The Data
The events detailed have been reported by US and Yemeni government, military and intelligence officials, and by credible media, academic and other sources. Strikes include ground operations, naval attacks and airstrikes – by drone, cruise missile and conventional aircraft.

Many of the US attacks have been confirmed by senior American or Yemeni officials. However some events are only speculatively attributed to the US, or are indicative of US involvement. For example precision night-time strikes on moving vehicles, whilst often attributed to the Yemen Air Force, are more likely to be the work of US forces. We therefore class all Yemen strikes as either confirmed or possible.

As Yemen came under severe pressure during the Arab Spring and militants seized control of cities and towns in the south, the US significantly stepped up its attacks, most notablysept with drone strikes. Since mid 2011 US counter terrorism operations in Yemen have been conducted by both the Pentagon and the Central Intelligence Agency. Attacks are aimed at al Qaeda in the Arabian Peninsula and more recently, Ansar al-Sharia.

The Bureau will continue to add to its knowledge base, and welcomes input and corrections from interested parties.

Click here for our 2001-2011 Yemen data.

Click here for our 2012 Yemen data.

YEM127
January 2013
♦ 1 reported killed
In February AFP reported Adel al Abab (aka Adil al Abab, Abu al Zubair) was killed in the second of a pair of strikes in a mountainous region in the eastern Shabwa province. An al Qaeda in the Arabian Peninsula (AQAP) source told the agency: ‘A drone strike had targetted Sheikh Adel al-Abab’s vehicle but he escaped and fled to a mountainous region where a raid by another drone killed him immediately.’

AQAP’s most senior cleric according to Yemen expert Gregory Johnsen (The Last Refuge), al Abab was reportedly killed in October 2012 in Shabwa province (YEM118). He was a religious scholar at the Dawa Center in Sanaa. In a question and answer session translated and published by the International Centre for the Study of Radicalisation, al Abab revealed how AQAP used the Ansar al Shariah brand in Yemen:

The name Ansar al-Shariah is what we use to introduce ourselves in areas where we work to tell people about our work and goals, and that we are on the path of Allah.

Type of strike: Possible US drone strike
Location: Shabwa province
References: AFP, The Last Refuge, International Centre for the Study of Radicalisation

YEM128
January 4 2013
♦ 3 reported killed
At least three people were killed in a reported drone strike on a vehicle in a ‘mountainous area’ near Radaa. Among those who died was a man named by AFP as Mukbel Abbad and by al Jazeera and Xinhua as Moqbel Ebad Al Zawbah, ‘brother-in-law of Tareq al-Dahab who led the Al-Qaeda fighters in a brief January 2012 raid on Rada’. Local media said Sahr Qaid Al Dhahab had been killed. This was the fifth strike to hit Yemen in 10 days; the London Times reported the strikes were believed to target Abdulraouf al-Dahab, who was ‘instrumental in al-Qaeda’s takeover of Radaa early last year’.

The following day Reuters reported that local tribesmen demonstrated in Radaa against US drone strikes. One told the news agency that ‘seven innocent civilians’ had been killed in recent strikes. The London Times also reported that Saudi Arabian jets have participated in recent airstrikes in Yemen commonly attributed to US or Yemeni forces. However a senior member of the Saudi royal family denied this.

Type of strike: Possible US drone strike
Location: Radaa, Bayda province
References: AFP, Reuters, Xinhua, Al Jazeera, Wired, Mareb Press (Arabic), Associated Press, Reuters, Long War Journal, Reuters, London Times (£), Al Jazeera, Reuters, The National (UAE)

YEM129
January 19 2013
♦ 0 reported killed
The first of a barrage of strikes to hit central Yemen missed its target. There was some confusion over the exact details of the night’s events. According to the Yemen Observer the first strike hit a populated area called al Daleel at 7pm. Although it missed its target and caused no casualties the strike angered the local population and the provincial authorities said they expected a reaction. The following morning tribesmen blocked the road linking the province to Sanaa in protest. Xinhua reported the strike missed a vehicle in an orchard in the al Masil area of Wadi Abeeda. An official at the Criminal Investigation Unit in Marib told the agency the strike hit at 10.30pm. The strike missed a vehicle carrying four people who then had time to flee the scene reported AFP. The Yemen defence ministry reportedly confirmed the strikes hit Mareb province but would not confirm if the Yemen Air Force or US forces carried out the attacks. The Yemen Air Force has been shown to lack the technical capacity to launch precision strikes, or fly at night.

