District Court Decisions Online?

Recently David Farrar in Kiwiblog commented on the decision of the Government to step back from a provision – Clause 401 – of the Judicature Modernisation Bill requiring final decisions of the District Court to be published online. I thought I would expand on his piece.

The deleted Clause 401 reads:

(1) Every final written judgment of the court (excluding the Family Court, the Youth Court, and the Disputes Tribunal) must be published on the Internet as soon as practicable unless there is good reason not to publish the complete judgment.

(2) Good reason not to publish a judgment or part of it includes the following:

(a) non-publication is necessary because of a suppression order or statutory requirement that affects publication or continued publication:

(b)the judgment falls into a category of judgments that are of limited public value:

(c) taking into account the presumption in subsection (1) in favour of publication, a Judge nevertheless determines that the judgment or any part of it should not be published because publication or the effect of publication would be contrary to the interests of justice.

(3) In this section, final written judgment means a written decision that determines or substantially determines the outcome of any proceedings and is either—

(a) a written reserved judgment; or

(b) an oral judgment transcribed by an official transcription service.

 

I was gratified when I saw this section was to be part of the Act. It was the culmination of a process in which I had been involved since 1996 to have the decisions of all the New Zealand Courts made available online.

The proposition is not that revolutionary. In common law countries – those that have inherited or adopted the English system of justice – the decisions of the Courts interpret and develop the law. The Internet meant that the decisions of the Courts could be released from the restrictions of paper and library shelves and be available for distribution to all. As a society that holds that ignorance of the law is no excuse it seemed perverse that there should still be obstacles to knowing what the law was.

The path to publication of the decisions of the Courts was not an easy one. I won’t traverse that story here. Suffice to say there was resistance from a number of unexpected quarters and a lack of understanding of the importance of the concept of the transparent operation of the Courts.

The decisions of the appellate Courts such as the Court of Appeal and the Supreme Court are available from the Courts of New Zealand Website as well as the clunky and difficult to navigate Judicial Decisions Online (JDO) where the decisions of the High Court may be found. Decisions are also available from the excellent if underfunded and little appreciated NZLII (New Zealand Legal Information Institute) where the search capabilities are a little easier in terms of analysing results than JDO and the databases are larger.

All that remained was for the decisions of the District Court to be made available online. Having a requirement in legislation made compliance mandatory. It was going to be a large task but there were a number of alternative ways in which it could be accomplished. But  mandatory publication will now not take place.

All is not lost. The District Court recently launched its own website and selected decisions of the District Court will be made available. Upon its release

Chief District Court Judge Jan-Marie Doogue said that from now on, a Publications Unit working under an editorial board of senior judges, will select for online publication those decisions considered of high public or legal interest and which meet criteria for publication. This calendar year, the website expects to publish about 2500 decisions, rising to about 4000 next year.

That is to be applauded. But if Clause 401 had remained it would have required funding. And that seems to have been an important driver. Recently the Minister of Justice released a statement explaining why Clause 401 had been removed. I reproduce it below along with my comments and critique.

“The Justice Ministry has advised me that each year the District Court (excluding the Family Court and Youth Court) delivers 15,300 final decisions that would fall within the scope of the requirement in the Bill.

 They are made up of:

*       300 written decisions (reserved judgments), mainly delivered in the civil jurisdiction; and

*       15,000 transcribed oral decisions, including civil and criminal judgments, and sentencing notes.

 The District Court doesn’t publish its judgments online, because it does not have the judicial resource that senior courts have in the form of Clerks and other judicial staff.

This is the first problem. The publication of decisions should have been properly resourced from the beginning rather than be left to existing internal arrangements. That said, there is in existence a database of decisions available on the internal Court system where decisions are collected and indexed. This is done as decisions are transcribed either by the transcription service or Judges’ PAs.

 The sheer volume of decisions by the District Court alone make it difficult for every decision to be published, especially due to the fact 15,000 oral decisions would need to be transcribed, checked, and for each Judge to sign off on each decision before they are published.

Believe it or not a large number of decisions are transcribed and must be signed in hard copy by Judges. Included in these are decisions declining bail and sentencing decisions. If one looks at the proposed clause 401(3) the definition of a final written judgement reduced the volume quite considerably. I recall when we were discussing the publishing criteria for judgements in the early phases of the campaign for putting decisions online the test was “a final decision of a contested issue between the parties or the sentence imposed in criminal matters.” Furthermore the provisions of Clause 401(2)(a) – (c) provided a further filter. This seems to have been overlooked.

 The resourcing of staff alone to begin publishing final judgments would result in an increase of at least 10 FTE publication staff, at approximately $1 million. This does not take into consideration other staffing increases, training, overhead costs, equipment, and increases in workload. The vast majority of these decisions are also oral, meaning transcribing services would need to be resourced and serviced.

That is probably correct if it is done internally. Given that the Courts are an arm of Government I would have thought that the obligation of making law available to the people in a free and democratic society would be something that should be provided at a reasonable cost. In the overall scheme of things $1 million is a small price to pay for transparent justice.

 Considering there is essentially no precedent value (i.e. decisions do not bind the higher courts, and they are often just a straight declaration of sentence rather than reasoning) in the decisions made by the District Court, the time, effort and resource that transcribing would take would add little value to access to justice.

This is a red herring. True, the decisions of a District Court are not binding on the higher courts although they can be helpful if the issue has been considered below and needs to be critiqued on appeal or in other proceedings higher up the hierarchy. Precedent brings with it consistency, and a consistent approach has been a touchstone of our justice system. By and large, like cases should be treated alike. And so it is that the availability of District Court decisions enhances consistency. Not only do the public get a chance to see that a consistent approach has been adopted. Lawyers are able to access to database to properly advocate a position based on earlier similar outcomes thus maintaining and ensuring consistency.

I can recall that for many years counsel and law researchers have struggled with the fact that sentencing decisions of the District Court in Health and Safety prosecutions, Fisheries prosecutions and other prosecutions by Government departments have not been available so that a position may be advocated on the basis of earlier cases or clients can be advised of likely outcomes. A central database of decision would have been helpful in this regard.

