown Court judges on sentencing in noteworthy cases. There are good reasons for publishing each of these, but they are non-traditional, and would get nowhere near publication in traditional law reports without in some way carrying additional particular reasons by way of properly argued points of law.

More Later . .

When you eliminate the impossible .

. . whatever is left, however improbable, must be the truth.

So it is said (echoing directly Sherlock Holmes) in an advert for a current detective series. In logic, it is undeniable, but as a fundamental truth it is unhelpful. It acknowledges that things need not be what they seem to be (‘however improbable’) – we should challenge whatever it is that seems to suggest that whatever is left is true but improbable.

As a piece of advice it fails however because it suggests that we can generally and assuredly know ‘what is impossible’ to some higher and simpler standard.

My own view is that the assumption that we are able to know with any kind of security just what is impossible is unsafe. The question is of relevance both to those involved as detectives and as legal representatives. The lawyer’s job is exactly to take the facts as presented, and to look at those facts from all available angles to test the assumptions which have been applied to whatever goes together to make the case before them. It is not a question of twisting the facts, but it is sometimes a fine line between that and re-presenting the alleged facts.

In any event, the real point is that for the maxim to be valid, the questioner must be immensely careful not to apply different tests to the facts found impossible to those found improbable but true. When we feel the need to retest ‘what is improbable’ for possible truth, we must make the same investigation as to what was deemed impossible.

We live in a very complicated world. Facts rarely stand by themselves, and are rarely as simple as they may appear. A good lawyer should always be looking for a different angle, but should be reluctant to accept a too easy identification of what is impossible.

Alarm bells rung at UN over UK rights record

New laws are weakening rights and checks on power, the Law Society of England and Wales warned today as it submitted a report on human rights in the UK to the United Nations (UN) for its Universal Periodic Review.

The Universal Periodic Review examines human rights in each UN member state every four to five years.

Law Society president I. Stephanie Boyce said: “There has been a sea-change in the UK since our last UN review.

“The Law Society believes a succession of changes to UK law are weakening people’s ability to uphold their rights or challenge the government.

“At the same time, the UK government has shown a disregard for international agreements that protect rights, from the UN Refugee Convention to the European Convention on Human Rights.

“The government is taking a sledgehammer to a cornerstone of British justice with its proposed reforms to the Human Rights Act, making life easier for government at great cost to the nation, eroding people’s ability to enforce their rights and risking the UK’s reputation as a committed member of the international community of rights respecting nations.

“The Judicial Review and Courts Bill creates barriers to people challenging the state through the courts and giving British government bodies that act unlawfully an easier ride.

“The Nationality and Borders Bill attempts to ditch fundamental commitments we made in the United Nations Refugee Convention, creating a sub-class of refugees based solely on how they arrive in the UK, despite them needing the same protection.

“If fully enacted, these reforms will alter the landscape of human rights protections in the UK and the UK’s relationship with its international obligations, including UN human rights conventions.”

Law Society Press Release