Type of strike: Possible US drone strike
Location: Wadi Abeeda, Marib province
References: Yemen Observer, AFP, Reuters, Voice of America, AFP, RFE/RL, Deutsche Welle, DPA, Xinhua, Mareb Press (Ar.)

YEM130
January 19 2013
♦ 2-4 reported killed
♦ 0-3 civilians reported killed
Several sources, Reuters among them, reported a drone destroyed the vehicle it missed in the first strike. However AFP reported the four occupants had escaped on foot after their narrow escape earlier in the evening. Associated Press, Al Jazeera and Yemen Post identified up to six possible civilian casualties in YEM130 and YEM131. And Voice of America reported three civilians and three militants were killed in the two strikes.

According to Xinhua, the strike hit half an hour after the first and killed two alleged militants who were ‘inspecting the previous strike’. But separate sources said the strike hit the vehicle 8km from the site of the first strike. Two alleged Saudi militants were killed in the strike. One was identified as Ismaeel Bin Saeed Bin Jameel. According to the Yemen Observer, he was the brother of Ali Bin Saeed, emir of the al Wadi district who died fighting alongside AQAP. Local man Raed Fad Abdullah said he was not a senior militant. It appeared the second Saudi was identified in March. AQAP declared a low level Saudi fighter was killed in a US strike in Marib. Abdullah al Ali al Suweed was killed ‘with a group of his brothers in the month of Safar 1434′. According to the Long War Journal this corresponds to December 2012 to January 2013.

AQAP also announced the death of a senior militant from Saudi Arabia. Abu al Zubeir al Qassimi was an inmate in the al Safra prison in Saudi Arabia before moving to Yemen for training. He commanded militants in Abyan province before taking command of fighters in Marib province. According to the Long War Journal al Qassimi was killed in Abyan province in an unspecified strike. However SITE Intelligence in a March 6 post said he died in Marib on an unspecified date (link unavailable). SITE also gave al Qassimi’s alias as Walid al Harbi. A Walid Jarbou’ Al-Harbi - a failed student of Qassim University – was reportedly arrested in connection to an April 2005 gun battle with Saudi security forces. He was jailed for over a year before fleeing to Yemen in 2009. He has been listed as a wanted terrorist by the Saudi ministry of interior.

Type of strike: Possible US drone strike
Location: Wadi Abeeda, Marib province
References: Yemen Observer, Associated Press, AFP, Reuters, Voice of America, Al Jazeera, AFP, RFE/RL, Deutsche Welle, DPA, Xinhua, Mareb Press (Ar.), Yemen Post, Long War Journal, SITE Intelligence Group, Saudi Gazette, Saudi Ministry of Interior

YEM131
January 19 2013
♦ 4-6 reported killed
♦ 0-4 civilians reported killed
At least two were killed in the last strike of the night, although a military vehicle stolen from the Yemen army and carrying six was reportedly destroyed. AFP initially reported that the strike killed four people from the ‘al Haytak clan, part of the Abida tribe’ without specifying if they were also al Qaeda militants. However the agency subsequently reported five alleged al Qaeda militants perished in the strike, including Hamad Hassan Ghreib (aka Amhed Bin Hassan Ali Gahreib). According to a ‘local source’ his brother Ali Bin Hassan Bin Ghurayib was a non-combatant who was killed, along with a group of militants, in a drone strike in August 2012. Angry tribesmen blocked the main road from Marib to Sanaa in protest the morning after the strike.