Furthermore, to say that a sentencing decision is just a straight declaration of sentence rather than reasoning may happen for a run of the mill excess blood alcohol case, but the minute a judge is looking at anything more than a fine or low level community work, a complex analytical process is required involving identifying the circumstances of the offence, culpability levels, aggravating and mitigating circumstances both of the offence and the offender along with adjustments for guilty pleas, remorse and the like and stating them. All of these are very valuable in ensuring consistency of approach as appeal courts have often observed.

So to say that there is little value added to access to justice completely ignores the importance of consistency of approach in the decisions of the Courts which can be better informed by making decisions available online for the public and lawyers, rather than being closeted on an internal database.

 To argue that all 15,000 final decisions should be made online simply for the sake of it would require significant funds and resources. That would mean less money for supporting victims, putting police on the beat, and keeping our communities safe.

For the reason just articulated – consistency of approach – the decisions would not be there “simply for the sake of it”

 It’s worth noting that the judiciary have launched a new website (www.districtcourts.govt.nz<http://www.districtcourts.govt.nz>) which has started publishing judicial decisions from the District Courts. Criteria for publication in the criminal jurisdiction include sentencing notes and reserved decisions from judge-alone trials in cases of more serious offending, or cases where there has been discussion of high-level principles.

I have already commented on this. A commendable judge-led move but there are certain self-limiting factors imposed for the very reason the Minister identified earlier in her statement

All decisions resulting from proceedings brought under the Harmful Digital Communications Act will be published automatically because this is a requirement of that legislation.”

As they should be, along with all the other decisions of the District Court.

Is there an alternative way to comply with the former Clause 401? Yes there is.

Perhaps the Minister and her Department could have considered taking the online dissemination of judgments out of the hands of her Ministry and the Judiciary and, as is done in Australia and England where decisions are automatically made available to the Australasian Legal Information Institute (AUSTLII) or the British and Irish Legal Information Institute (BAILII), direct the necessary funding and the database of decision to the New Zealand Legal Information Institute (NZLII) who have established expertise in this area. The resources that would be freed up in the Ministry could be translated into funding for NZLII to provide the service. It is not hard. It has been done elsewhere. There is no need to re-invest the wheel. I have advocated such an outcome for years. Once again, an opportunity has been lost.

 

Live Streaming the High Court

The United States’ efforts to extradite Kim Dotcom and his associates from New Zealand has provided a fertile field for litigation and interpretation of the law. Issues such as the validity of search warrants and whether and to what extent there should be disclosure of information in addition to the Requesting State’s Record of the Case have been as far as the Supreme Court.

Last year the District Court conducted an Eligibility Hearing – a hearing which considers whether or not the Request for Extradition conforms with legal requirements. If so, the matter is passed on to the Minister who will make an Order for Extradition. The hearing concluded that Mr Dotcom and his associates were indeed eligible for extradition.

Unsurprisingly there has been an appeal against that decision, together with an application for judicial review and the appeal commenced before the High Court on 29 August. The case has been set down for four weeks

In yet another ground-breaking development an application to live stream the argument was made on behalf of Mr Dotcom and after argument and opposition from the United States, the application was granted, subject to conditions. The decision of Justice Gilbert can be found here.

This is the first occasion that the proceedings of the High Court have been live streamed – indeed, it is the first time that any New Zealand Court proceedings have been live streamed. There is a considerable amount of interest world-wide in the case, although that said it should be noted that the appeal is highly technical and involves lawyers putting their cases and developing their legal arguments. If you are looking for high drama this is not the place, but if you enjoy highly nuanced and carefully developed legal argument, it is certainly worth a look. The stream is on Youtube Live and the last URL is here.

Live streaming Court proceedings happens in other parts of the world. The UK Supreme Court live streams its  proceedings and archives them as well so that, as Lord Neuberger said, “justice may be seen to be done at a time that suits you.” Other appellate Courts live stream. The Ninth Circuit Federal Court of Appeals live streams argument – all part of open justice and bringing the proceedings of the Court to the people using new communications technologies.Courts such as the US Supreme Court have yet to follow.

Is this likely to become the norm in New Zealand? That is difficult to say. The In-Court Media Guidelines certainly don’t prohibit live streaming but whether or not we are going to see a live stream of a full-scale trial will depend upon a number of factors. An appellate argument involves only the lawyers. No one is giving evidence. There is no cross-examination. There are no issues of privacy or witness anonymity that could be claimed by participants – be they members of the jury or witnesses. A whole range of different factors will have to be taken into account.

Nevertheless, the decision to live stream in and of itself is significant and important. As an example of access to an arm of government – the Court in action – it is excellent and furthers the concept of open justice. It allows anyone with a computer and an internet connection anywhere to see the High Court in action conducting a hearing, minute by minute. That is a dramatic step forward in bringing the business of the Court to the people and is an example of the enabling power of the Internet – a great step forward for the New Zealand Courts.

From Theory to Practice – Software Models and Evidence for the Online Court

In the paper below I look at some of the ways in which technology may be applied to proposals for on-line Courts.

The proposals by Richard Susskind the JUSTICE paper and Lord Justice Sir Michael Briggs are based upon the availability of technical solutions to fulfil the promise inherent in the new models for resolving disputes. I emphasise that in using that phrase I envisage, as did Professor Susskind, the dispute resolution model to function within the established Court process rather than as a stand alone alternative to the Court process.

A consideration of the deployment of technology within the Court process first requires a recognition of the way in which technology can reflect or replace current processes. The Online Court proposals that have been put forward suggest significant process change but represent high level strategy. What I consider is a slightly more practical overview of some of the ways in which technology may be deployed. In addition there are issues surrounding the handling of digital evidence which will require consideration.

 

Authoritative Digitised Legislation

Introduction

The use of legislative material and, more importantly whether a court will accept it without question,Legislation is governed by statute. In certain circumstances a copy of legislation will be evidence of what was enacted by Parliament without further proof, and a court must take judicial notice of it.

Prior to the enactment of the Evidence Act 2006, the matter was covered by the Evidence Act 1908 and the Acts and Regulations Publication Act 1989. Although the provisions of the two pieces of legislation are virtually identical, the 1989 legislation did not repeal the corresponding provisions of the Evidence Act 1908. The Evidence Act 2006 remedied that problem. A clear position was contained in the Acts and Regulations Publication Act 1989 while broader and more embracing language is used in the Evidence Act 2006.

