On 19th April 2022, the Ministry of Justice (MoJ) announced that, for the first time, a government-led archive of court and tribunal judgments of England and Wales will be created. It will be run by The National Archives (TNA). As a result, judgments from courts of superior record will now be available to view for free online via the Find Case Law (FCL) service on the TNA website. Currently, the service is in the early stages of development, but is expected to develop and improve over the coming months and years. Whilst the move has been welcomed as a hugely significant step for open justice, due to the rights of access to and preservation of judgments being guaranteed in primary legislation, others speculate that this could have the opposite effect – what really is the case?

What is changing?

In previous years, independent judges would send judgments directly to publishers, the biggest free publisher of which was the British and Irish Legal Information Institute (BAILII). As of the 19th April announcement, judges have been instructed to no longer distribute these judgments to publishers, but instead, directly to TNA, who will then publish the judgments via the FCL service. The obvious question, therefore, is what happens to BAILII?

The answer, theoretically, is that very little should change. BAILII states that they have received an undertaking from TNA to “provide an ongoing supply of judgments”, therefore allowing their service to continue in the way in which it has previously. It will remain a free to use service which should have the same capabilities as it previously had, albeit without the funding it had received from the MoJ.

The benefits to this switch?

There may be several positives to this shift:

• The publication and retention of judgments are now protected by primary legislation (namely, The Public Records Act 1958), meaning increased accountability and centralisation.
• The redaction of judgments will be considerably easier owing to the format in which they are being stored.
• The re-publication of judgments will be simplified under the new ‘Open Justice Licence’, making it easier for judges who will now operate exclusively under one publishing procedure as opposed to several (as was historically the case).
• There are also particular benefits in relation to the use of AI. Wider analysis of multiple cases is expected to become considerably easier, with the hope being that, in years to come, AI will be able to predict case outcomes and, therefore, potentially save significant court resources and legal costs for parties involved in litigation.
• Additionally, BAILII is sometimes criticised for being outdated, overcomplex and incomplete, particularly in relation to covering judgments from courts lower in the judicial hierarchy (limiting its utility to many users for whom such information would be useful, for example, litigants in person in the County Courts). Other, subscription-based databases may provide a more comprehensive dataset of judgments, but largely exist behind paywalls, severely limiting access to justice to those who cannot afford subscriptions. For example, out of a sample dataset of 5,408 Administrative Court judgments from 1 January 2015 to 31 December 2020 published by a subscription-based competitor to BAILII, only 55% were available to the public on BAILII. The MoJ has suggested that FCL will, in time, be more comprehensive than BAILII, including a greater number of judgments from a wider range of courts; something which, if realised, can only be a positive development from the perspective of open justice.

A newly developed, free to use, “one-stop-shop” site, designed for usability for practitioners, academics and litigants in person alike is surely, therefore, a positive development?

… But what about the drawbacks?

One comment that has arisen is that the early stage FCL service is not as easy to use or comprehensive (in terms of the number of judgments and decisions currently available) as BAILII.

Only judgments from certain courts and tribunals in England and Wales are being published on FCL. BAILII therefore continues to play an important role in publishing judgments from the remainder of the UK, Ireland, and several other territories including the commonwealth countries. Furthermore, as the database remains in development, it only currently publishes judgments from Upper Tribunals and the High Court and above, and lacks a significant number of important historical judgments (the earliest available judgments on the site date back to 2003, with only a select number of Courts’ judgments going back this far). This has the potential to create headaches for lawyers working on multi-jurisdictional matters, who would need to use FCL for more recent English and Welsh cases before the Upper Tribunals and higher Courts, but BAILII for any other relevant jurisdictions, and those who seek to rely on precedents which are unavailable due to either their age or their hearing venue. It also begs the question, if BAILII will continue to receive all the judgments it currently does, is there really a point to the creation of FCL, at great expense, whilst BAILII remains a more complete and, ultimately, more popular source?

The final consideration, and one of particular concern to some legal commentators, is the idea that under the new system the distribution of judgments will be in the hands of the government. For those commentators, this “gatekeeper function” of government in the transmission of legal judgments creates concerns around independence and access to law, potentially affecting the speed or selection of cases made available for publication. In reality, however, the judges themselves are unlikely to stay quiet if they considered that their judgments were being supressed, and public scrutiny and political pressure ought to mean these concerns are confined to the theoretical.

So is this change a positive or negative one?

The Ministry of Justice has said that, TNA 'will work with the Ministry of Justice and the Judiciary to expand coverage of what is published and made accessible to the public, including judgments from the lower courts', and no doubt the search functionality and general usability of the FCL Service will improve. However, for now it remains the case that users will likely continue to rely on both BAILII, in conjunction with FCL, to ensure comprehensive coverage of recent, together with more historic, judgments and decisions.

The only real measure of whether this change is beneficial or not will be its success in the coming months and years, as FCL beds in and becomes more comprehensive and technologically more stable. If that happens, Find Case Law has the potential to enhance open justice.