Type of strike: Possible US drone strike
Location: Wadi Abeeda, Marib province
References: Yemen Observer, Associated Press, AFP, Reuters, Voice of America, Al Jazeera, AFP, RFE/RL, Deutsche Welle, DPA, Xinhua, Mareb Press (Ar.), Yemen Post, Yemen Observer

YEM131a
January 20 2013
♦ 3 killed
A fourth strike was reported by the Yemen Observer. Ali al Ghulaisi, spokesman for Marib’s governor, said three alleged militants were killed when a car was destroyed in a desert area of Marib near the border with Jawf province.

Type of strike: Possible US drone strike
Location: Al Kanais, Marib province
References: Yemen Observer

YEM132
January 21 2013
♦ 2-4 killed
♦ 3 reported injured
The fourth strike in three days killed at least two men driving on the Sanaa-Marib highway. Witnesses told Reuters a US drone targeted the vehicle northeast of the capital. Security officials said three people were injured in the strike, two seriously. Ahmed al Ziadi an alleged al Qaeda commander in Marib province, died of his wounds ‘hours later‘. Ali al Ghulaisi, spokesman for the Margib governor, confirmed US drones carried out the strike, telling the Yemen Observer: ‘All killed were al Qaeda militants.’ He identified three of the dead as Ali Salih al Dawlah, Qasim Bin Saleh al Dawlah and Bandar al Sanaani, all youths. However, AFP’s unnamed source identified two of the dead as Qasem Naser Tuaiman and Ali Saleh Tuaiman. Both men were reportedly imprisoned a year before their death for joining al Qaeda. However AFP’s sources alleged they rejoined the militant group on their release. The Yemeni defence ministry said four were killed in the strike but would not say who was responsible.

Security officials said US-Yemeni counterterrorism operations would be stepped up ahead of the National Dialogue Conference – an opportunity for some time in February, for Yemenis to discuss constitutional reforms and pave the way for elections in 2014. The Yemen Army sent troops and tanks into Radaa province on the same day as the strike. ‘Hundreds of soldiers and 50 tanks‘ moved into the province amid reports that Radaa tribal leaders had persuaded the militants to leave heavily populated areas. The militants were asked to move to minimise civilian casualties from counter insurgency operations by Yemeni forces and US drone strikes. They reportedly gained the release of al Qaeda prisoners in return.

Type of action: US drone strike
Location: Nakhla, Marib province
References: Xinhua, AFP, Reuters, AFP, Associated Press, 26Sept.net, Associated Press, Yemen Post, Yemen Observer, Yemen Times

Ironically while the #US was applauding Obama’s line “A decade of war is now ending”, another drone strike had just hit #Yemen.

— نون عربية (@NoonArabia) January 21, 2013

A Twitter user highlights the timing of suspected drone strike YEM131.

YEM133
January 22 2013
♦ 3-5 killed
♦ ‘Several’ reported injured
An evening strike reportedly targeted vehicles at an alleged militant training ground, killing at least three and injuring ‘several‘. Most reports attributed the strike to US drones. However al Oulyae subsequently reported that Saudi jets carried out the strike. The strike apparently hit a few miles from the Saudi border in al Jawf. A desert area of Yemen and a hub for militants crossing between the two countries, according to the Long War Journal. An anonymous official told Xinhua:

A Saudi agent facilitates the fresh US airstrike on two vehicles carrying important commanders of al-Qaida in the Arabian Peninsula.’

And earlier in January The London Times reported Royal Saudi Air Force had launched a number of strikes against militant targets in Yemen. Witnesses reported there were three burnt bodies left after the strike and told AFP that unidentified vehicles sped away from the scene. A local official said:

The strike targeted a gathering of al Qaeda members who had made the area a center for training. One of the cars was hit and everyone inside was killed…the others fled.’

The bodies had not been identified, the official added.