Section 28 of the Evidence Act 1908 provided that “Judicial notice shall be taken by all Courts and persons acting judicially of all Acts of Parliament.” The authoritative nature of a printed copy of legislation was governed by s 29 of the Evidence Act 1908 which provided:

(1) Every copy of any Act of Parliament or of any Imperial enactment or any Imperial subordinate legislation (as defined in section 2 of the Imperial Laws Application Act 1988), being a copy purporting to be printed or published (whether before or after the commencement of this section) under the authority of the New Zealand Government shall, unless the contrary is shown, be deemed—

(a)   To be a correct copy of that Act of Parliament, enactment, or legislation; and

(b)   To have been so printed or published.

The authoritative nature of reprinted statutes, authorised by the government, was covered by s 29A of the 1908 Act. Sections 16A–16E of the Acts and Regulations Publication Act 1989 have the same effect.

Section 141 of the Evidence Act 2006 addresses New Zealand and foreign official documents and states as follows:

(1) Subsection (2) applies to a document that purports—

(a)   to have been printed in the Gazette; or

(b)   to have been printed or published by authority of the New Zealand Government; or

(c)   to have been printed or published by the Government Printer; or

(d)   to have been printed or published by order of or under the authority of the House of Representatives.

(2) If this subsection applies, the document is presumed, unless the Judge decides otherwise, to be what it purports to be and to have been so printed and published and to have been published on the date on which it purports to have been published.

The authoritative nature of legislation, and the recognition of a copy of it presented to a court depends on whether the copy presented has been printed or published by the authority of the government, the Government Printer or by the order of or under the authority of the House of Representatives. Unless the web-based versions of the statutes (including those of commercial publishers) are “published” by the authority of the government, or fulfil the criteria set out in s 141 of the Evidence Act 2006, they should not be offered as material of which the court may take judicial notice. Note:

1.    It is not for the court to ask whether or not the copy proffered is authoritative.

2.    It is for counsel to satisfy himself or herself that what is being proffered is authoritative.

That is all about to change.

Digitised Legislation

The starting point is the nature of an official version of legislation. Once again, this is defined by statute. Section 18 of the Legislation Act 2012 states: “An official version of legislation as originally enacted or made is taken to correctly set out the text of the legislation”.

From 6 January 2014 onwards, the Chief Parliamentary Counsel will issue official electronic legislation via the New Zealand Legislation website (www.legislation.govt.nz) and may do so, as well as isue printed versions pursuant to section 17 of the Legislation Act..

Official electronic versions of legislation will be available in PDF format displaying the New Zealand coat of arms (and looking for all intents and purposes exactly like the hard copy versions readers will be familiar with). Printouts of official PDFs will be free of charge and also “official”. Users will be able to view, print and rely on the following as official:

  •  every act and legislative instrument (LI) enacted or made since 2008;
  • every reprint (subsequent version) of those acts and LIs;
  • the latest version of all principal (i.e. not amendment) acts and LIs enacted or made between 1931 and 2007, if still in force (and some earlier reprints); and
  • the latest versions of some pre-1931 Acts, e.g. the Judicature Act 1908 and Sale of Goods Act 1908(and some earlier reprints).

Prior to the digitization of the Statutes and their now official status, a printed version by an authorised publisher provided the basis for evidence of what Parliament had enacted. This relatively straightforward formula has, for many years, put the matter beyond doubt. The provisions of the various Evidence Acts and the Acts and Regulations Publication Act have recognised the preservative, disseminative and standardised qualities of print. Printed law, in this respect, has become authoritative law. But it was not always the case.

Pre-Print

In the medieval period the original text of a statute was retained as an official record but does not appear to have been the subject of widespread copying or dissemination. During much of the 13th century, for example, there was no definitive version that one could consult to determine the accuracy of one’s private copy. The official roll containing statutes was kept in Chancery but it was incomplete.

Prior to printing the copying of statutes was laborious and expensive – each copy having to be made individually – no two ever going to be exactly the same. Therefore, it was difficult to establish a canon of authentic statutes. Judges themselves did not have a current set of statues available for reference.

Because of difficulties accessing an accurate version of the text, statutes were often misquoted and in any event seem to have been consulted only sporadically. Furthermore there was little consistency in citation practices, the statute simply being referred to as such or by its initial or important words – for example Quo Warranto, The approach to the interpretation of statutes tended to be fluid and dependent upon factors that were often extraneous to the text.

For example in the 14th century Judges were often members of the King’s Council and they would have been present when a law was adopted. The written record of legislation might have mattered less than a Judge’s own recollection of what had been decided. The text would be a reminder of what had taken place. This is reflected by the statement made by a Judge to a lawyer in Aumeyes Case in 1305 “do not gloss the statute, for we understand it better than you; we made it.” when the lawyer was arguing why a statute had been enacted.

Statute law was seen as the will of the lawmaker rather than the text itself being authoritative. The textualisation of law in England was somewhat complex with linguistic issues arising from statutes that were debated in English but recorded in French.

Legislators probably did not focus on the exact text of a proposed act, since many of them may not have understood the French in which it was written. However into the sixteenth century statutes were becoming viewed as the clear words of the law maker. Professor John Baker in his Introduction to Legal History states that in the Tudor period there was a “new reverence for the written text … legislative drafting was now carried on with such skill …. that the Judges were manifestly being discouraged from the creative exegesis that they had bestowed on medieval statutes”.

Introduction of Print and the Royal Printer.

I suggest that the advent of printing of public statutes, the appointment of a specialist Royal Printer to print them was a significant element of this “new reverence”.

Print technology was introduced to England by Caxton in 1475 and the first law books were printed in 1481. It was Henry VII who saw the possibilities in print and early in his reign appointed a Stationer to the King who later became the King’s or Royal Printer.

On 5 December 1485, Peter Actors was appointed Stationer to King Henry VII. His patent was a valuable one and is the first example of a system of prerogative licensing privileges that were subsequently to be granted to printers. The grant provided Actors with

“license to import, so often as he likes, from parts beyond the sea, books printed and not printed anywhere in the kingdom and to dispose of the same by sale or otherwise, without paying customs etc. thereon and without rendering any accompt thereof.”

