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.

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

Law Society statement on Ukraine

Law Society of England and Wales president I. Stephanie Boyce said:

“The Law Society stands in solidarity with the Ukrainian people, the Ukrainian National Bar Association and the Ukrainian Bar Association. We also stand with the Russian people who oppose their government’s illegal invasion of Ukraine, and lawyers who are defending the rule of law in the region.

“We condemn the actions of the Russian Federation, which are in contravention of international law. There is no doubt that these actions are a direct threat to the rule of law.

“We continue to support our members in the region at this difficult time.”

Afghan evacuees’ rights at risk

Afghan citizens evacuated to the UK last summer are facing limbo as their interim immigration papers expire in the coming weeks, the Law Society of England and Wales said today as it urged the Home Office to take immediate action to provide evidence of the rights of people the UK promised to protect.

“Refugees and asylum seekers in the UK need valid immigration status to rent a home, open a bank account or find work and access NHS treatment free of charge,” Law Society president I. Stephanie Boyce said. 

“The visa stamps given to people who arrived in the UK with Operation Pitting expire over the next few weeks. When Afghan evacuees arrived, the Home Office promised to work with them to secure their long-term UK immigration status within six months, but many still do not have the new papers they need to show they are in the UK legally when their six months are up.

“For people who were evacuated from Afghanistan in fear of their lives this omission is deeply distressing.

“Solicitors tell us they have been seeking clarity from the Home Office for months and are worried that if their clients become ‘overstayers’ by omission they may face homelessness and destitution.

“The Home Office must urgently provide every one of these people with evidence of their continued right to work, study and rent accommodation. While Afghans have been given verbal assurances by the Home Office that their leave to remain will continue, without anything to prove this people could mistakenly be made homeless, denied work or charged for NHS care.

“Government advice for this cohort has not been updated since September 2021 and even lawyers representing them are not able to access any official guidance. What is needed is clear, consistent communication so individuals and their representatives know where they stand.

“While we understand the Home Office has assisted some people who are staying in Home Office accommodation, all the people who have not yet been contacted are increasingly anxious. Afghan evacuees who are not staying in Home Office accommodation are particularly at risk and must be proactively contacted.

“The UK’s ‘Warm Welcome’ is meaningless if the government does not provide concrete assurances which could allay the fears of thousands of people and give them the legal certainty they need to begin to rebuild their lives in their new home country.”

(Law Society of England and Wales Press Release 17 Feb 2022)

Explaining ‘Lost’ Cases

Does this make sufficient sense?

At one stage many cases were published by Bailii, but withdrawn a few years later. Our systems collected and published links to these cases as they became available, but there is no easy way for us to remove them save by removing them as we come across them. 

We are doing this on a regular basis, but many remain.

The entries we have are held first in our database, and a version of that entry published to the website.

We are content to remove them. Please note that once they have been deleted from the website, it may take several days for them to disappear from caches of the site, and from search engines. This does however happen.

Forum closure

I intend to close the forum/community. It has not worked, and I think a better avenue will simply be registering users from swarb.co.uk and encouraging conversation within the davidswarbrick.co.uk site.

The facility has not attracted support, and I have never been quite comfortable that the set up works. In addition it generates many spam registrations. These take several minutes every day to get rid of, for no signficant return.

I will try to use the basic WordPress system for discussions. I am sure it will not be as good, but a basic conversation structure is all that is needed.