Type of strike: Possible US drone strike
Location: Al Boka, al Jawf province
References: Associated Press, AFP, Reuters, Long War Journal, Xinhua, KUNA, Al Oulyae (Ar), Associated Press, Aden al Ghad (Ar), 26Sept.net (Ar)

YEM134
January 23 2013
♦ 4-7 killed
♦ 2 civilians reported killed
Toyota Hilux according to local media. The vehicle was reportedly ‘totally destroyed‘ and the bodies burnt beyond recognition. Casualty reports have varied but a clear picture of the strike emerged in the months after the attack.

In the immediate aftermath Yemeni media named five of the dead as: Salem Mohsen Jamel, Ali Mohammed Jamel, Mohsem Mohsen Jamel and Al Nashiri. Rabae Laheb (aka Rabiee Lahib) also died, despite being reported dead in November 2012 (YEM122). He was said to be from the area and the target of the strike. Two of the alleged militants were reportedly unidentified. However three days after the strike a report claimed that five perished in the attack and one was a civilian. ‘Khawalan locals‘ said four unnamed alleged militants paid a Khawalan man to drive them to Sanaa. The tribesmen protested by blocking the main road linking Marib and Sanaa. The alleged AQAP operatives came from Marib and paid Saleem Muhammed Al Qawili 50,000 Yemeni Rials (£150). The strike hit at 8pm, approximately 20 miles southeast of the capital. And reportedly 10 minutes drive from Yemen’s largest arms market.

The destroyed vehicle (Yemen Observer)

A trio of human rights groups investigated the attack in subsequent months. They submitted evidence to an April 2013 Senate Judiciary Subcommittee hearing. They reported four passengers were killed in the strike, two of them civilians. The driver Salim Hussayn Ahmad Jamil, 20 or 22, was a literature student who freelanced as a taxi driver. He was killed along with one of his relatives Ali Ali Salih al Qawili, 33. They were reportedly stopped by two unidentified men who asked to pay them for a ride. The Ministry of Interior confirmed Ali Ali Salih was among the dead and had been a school teacher. And his brother gave investigators his attendance slip showing he had been teaching on the day of the strike.

Swedish journalists visited the scene of the strike on February 23 2013 and found the ground was ‘still black with ashes on the spot where the car exploded’. Qalil Lahib, ‘a relative of one of the dead‘, told the journalists all four men in the car were blown to pieces. He spoke ‘while picking up bits of cloth and tiny pieces of human bone and tissue from the ground’. And a second man reportedly showed the reporters a piece of Hellfire missile left from the strike. Experts from the Stockholm International Peace Research Institute confirmed the fragments were from a Hellfire. The Swedish journalists named the four killed in the strike as Salim Hussayn Ahmad Jamil, Ali Ali Salih al Qawili, Rabee Hamoud Lahib and Naji Ali Saad. The journalists saw ‘a document from the Yemeni Interior Ministry written after the attack’ which said ‘the teacher and the student were completely innocent. They were not suspected of any crime nor linked to any terror organisation.’ The government also offered compensation to the families which they disgustedly rejected. Lahib and Saad were reportedly the probable targets of the strike. But Lahib ‘lived in a village just an hour’s drive from the capital Sanaa, he was a neighbour to some of the country’s top politicians.’ He was a member of the village council and ‘travelled to the capital Sanaa every other day, passing several military checkpoints on the way’. An unnamed relative asked: ‘If they suspected him of any crime, why didn’t they seize him and charge him?’