 Henry VII utilized print for propaganda purposes and was the first English monarch to do so  And he also recognized the importance of print for the purposes of promulgating the law. In preparation for a military campaign in France in 1492, every officer was issued with a printed copy of a booklet entitled The Ordenaunces of Warre.  It was one of the first publications to recognize the wide dissemination that the new technology allowed, the advantages that it provided in the promulgation of law, and served as a model for subsequent government publications. It also made very clear that ignorance of the law could not be claimed when material was available in print.

The way in which the purpose of putting the Ordinances in print was worded reflected a combination of the traditional means of announcing law, which was by verbal proclamation, along with greater dissemination facilitated by the technology of print.

The importance of printing and its status continued to be recognised by the Crown and the office of King’s Printer, which was not an honorary one, became a tool of Government.  The King’s Printer was granted the exclusive right to print all official publications and by 1512 Wolsey had ensured that all “Government legislation whether it concerned trade, apparel or religion, was made widely available and in an accessible and authoritative form.”

The impact of this was that the State ensured the integrity of content by identifying one particular printer to produce the content. This, therefore, restricted others in the industry from printing such material thus conflating an aspect of content with a manipulation of the industry.

The importance of an informed public improved the potential for compliance with and enforcement of the law. No one could claim ignorance of the law if the law was well publicised, available and in a form that had the imprimatur of the State. By granting a monopoly for publication of such material the State was ensuring that there was one authoritative version. This system displays a remarkable insight into the implications of the new technology. On the one hand the disseminative properties of printed material were recognised, with large numbers of identical publications potentially able to be readily spread throughout the Kingdom. On the other hand it was recognised that the new technology did not produce identical copies regardless whose press they came from. There was variation between printers not only in printing style and format but in the quality of product. By restricting publication to one printer the State could ensure that there was consistency and reliability of content.

One of the duties of the Royal Printer was to print legislative material. The qualities of print – dissemination, identical copies and a standard identical text – aided in the promulgation and communication of statutory information. Pre-print promulgation of statutes was done by sending manuscript copies of the statute of the latest Parliament or Session to the Sheriff of each county accompanied by a writ ordering him to proclaim it publicly in all the Cities and towns, at quarter sessions, markets and fairs or other occasions where people gathered together.

The public promulgation of statutes was assisted by the publication of printed broadsides. This represented a shift from the aural-oral promulgation that was the practice in the manuscript period. Broadsides allowed the material to be presented in visible and more lasting form. The broadsides could be affixed to posts and billboards. The earliest clear instance appears in 1529 and seems to have continued intermittently through the reigns of the later Tudors and the reigns of the early Stuarts.

An important consequence was that this form of extended publication and promulgation, along with the availability of hitherto hard-to-find legislative material, placed greater emphasis upon the statutes. The direction by Henry VII that the statutes be published in English gave added weight to this emphasis, although initially publication in “the vulgar tongue” fulfilled the state policy of ensuring that the subject knew the law. Print was present at a time when legislation was seen, especially by Thomas Cromwell, as a means of implementing the Henrician Reformation.

The printing work of the Royal Printers was not restricted to legal works and the privilege grew over the years. By 1577, when Christopher Barker held the patent, it extended to “Statutes, Acts of Parliament, proclamations, injunctions, bibles and testaments, service books, and all things issued by command of Parliament” either wholly or partly in English along with some specialized work.”  There were also occasions when a Royal Patent could issue to other printers for a special project even although such work might have been within the scope of the Royal Printer’s patent.

The office of the Kings Printer was distinct from the common law patent – the patent that permitted the exclusive printing of case-law and non-statutory material –  although it was another form of monopoly. The advantages of having a single reliable “printing shop” responsible for the printing of Statutes and official material are similar to those attached to the Common Law patent.

 Print vs Manuscript

Yet curiously, although the advent of print may have had an impact upon the making the law available, when it came to conflicts between the printed version of the statute and that in manuscript, there seemed little hesitation on the part of Judges to compare the two and favour the manuscript version.

In Stowell v Lord Zouche (1569) where there was an error in the printed statute of Edward I. In Vernon v Stanley & Manner (1571) the printed statute was corrected by sense and by ‘librum scriptum domini Catlyn’  In Ligeart v Wisheham (1573) the printed statute was at odds with ‘lestatute script’ and in Taverner v Lord Cromwell (1572) the French and English versions of the statutes were compared along with Rastell’s edition and the manuscript.

This exemplifies the ease with which the sixteenth century judges lived with the co-existence of manuscript and print. A printed statute was able to be challenged by a manuscript version. Print was not accorded a superior status to the manuscript version and, importantly for a consideration of Eisenstein’s premise that printing technology was an agent of change, the way in which print assumed a status superior to manuscript depended very much upon those who were using and who were expected to rely upon printed material.

Such attitudes stemming from the fluid approach to information from print and manuscript media, which was an aspect of their co-existence, demonstrates that as long as lawyers were going to accord a superior or at least equal status to manuscript material, the superiority (and ultimately authority) of print would remain in question. The printing of a statute had not yet reached the point where a printed statute in and of itself was totally authoritative. That was to come later.

The Digital Paradigm

Although legislation has been available on-line it has not until now been authoritative. Yet even although the on-line version is official there are elements that take us back to the print paradigm and the recognition that the printed version is the authoritative one. The official version may be printed out. The pdf version must have the coat of arms to be the authoritative text which will be accorded recognition by the Court. Thus, even if a Judge is referred to an on-line version it must be in pdf format with the coast of arms. It will not be enough to look at the web-based version of the statute. Strictly speaking, although the content of both the web based version and the pdf may be identical, it is the pdf that is “official” and authoritative.

This echoes some of the themes present in the early days of printed legislation – a question of acceptance of the product of the new paradigm, an attempt to provide some sort of authority by having an authorised agency responsible for the product, a co-existence with an earlier paradigm. In addition it reflects two themes which are prevalent in the shift towards a new paradigm. The first is summed up in the comment made by Marshall McLuhan in Understanding Media: The Extensions of Man where he said:

 “When faced with a totally new situation, we tend always to attach ourselves to the objects, to the flavor of the most recent past. We see the world through a rear-view mirror. We march backwards into the future.”

