Can it be possible for HM Courts and Tribunals Service – who have responsibility for publishing court lists – to publish those same lists in an unlawful way?
Richard Taylor, a blogger and mySociety volunteer uploaded an intriguing blog post recently. Entitled Cambridge Magistrates Court Lists Obtained via Freedom of Information Request it described Richard’s request to HM Courts and Tribunals Service (HMCTS) for
…the information which would be expected to appear on the full copy of the court list in relation to appearances, hearings, trials etc. currently scheduled to be held in Cambridge Magistrate’s Court [five specified days]
HMCTS, commendably, in Richard’s words (amazingly, in mine), responded to him within six days. The disclosure was, by any standards, extraordinary. Richard had made the request using the whatdotheyknow.com portal. This service means that any disclosure made by a public authority is by default uploaded to the internet for anyone to see. What was uploaded by HMCTS included
…the identity of victims of crimes people were being charged with, including a girl under 14 who was named in relation to an indecent assault charge
As Richard points out, the anonymity of victims of alleged sexual offences is protected by law. Section 1 of the Sexual Offences (Amendment) Act 1992 (SO(A)A) provides that
neither the name nor address, and no still or moving picture, of [a victim of an alleged sexual offence] shall during that person’s lifetime…be published in England and Wales in a written publication available to the public
These necessary derogations from the principles of open justice cannot extend to complete anonymity. For obvious reasons, the name of a victim of an alleged sexual offence will need to be before a court in the event of a trial. So, the meaning of a “written publication available to the public” does not include (per s6 SO(A)A)).
an indictment or other document prepared for use in particular legal proceedings
It appears that the lists disclosed to Richard would fall into this category. However disclosure of such a document under FOIA, which is taken to be disclosure to the world at large (and, in the case of whatdotheyknow.com effectively is) would extend its “use” so far beyond those particular legal proceedings that it would undermine the whole intention of section of SO(A)A. It seems that HMCTS recognised this, because they subsequently contacted Richard and confirmed that the information was disclosed in error.
We believe the majority of the information in the Court Lists is exempt from disclosure under Section 32 (Court Records) and Section 40 (Personal Information) of the Freedom of Information Act. We also believe provision and publication of sensitive personal data may also breach The Data Protection Act.
Well, I hate to be a tell-tale, but this seems to be a tacit admission that the disclosure to Richard was an extremely serious breach of the Data Protection Act 1998 (DPA). It was also potentially in breach of SO(A)A and potentially an act of contempt under the Magistrates’ Courts Act 1980 (MCA), section 8(4) of which permits publication only of certain information relating to commital proceedings, before a trial, and the names of alleged victims certainly does not fall under that sub-section. But can a court (or at least, a court service) be in contempt of itself by digitally disclosing (publishing) to the world information which it is required otherwise to disclose publicly?
While distinction should be drawn between a “full” list, such as was inadvertently disclosed to Richard, and “noticeboard” lists, habitually stuck up outside the court room, the points raised by this incident exemplify some crucial considerations for the development of the justice system in a digital era. It seems clear that, even if a court were permitted to this or similar information, the re-publication by others would infringe one or all of the SO(A)A, DPA and MCA. What this means for the advancement of open justice, the protection of privacy rights and indeed the rehabilitation of offenders is something I hope to try to grapple with in a future post (or posts).