Type of strike: Possible US drone strike
Type of action: US drone strike
Location: Khawlan, Sanaa province
References: Associated Press, Reuters, AFP, CNN, Mareb Press (Ar), Xinhua, Barakish (Ar), Al Arabiya/AFP, Al Oulyae (Ar), Yemen Observer, Submission to US Senate subcommittee, Sverigse Radio

YEM135
January 23 2013
♦ 2-4 killed
♦ 0-2 children reported killed
♦ 0-3 reported wounded
A second possible drone strike of the day killed two or four people according to conflicting media reports. The Los Angeles Times reported the strike hit two motorcycles – its intended target – and killing the alleged militants. However anonymous sources gave a contradictory account to Xinhua. They said the strike missed the bikes, hitting a house belonging to Abdu Mohammed al-Jarrah. Two of his children were reportedly killed and three more family members injured. And Yemeni media outlets al Oulyae and Barakish muddied the water still further. They reported one or two people were killed in the house and two on a motorcycle near the house. According to al Oulyae, a US drone fired two missiles. The first killed two motorcyclists and the second hit al Jarrah’s house, killing one son of Jebran Abdu al Jarrah and seriously injuring a second. Ahmed Ali al Mansi was also seriously injured in the strike which hit at 8.30pm – half an hour after the Khawlan strike (YEM134). Earlier in the day the province’s police chief narrowly escaped assassination when a bomb attached to his car exploded, killing his bodyguard.

Reports of civilian casualties emerged on the day the UN launched an investigation into civilian casualties form and the identity of alleged militants killed in drone strikes. UN Special Rapporteur for war crimes Ben Emmerson QC will investigate CIA and Pentagon strikes in Yemen, Pakistan and Somalia as well as operations in Afghanistan. The team will also look at drone strikes by US and UK forces in Afghanistan, and by Israel in the Occupied Territories. One area the inquiry is expected to examine is the deliberate targeting of rescuers and funeral-goers by the CIA in Pakistan, as revealed in an investigation by the Bureau for the Sunday Times.

Type of strike: Possible US drone strike
Location: Qayfa, al Bayda province
References: Los Angeles Times, Xinhua, Barakish (Ar), Al Oulyae (Ar)

YEM136
April 17 2013
♦ 4-5 killed
Five alleged al Qaeda militants were killed in the first US drone strike in almost three months. An alleged al Qaeda leader Hamid al Radami (aka Hammed al Masea Meftah, Hamed Radman, Hamid Radman al Manea) was killed. A Yemeni defence ministry website named the other four dead as Mukram Ali Ahmed Hamoud al Haj, Najem Addin Ali Abdullah al Raai, Ghazi Hamoud al Imad and Ismael al Magdishi.

Hamid al Rademi (Twitter)

One source said al Imad was injured in the strike and died of his wounds, reportedly because would-be rescuers were too afraid of a follow-up strike to come to his aid. Associated Press reported four alleged AQAP militants were killed in the first strike on a vehicle and al Radami was killed in the second strike on his house. However according to AFP all five were killed as they drove to al Radami house. A witness said drones were still in the sky over the village and that they had been there for three days.

Al Radami was an influential al Qaeda recruiter according to one unnamed intelligence official. He reportedly founded an AQAP cell in the area in 2011. An interior ministry official told Xinhua: ‘[The five] were all under surveillance since they left al Radami’s house few minutes before the airstrike.’ The official said the strike ‘was a joint military operation between Yemeni, US and Saudi intelligence services.’ The area of Damar province where the strike hit was labelled Yemen’s Tora Bora by blogger and journalist Nasser Arrabyee. He said al Radami ‘was almost the absolute ruler of Wesab Aali and neighboring areas’. He enjoyed significant authority in the area, Arrabyee said:

He was not only a local commander of Al-Qaeda; he was the police chief, the judge, the minister of water, education, health and everything else, for the people of Wessab’

A local security official who knew al Radami told Arrabyee: ‘We could have easily arrested him without single shot, but no one told us to do so’ because Yemeni intelligence were afraid of Radami and his supporters. The government could have arrested al Rademi, Arrabyee wrote. They did not for fear of retaliation, not just from relatives ‘but also in fear of retaliation from other tribesmen’.

Journalist and activist Farea al Muslimi, a native of Wessab, contested the depiction of al Radami as an al Qaeda commander, although he also reported the view that al Rademi could easily have been arrested. Al Muslimi posted updates to Twitter from Sanaa as information came to him from friends and family in Wessab. And he said most people he spoke to said al Radami was not a part of AQAP.