The second is the concept of functional equivalence which is in some respects an aspect of McLuhan’s “rear view” mirror. Functional equivalence focuses upon the content layer of the Digital Paradigm and effectively ignores the fact that its deeper layers and underlying qualities make the nature of information and its communication different from what went before. Functional equivalence can relate only to the end product and not to the inherent properties that underlie the way in which the material or information is created, stored, manipulated, re-presented and represented. Functional equivalence means that we can create a bridge between an old information technology and a new one – even although the new one is paradigmatically different from the old. Functional equivalence allows us to feel comfortable in the face of the continuing disruptive change inherent in digital technologies and, in the case of the statutes on-line gives us a reassurance of authenticity.

As Paul Levinson said in Digital McLuhan – A Guide to the Information Millenium

“A quick glance in the rear-view mirror might suggest that electronic ink is an ideal solution: it allows the convenience of paper, with the word processing and telecommunication possibilities of text on computers with screens.  But, on more careful examination, we find that we may not have been looking at not the most relevant part of an immediately past environment.  One of the great advantages of words fixed on traditional paper is indeed that they are stationery with an “A”: we have come to assume, and indeed much of our society has come to rest upon the assumption, that the words in books, magazines, and newspapers will be there for us, in exactly the way we first saw them, any time we look at them again in the future.  Thus, the stationery as stationary, the book as reliable locus, is a function as important as their convenience in comparison to text on computers.  Of course, we may in the future develop electronic modes of text that provides security and continuity of text equivalent to that on paper – modes that in effect allow the liberation of text without any diminution of its reliability – but current electronic “inks” “papers” are ink and paper only via vision in a rear-view mirror that occludes a crucial desirable component of the original.”

But perhaps one of the most significant outcomes of the digitisation of legislation is this. The Parliamentary Counsel’s Office will cease publication of annual bound volumes of legislation after the 2013 volumes are printed, and traditional hard-copy reprints after the current programme is completed. Official online legislation and print on demand will render them obsolete. What started with Henry VII with the printing of legislation will, however remain. The volumes of legislation will go but the individual copies of statutes will remain. As the Royal Printer in Henry’s day printed copies of public statutes as individual publications, Parliamentary Counsel’s Office will continue to publish booklet versions of legislation, available from Legislation Direct and from some bookshops. Plus ca change, c’est la meme chose.

Free Public Access to Law and Primary Legal Information as an Aspect of Internet Freedom.

Preface

It is serendipitous that the following piece is posted on the first anniversary of this blog. I hope that it has provided some interest, amusement and information for readers and I shall continue to post as and when I have the time and the material. I can foreshadow a three part series on hypertext linking which will be posted in the near future.

Introduction – Free Access to Law as an Aspect of Internet Freedom

 

The Rule of Law and its protection of human rights is essential to a functioning democracy. The discussion that follows addresses a critical aspect of the Rule of Law and that is the issue of the right of access to legal information. This right is a subset of the right to receive and impart information, but what is of significant importance is the nature of the information that is being imparted and received. It is information about the law – the rules that set the metes and bounds of behaviour in a society and that delineate and define the relationships between citizens and between citizens and the State.

In the print paradigm there were certain inhibitors to the communication of legal information, limited primarily by physical realities and the location of the books in which legal information was recorded. Most public libraries held a set of statutes for reference purposes. The situation regarding reported cases was different, and most sets of law reports were kept in one of the four (and latterly six) law libraries located in the four main centres and in Hamilton.

The digital paradigm has revolutionised the ability to communicate legal information. The physical and geographical inhibitors to access to legal information no longer matter. As long as one has access to a computer and an internet connection, if legal information is available on the Internet it will be accessible. But the issue is not as simple as that. The first consideration is that legal information must be available on the Internet. The second factor is that it should be freely available. One should not have to pay to access information essential to one’s rights and obligations in a functioning democracy. The third factor involves distribution or redistribution of legal information and the way that is accomplished. In this regard not only are there obligations on the part of the State but upon those who are responsible for distribution of and access to legal information.

But it is the Internet that is critical as the communications\distribution system – as an enabler of the right to impart and receive information and the subset right of access to legal information. It is for this reason that this study addresses the importance of the subset right that, in my view, is critical to an overall consideration of internet freedom, for without an understanding of the rules that govern society there can be no freedom, but rather a tyranny based on the use of law as an arcane mystery.

The study firstly examines the rationale for access to legal information, using a “law-based” approach. I then proceed to consider the opportunties provided by the Internet in the onset of the digital paradigm, and then consider the concept of access to law on-line and the development of the Free Access to Law Movement (FALM) and the principles that have developed over the years. Based on these principles a distillation of the resposibilities of the State and of redistributors are articulated, and using these principles a matrix is devoloped by which the performance of State and redistributor obligations may be measured and assessed as a part of a wider measure of the state of Internet freedom in a society.

The Rationale for Access to Legal Information.

Blackstone suggested that everyone should know the law because they were a party to its enactment in that the representatives of the community were Members of Parliament – a form of “knowledge by proxy”.  He said:

“There needing no formal promulgation to give it the force of a law, as was necessary by the civil law with regard to the Emperor’s edicts because everyman in England is, in judgment of law, party to the making of an act of Parliament, being present thereat by his representative.”[1]

It is doubtful today that Blackstone’s view would have much currency. It certainly did not with Jeremy Bentham.  He viewed the complexity and confusion of the common law as an anathema.  He considered that it was the private preserve of  “Judge & Co” – the Judges and lawyers who argued, decided and presumably understood the cases that constituted the intricate web of the common law.  Bentham considered the common law as a grim place of “dark chaos”.  As part of his detailed suggestions for reform of the law which should contribute to the fundamental premise of utilitarianism[2]  Bentham advocated the codification of law and its enactment in statutes passed by an elected Parliament.  This would replace the gradualism of common law principle.  Codification would “mark out the line of the subject’s conduct by visible directions instead of turning (him) loose into the wilds of perpetual conjecture”.  The heart of Bentham’s proposals was that the law should be freely available to all people so that the entire citizen could be aware of their rights and obligations.  The law would no longer be the captive of the priestly castes of “Judge & Co”.  It would be the domain of the community.  But even before Bentham, Hobbes wrote:

“I think it were well that every man that can read, had a statute book; for certainly no knowledge of those laws, by which men’s lives and fortunes can be brought into danger, can be too much.”[3]

In Leviathan, Hobbes wrote:

“To rule by words requires that such words be manifestly made known; for else they are no laws: for to the nature of laws belongeth a sufficient and clear promulgation, such as may take away the excuse of ignorance; which in the laws of men is but of one only kind, and that is, proclamation or promulgation by the voice of man.”[4]

Lawrence J in R v Wright said:

“The proceedings of Courts of Justice are daily published … Many of these proceedings contain no point of law, and are not published under the authority or the sanction of the Courts; but they are printed for the information of the public … though the publication of such proceedings may be to the disadvantage of the particular individual concerned, yet it is of vast importance to the public that the proceedings to the Courts of Justice should be universally known.  The general advantage to the country in having these proceedings made public, more than counterbalances the inconveniences to the private persons whose conduct may be the subject of such proceedings.  The same reasons also apply to the proceedings in Parliament: it is of advantage to the public, and even to the legislative bodies, that true accounts of their proceedings should be generally circulated.”[5]

Thomas Jefferson, in his report to the Commissioners for the University of Virginia in 1818 set out a number of principal purposes for education.  Among these was that people should be educated so that they knew their rights, so that they could exercise their rights and defend them and so they could delegate their rights to others.  Because rights are so much a part of law, and certainly were in Thomas Jefferson’s time as they are now, implicit within the Great Virginian’s statement is that people should understand and know the law and to do that they would have to have access to it.

Professor Lon L. Fuller, in The Morality of Law, set out eight different ways whereby one could fail to make law.  He was of the view that a total failure in any one of the eight directions did not simply result in a bad legal system.  It resulted in something that could not properly be called a legal system at all.  His eight principles were as follows:

1.         A failure to achieve rules at all, so that every issue must be decided on an ad hoc basis;

2,         A failure to publicise, or at least to make available to the effected party, the rules he is expected to observe;

3.         The abuse of retroactive legislation, which not only cannot itself guide action, but undercuts the integrity of rules prospective in effect, since it puts them under the threat of retrospective chain;

4.         A failure to make rules understandable;

5.         The enactment of contradictory rules; or

6.         Rules that require conduct beyond the powers of the effected party;

7.         Introducing such frequent changes in the rules that the subject cannot orient his action by them; and

8.         A failure of congruence between the rules as announced and their actual administration.

It will be observed that at least three of these principles are based upon the premise that a person is entitled to know the law.  Fuller goes on to say:

Certainly there can be no rational ground for asserting that a man can have a moral obligation to obey a legal rule that does not exist, or is kept secret from him, or that came into existence only after he acted, or was unintelligible, or was contradicted by another rule of the same system, or commanded the impossible, or changed every minute.[6]

At page 49, he said:

“Even if one man in a hundred takes the pains to inform himself concerning, say, the laws applicable to the practice of his calling, this is enough to justify the trouble taken to make the laws generally available.  This citizen at least is entitled to know, and he cannot be identified in advance.  Furthermore, in many activities men observe the law, not because they know it directly, but because they follow the pattern set by others whom they know to be better informed than themselves.  In this way knowledge of the law by a few often influences indirectly the actions of many.  The law should also be given adequate publication so that they may be subject to public criticism, including the criticism that they are the kind of law that ought not to be enacted unless their content can be effectively conveyed to those subject to them.  It is also plain that if the laws are not made readily available, there is no check against a disregard of them by those charged with their application and enforcement.  Finally, the great bulk of modern laws relate to specific forms of activity, such as carrying on particular professions or businesses; it is therefore quite immaterial that they are not known to the average citizen.  The requirement that laws be published does not rest on any such absurdity as an expectation that the dutiful citizen will sit down and read them all.”[7]

Fuller’s last comment was echoed by Russell LJ in Incorporated Council of Law Reporting for England and Wales v Attorney-General & Anor  where he said:

“There are some matters which require no proof.  The making of the law of this country is partly by statutory enactment (including therein subordinate legislation) and partly by Judicial exposition in the decision of cases brought before the Courts.  It cannot be doubted that dissemination by publication of accurate copies of statutory enactments is beneficial to the community as a whole; and this is not the less so because at least in many instance the ordinary member of the public either does not attempt to, or cannot by study, arrive at a true conclusion of their import, or because the true understanding is largely limited to persons engaged professionally or as public servants in the field of any particular enactment or otherwise interested in that field.  …  The same is to be said of the other source of our law, Judicial decisions and the reasons therefore, especially in the light of our system of precedent.  It is in my view just as beneficial to the community that reliable reports of Judicial decisions of importance in the applicability of the law to varying but probably recurrent circumstances, or demonstrating development in the law, should be published: and all the more so if the publication be supervised by those who by training are best qualified to present the essence of a decision correctly and to distinguish the ephemeral from the significant.  To state that the publication also provides many professional men with the tools of their trade does not seem to me in any way to detract from the benefit that accrues to the community from the fact that the law does not remain locked in the bosom of the Judiciary.”[8]

Fuller restricted the concept of promulgation. He was not of the view that the promulgation requirement included actual knowledge of the law’s content.

Obvious and urgent as this demand [for promulgation] seems, it must be recognized that it is subject to the marginal utility principle. It would in fact be foolish to try to educate every citizen into the full meaning of every law that might conceivably be applied to him, though Bentham was willing to go a long way in that direction. The need for this education will, of course, depend upon how far the requirements of law depart from generally shared views of right and wrong.[9]

Thus Fuller was of the view that promulgation, while necessary, did not demand that every citizen know the content of the law. Rather, the requirement for promulgation is met where it is publicised pursuant to a formalised standard, and where a person may access law that affects them. In addition, Fuller considered that the need for publication diminished where the matters addressed by the law were part of a community’s general knowledge of right and wrong.