I was so happy the last three months that US Strike drones were stopped in #Yemen. Didn’t know they will relaunch to my village.!
— Farea Al-muslimi (@almuslimi) April 17, 2013

Writing in al Monitor, al Muslimi said al Radami had arrived in the village in 2011 with a group of people. He had allegedly served time in prison for murder. But the police told suspicious villagers they should not be concerned by his presence. He gained legitimacy and power with patronage from the local authorities and security services. Both al Radami and al Haj had reportedly served in the Yemeni army. Al Radami lived less than a kilometer from a ‘government headquarters’ and a couple of hours from Sanaa. He was reportedly traveling in convoy with the general secretary of the local council with the politician in the car behind al Radami’s when the strike hit. Al Muslimi wrote:

In an area like Wessab, there is nothing easier than capturing a man like al-Radmi. Two police officers would have been more than capable of arresting him.

Type of action: US drone strike
Location: Wessab al Ali, Damar province
References: Associated Press, Reuters, AAP, Twitter, Xinhua, AFP, 26sep.net (Ar), al Oulaye (Ar), Barakish (Ar), Almasdar Online (Ar), al Monitor, Yemen Post, Yemen Post, Nasser Arrabyee (blog), al Majalla,

YEM137
April 21 2013
♦ 2 killed
♦ 2-3 injured
A dawn strike on a house in Marib province reportedly killed two alleged al Qaeda militants and wounded up to three others. Local media reported a Saudi and an Egyptian were killed while a woman and child were injured. An unnamed security official told AFP the strike destroyed a cache of weapons being stored at the house, while Reuters reported weapons were found at the site. Local press quoted eyewitnesses as saying the strike also destroyed two cars and named the owner of the house as bin Masood. An unnamed Yemeni security official and eyewitnesses told reporters the strike was carried out by a drone, and locals reported seeing drones flying overhead the previous day.

Hours after the strike, two soldiers and one alleged militant died in an al Qaeda attack on a checkpoint in the area, AP and AFP reported. The interior ministry said in a statement the attack was ‘in apparent revenge to the earlier drone strike’ and added:

Five al-Qaida gunmen on board a car carried out a surprise attack on a military checkpoint of the 3rd Infantry Brigade in a road close to the earlier drone strike site, killing two soldiers and wounding seven others.”

Type of strike: Possible US drone strike
Location: Wadi Abida or Wadi Adeeda, Marib province
References: Associated Press, AFP, Reuters, Long War Journal, Xinhua, Mareb Press (Arabic), Deutsche Welle (Agencies), al Oulaye

Yemeni journalist and activist Farea al Muslimi testifying before a subcommittee of the Senate Judiciary Committee on April 23 2013. He had been scheduled to address the committee before a drone strike killed five men in his home village of Wessab (YEM136).

YEM138
May 18 2013
♦ 4-9 killed
♦ Some reported wounded
A possible US drone strike hit a vehicle killing at least four people. The target was reportedly a truck filled with explosives. The dead were allegedly militants although a ‘local dignitary‘ told AFP he could not say whether the four ‘were Islamist militants’. According to one report, two of the dead were ‘Arabs’. And a tribal sources told local media reported the strike killed nine people. A senior leader, Jalal Balaabed (aka Jalal Bl’eed, Talal bin Aidi), was reportedly killed in the attack. He was said to have been al Qaeda’s commander in Abyan’s capital, Zinjibar, when the militant group controlled the province in 2011 and 2012. However al Mahfad district’s security chief Colonel Ahmed al Rab’i said: ‘We don’t have sufficient information to either assert or deny Bl’eed’s death.’ And Al Khader Abdulla, a leader of a local state-backed civilian militia, said Bl’eed’s family denied his death in the attack.