John Finnis[10] expressed the view that promulgation was not fully achieved by the printing of official copies of enactments, decisions and precedents, but also required the existence of a professional class of lawyers whose business it is to know their way around the books and who are available to give advice to the populace without undue difficulty and expense, whilst John Rawls stated

“Unless citizens are able to know what the law is and are given a fair opportunity to take its directives into account, penal sanctions should not apply to them.”[11]

In the case of R v Christian & Ors[12] the issue of promulgation of and access to the law was addressed[13] In their decision the Court considered the principles developed by Fuller, Finnis and Rawls and concluded:

“It is our view that, despite the face value of some of these statements, in particular, those of Finnis and Rawls, none of the authors can be taken to have said that promulgation demands that the minutiae of the law be declared to every citizen. Rather, it is our view that these remarks indicate that in order to meet the requirements of the Rule of Law with regard to promulgation, governments must ensure adequate publication of the fact that law which applies to citizens exists, so that those citizens are able to know the law by accessing its content should they wish to. This interpretation of the philosophical position taken by the three theorists is the only one compatible with the fundamental legal principle that “ignorance of the law is no excuse” and cases that state that the law must be accessible and foreseeable.”[14]

Although there can be no doubt that an awareness of the minutiae of the law is not a precondition to criminal liability[15] the important issue is the matter of access to legal information in authentic form[16]. The subject should be aware of the law and have an opportunity to inform him or herself of its content. That the subject does not do so does not excuse liability for breach of the law.

The decision of the Privy Council in Lim Chin Aik v R[17] illustrates the importance of accessibility. That case was concerned with the ingredient of mens rea in delegated legislation specifically directed at the appellant which prohibited him from entering the State of Singapore. There was, however, no provision for publication of the order or for otherwise bringing it to the appellant’s attention, nor was there any evidence that he was notified of the order, or that any step had been taken to publish the order so as to bring it to his notice. The Privy Council noted[18] that the precept ignorance of the law is no excuse could not apply where there was no provision for publication “or any other provision designed to enable a man by appropriate inquiry to find out what ‘the law’ is”. The Board remarked[19] that one of the objects of the order was the expulsion of prohibited persons from Singapore, but that there was nothing that a man could do if, before the commission of the offence, there was no practical or sensible way by which he could ascertain whether he was a prohibited person or not.

Thus it is clear that one cannot have secret law.  It is a contradictory phrase.  Laws are designed to give guidance to the community.  For that to take place the community must have access to the instruments that are intended to provide that guidance.  Without promulgation couple with an opportunity for access top legal information, ignorantia legem neminen excusat would be unfair and unjust.

The Role of the Internet

The advent of digital and networking technologies, the rise in the use of computers and the availability of the internet represent a paradigm shift in the way that we communicate information. The internet coupled with the personal computer are as revolutionary a communications technology as was Gutenberg’s printing press or the telephone of Alexander Graeme Bell.

Since the mid-1990’s when the Internet became available for widespread public use, lawyers and those involved in the communication of legal information have been quick top utilize and exploit the communications advantages of the new technology.

The significance of the Internet is that it allows millions of people to access the same information from the one source at the same time.  In a sense the book that is required is never off the shelf.  It is my view that one of the alternative media available for the free access of the public to law is the Internet because of the low cost of access thereto.

The main advantages of the Internet as an information provision system can be summed up as follows. First, as long as the information is on a server it is permanent and may be an indefinite repository of information. Unlike printed material, digital content does not deteriorate. Secondly, information on the internet is available 24/7. Unlike any other medium, a website is available to everyone, whenever they desire it. Thirdly, iformation on the internet is virtually cost-free. Many ISPs allow their subscribers server space to host websites and access thereto is similarly virtually cost free. Unlike broadcast media, internet information is available on demand.

So far in this paper I have set out the rationale for why it is necessary that the law be promulgated and that citizens have access to it. It is my contention that the internet presents solutions for many of the problems that have been presented, particular in the area of access to law. The internet allows the first real opportunity to go beyond the theory of promulgation (knowing of the law) to the realisation of a citizen’s free access to the law (knowing the content of the law). Radical although the proposition may be in light of earlier jurisprudential thought, a new technology :

    1. allows the opportunity to be fulfilled
    2. presents the State with the means by which a society whose order is based upon the Rule of Law to make the rules available for minimal cost
    3. requires the State to do so.

The State may fulfil its obligation that the new technology allows by:

  1. Making the raw data of the law available – the decisions of the Courts and up-to-date legislative material in the form of:
    1. Statutory instruments
    2. Regulations
    3. Rules made by officials under delegated rule making powers

This has been accomplished by means of the Legislation On-Line site (www.legislation.govt.nz) The recently enacted Legislation Act 2012 provides for Parliamentary Counsel to make legislation available on-line and for free. In addition the Act states the the on-line version has the status of an official copy which will be recognised without question in Court

  1. Enabling free access to legal information in public libraries via the internet and by way of dedicated terminals
  2. In time further enabling free access to legal information via the internet by dedicated terminals in public buildings such as post offices, government offices to which the public has access and shopping centres or shopping malls.

At the moment some of the raw case-law data is available. The decisions of the Court of Appeal are available from the New Zealand Legal Information Institute (NZLII)[20] and the Australasian Legal Information Institute (AustLII)[21]  The decisions of the Supreme Court are available from NZLII, Austlii and from the Supreme Court[22] and Courts of New Zealand[23] websites, a most encouraging development given the difficulties that have been encountered in making the decisions of the New Zealand Courts available on-line. Since 2006 a selection of High Court decisions, along with the decisions of a number of Tribunals have been made available by NZLII.

Access to Law On-Line

Free online access to legal information is approaching maturity in some parts of the world, after two decades of development, but elsewhere is still in its early stages of development. Nowhere has it been realised fully.

Online legal information retrieval had existed, through dial-up services, since the 1970s, but free public access was unknown. In 1984 there were no free public access services.  One of many reasons was the cost of dial-up telecommunications. During the 1980s the situation got worse, as across the world governments tried to commercialise government information provision and were certainly not predisposed to offer free online services. The reductio ad absurdum was the decision of the New Zealand government to privatise its government printing service, including the only digital copy of its national legislation, which it then had to repurchase as part of the eventual creation of a free access service.

Over the 1990’s this position changed with the inception of the Cornell Legal Information Institute. Utilising (then) newly developed web browser technology the high levels of usage that their site soon achieved demonstrated that there was a public demand for access to legal information that went far beyond lawyers and law schools.

In 1995 the Australasian Legal Information Institute (AustLlI), based at two Australian law schools (UTS and UNSW) was the first to follow Cornell’s lead, and to borrow the ‘LlI’ name. By 1999 AustLlI had developed databases from all nine Australian jurisdictions covering key case law, legislation, treaties and some other content. AustLlI was the first LII to build a comprehensive national free access legal information system (Greenleaf, 2011), and it has continued to expand, exceeding 500 databases in 2012. From 2000 LexUM at the University of Montreal built the Canadian Legal Information Institute (CanLlI) in cooperation with the Canadian legal profession. It is a mark of its continued growth that in 2012 it added its one millionth full text decision. These LII’s have been joined by a number of other services which provide free access to legal information. The scope and extent of such access varies. One such site is the New Zealand Legal Information Institute (NZLii).