The strike hit to the north of Jaar, an area previously dominated by al Qaeda who took and held swathes of southern and central Yemen in 2011. They were driven out by Yemeni troops with US air support in 2012. The attack came before dawn indicating US forces were responsible. The Yemen Air Force has been called ‘barely functional‘ and in 2012 President Hadi declared it incapable of flying at night, let alone launching precision strikes. On May 13 a Yemeni Su-22 fighter-bomber exploded in mid-air during a training flight over Sanaa, killing the pilot.

Type of strike: Possible US drone strike
Location: Al Mahfad region, Abyan province
References: AFP, Associated Press, al Masdar Online (Ar), Reuters, Australian Associated Press, ANI, Xinhua, Yemen Times, Aden Post (Ar), Aden al Ghad (Ar), Mareb Press (Ar)

YEM138a
May 18 2013
♦ 0 reported killed
♦ 6 reported injured

A single source reported three strikes hit Abyan province overnight. There were no reported deaths in the second attack though six people were reported injured.

Type of strike: Airstrike, possible US drone strike
Location: Al Hadha, Abyan Province
References: Mareb Press (Ar)

YEM138b
May 18 2013
♦ 4 reported killed

The third possible strike destroyed a vehicle carrying weapons, according to local media outlet Mareb Press. Four alleged militants were reportedly killed.

Type of strike: Airstrike, possible US drone strike
Location: Wadi Dhaia, Abyan Province
References: Mareb Press (Ar)

YEM139
May 20 2013
♦ 2 killed
The second strike in three days killed two men in central Yemen. Two alleged al Qaeda members were killed ‘as they left a farm on a motorbike’ according to Yemen’s defence ministry website. It named the dead as Abd Rabbo Mokbal Mohammed Jarallah al Zouba and Abbad Mossad Abbad Khobzi. Yemeni media reported it could not independently verify their connection to al Qaeda. A Yemeni official did not tell Reuters who was behind the attack however a precision strike at dawn on a moving vehicle would appear to have been beyond Yemen’s ’barely functional‘ air force that President Hadi has said was incapable of flying, let alone striking, at night. On May 13 a Yemeni Su-22 fighter-bomber exploded in mid-air during a training flight over Sanaa, killing the pilot and injuring as many as 22 people on the ground.

Type of strike: Possible US drone strike
Location: Radaa, al Bayda province
References: Reuters, AFP, al Masdar Online (Ar), Marib Press (Ar), News Yemen (Ar), Associated Press, Yemen Post, Xinhua

Emma Slater picked up the New Journalist of the Year prize at the Press Gazette’s inaugural British Journalism Awards last night for work she had done at the Bureau.

Ms Slater’s winning investigations, all projects she initiated and worked on at the Bureau, included a study into drone strikes in Yemen, published in the  The Telegraph and Sydney Morning Herald, an analysis of Iranian TV station Press TV – accused of faking reports of Somalia drone strikes which ran in The Guardian, and a special report into Supergrass deals in Northern Ireland which was published in The Independent and became the basis of a programme for BBC Panorama.

The award was open to journalists with less than three years experience. Other short-listed journalists included entrants from the Times, Daily Telegraph, the Independent and the Mail on Sunday.

On announcing her win the judges described Ms Slater as a ‘big issue journalist’. They said, ‘Emma’s story was all about big stories and big targets.

‘Her piece in The Independent on the return of the supergrass was simply written, but very well written dealing with a complicated story.’

Related article: The Bureau in the running for 4 British Journalism Awards

Ms Slater joined the Bureau after completing her masters degree in investigative journalism at City University in 2009 and worked for the Bureau for over two years on stories on drones, NHS contracts, the Iraq war logs and police supergrass deals.

Of Ms Slater’s achievements the Bureau’s Rachel Oldroyd said: ‘This is an extremely well deserved award for Emma.

Emma Slater

‘Emma is a tenacious journalist with a keen eye for a story. While at the Bureau she showed diligence and flair in everything she set her mind to. It is a credit to her journalism that her stories were widely published including in the Independent, the Telegraph and by the BBC.’