Is this enough? Is it sufficient that within that country there is some online access to the main current cases and legislation, for which users do not have to pay? Is the absence of end-user costs the sine qua non of ‘free access’? Greenleaf, Mowbray and Chung argue that it is not and proceed to consider the development of the principles that underpin the activities of the Free Access to Law Movement. (FALM). The FALM Declaration takes the view that its members republish legal information (for free access by users) as a matter of right, not because of some largesse of governments. This republication is the equivalent of ‘free speech’, even if from a user perspective the no-charge access to legal information could be regarded as equivalent to ‘free beer’. The authors argue that Free access to law is also similar to other aspects of free speech in that it usually has to be fought for, both against governments and against commercial interests. Free access to legal information requires that it be ‘free from monopolies’, just as free speech has to prevail over the monopolies of intellectual property in some situations before it is genuinely free. Assertions of monopoly privileges as part of the publication of legal information are a recurring threat as technologies and publishing methods change. In addition, ‘free access’ must be substantially free from surveillance.

Free Access to Law On-line has two major elements. One is the obligation of the State to ensure that there is free access to legal information, but not necessarily act as provider. The second is the criteria that define whether a provider is in fact providing free access to legal information. In the event that the State takes on the role of making the information available and acting as a provider, the two roles coalesce. An example of such coalescence may be seen in the Legislation On-Line Website.

State Obligations:

Having regard to the way in which the principles of free on-line access to legal information have developed over the years, the essential obkligations of the State in relation to free access to legal information may be stated as follows:

The obligations of the State, in relation to all primary legal materials (‘materials’), are to provide these materials to other parties to republish, without fee, in the most complete, authentic and authoritative form possible, and so that materials may be republished with their authority and integrity intact. To assist republication the State shall maintain an archive of historical materials, provide materials with neutral citations, utilising open standards, and including available metadata, and provide bulk downloading facilities (subject to local privacy laws and practices). The State should anonymise (redact) materials where that is necessary or customary for privacy protection. The State should remove impediments to use of the materials including copyright, database rights, and obstacles to admissibility. If necessary, the State should take the role of providing free access to these materials.

Provider Obligations:

An organisation provides free access to legal information if it provides to all users anonymous, free-of-charge and non-profit access to all online legal materials it provides from a jurisdiction. It should not impede any other republisher from obtaining access to the sources of the materials, and should adhere to relevant privacy laws.

An organisation provides free access to legal information if it provides to all users free-of-charge access to all its online legal materials from a jurisdiction, and does so without conflicts of interest which are adverse to maximising the quality and quantity of free access. Such conflicts of interest may arise where surveillance of access occurs, or where the method of provision is dictated by maximising support advertising or treating user information as a product. Provision of anonymous access is desirable. A non-profit provider or involvement of non-profit data sources or governance bodies in the provision of access reduces the likelihood of such conflicts. Providers should adhere to relevant privacy laws, and should not impede any other republisher from obtaining access to the sources of the materials.

Impediments such as copyright and prevention of republication apply with equal force to providers as they do the the State which makes primary legal information available. If there is to be any copyright protection it should be limited to a Creative Commons Licence with a requirement for attirubution only.

Greenleaf, Mowbray and Chung have distilled thirty free access principles from which may be developed a matrix by which free access to legal information may be measured and assessed.

  Principle Local Practice Compliance
1 All primary legal materials should be free access
2 Publicly funded secondary materials to be free access
  State Obligations    
3 State obligation to ensure free access
4 State removing impediments to/assisting republication
5 State provision of material for republication
6 State provision of material in printed form
7 Abolition of copyright in statutes and cases
8 No fees for provision to republishers
9 State to redact/anonymise cases
10 State to adopt medium neutral citation
11 State to preserve historical materials
12 State to provide authoritative online versions of laws
13 State to ensure integhrity of online version of laws
14 State to assist republication of authoritative versions
15 State to assist republication of versions with integrity
16 State to remove obstacles to admissibility of republications
17 State to use open formats and provide metadata
18 Cross jurisdictional reciprocal recognition
19 State to provide free access to knowledge based systems
20 State to provide translations and allow reproductions
21 State to develop multi-lingual access
22 Support for providers encouraged
  Provider Obligations    
23 Access should be free of charge
24 Access should be anonymous/surveillance free
25 Access should be non-profit
26 Respect for local privacy laws
27 Republishers must not impede others from obtaining materials at source
28 Local initiatives have primacy
29 Networking of materials encouraged
30 International or inter-jurisdictional co-operation

[1] W Blackstone – The Rights of Persons 1 COM 185.

[2]  Summed up in the phrase the greatest happiness for the greatest number

[3] T. Hobbes, The English Works of Thomas Hobbes of Malmesbury, A Dialogue Between a Philosopher and a student of the Common Laws of England (ed. Molesworth, London: J Bohn) 27 – 28

[4] T Hobbes, Leviathan (1651) (London: Dent & Sons, 1947) Ch 31 “Of the Kingdom of God by Nature”, para 3

[5] (1799) 8 TR 293,298; 101 ER 1396,1399

[6] L Fuller, The Morality of Law (New Haven: Yale University Press, 1967) p.39

[7] Ibid. p.49

[8] [1992] CH 73; [1971] 3 All ER 1029 at 1034

[9] Op. cit. p. 49

[10] Natural Law and Natural Rights Oxford University Press, New York, 1980

[11] A Theory of Justice Harvard University Press, Cambridge Mass 1999 at 212

[12] Pitcairn Islands Supreme Court; T37-46/2003; 24 May 2005 Full Court

[13] Ibid at paras 130 – 174

[14] Ibid at para 155

[15] Grant v Borg [1982] 2 All ER 257 (HL)

[16] R (on application of L and another) v Secretary of State for the Home Department [2003] 1 All ER 1062 at 1069

[17] [1963] AC 160

[18] Ibid. 171

[19] Ibid at 175