Emma told us: ‘I am absolutely thrilled and honoured to have won the New Journalist of the Year award.

‘I have been privileged to work with some fantastic journalists during the past year, and on some very important stories: in particular, the Bureau’s Chris Woods’ Covert Drone War project.

‘The award is mostly down to guidance, encouragement and help from Iain Overton and Rachel Oldroyd at the Bureau, and Stephen Scott at the BBC.’

Emma is currently working for October Films.

The Awards

The awards, hosted by the Press Gazette Editor Dominic Ponsford, set out to ‘celebrate and promote great journalism which is both interesting to the public AND in the public interest’.

Sunday Times chief sports writer David Walsh claimed a double win, picking up both the Sports Journalist of the Year and Journalist of the Year prizes.

Judges praised Walsh for his 13-year investigation into Lance Armstrong, which exposed the cyclist as a drugs cheat and led to him being stripped of his seven Tour De France victories.

The ceremony concluded with a moving tribute to Marie Colvin, the Sunday Times journalist who was killed in Syria alongside photographer Remi Ochlik in February this year. Photographer Paul Conroy who was seriously wounded in the attack that killed Colvin, collected the Special Award in her honour.

For a full list of the evening’s winners click here.

The Trustees of the Bureau of Investigative Journalism have issued the following statement:

The Bureau of Investigative Journalism has been criticised over its alleged involvement in a Newsnight report that led to false imputations against Lord McAlpine.

The Trustees of the Bureau have conducted a thorough investigation into the nature of that involvement, and are satisfied that the Bureau was not itself directly responsible for the content of the programme, which was at all times controlled, edited and lawyered by the BBC. However the Trustees consider that a serious mistake was made in agreeing to the secondment of a member of its staff to the BBC, without retaining the necessary degree of editorial control, and are taking action to ensure this does not happen again. It is clear that there was a failure within the Bureau of editorial and managerial controls and the surveillance thereof by the Trustees. For this the Trustees accept responsibility and add their regrets for these failings.

1. In normal circumstances, a story being developed by the Bureau would have been discussed with its very experienced Editorial Advisory Board. The Managing Editor normally summarised active projects for the board once a month and often consulted the EAB chair more frequently. That Board met on October 24 with the editor as, later in the day, did the Trustees. There was no mention of any story related to child abuse, and the two bodies were unaware of any involvement by a Bureau employee until reports began to circulate at midday about the Newsnight story in question which was to be transmitted that evening on November 2.

2. The programme on that evening was introduced by Gavin Esler as follows:

‘Angus Stickler from the Bureau of Investigative Journalism, who has been covering what went on at these homes for more than a decade for the BBC, has this report…’

Later, the BBC said: ‘This investigation has been carried out with Angus Stickler from the Bureau of Investigative Journalism”.

3. Mr Stickler had indeed, prior to his employment with the Bureau, spent many years as a BBC employee covering in particular the Waterhouse inquiry into Welsh care homes. He had not been involved in that story, or in any child abuse investigation, while working for the Bureau and neither had any of its employees. However, he was well-known to be an expert on the issue and to have many records and contacts relating to his coverage of the Waterhouse inquiry. On October 25 he was emailed by a senior contact and old colleague at the BBC who referred to allegations Tom Watson MP had made in the House of Commons on the day before. Mr Stickler said that he had a great deal of information, and he was advised to relay this to contacts he still maintained in News. Liz Gibbons, acting Deputy Editor of Newsnight, discussed a possible story with him over the next few days. It was agreed that he would be seconded to work for Newsnight and a fee of £3,250 was agreed, during which he would assist with a programme over which the BBC would (and did) have complete editorial and legal control.

4. The Trustees consider that it was a serious mistake to allow the secondment of Mr Stickler on these terms, to help make a programme in which he would be identified as a Bureau employee but over which the Bureau would have no control. The subject matter was not of the kind that the Bureau had been set up to investigate.

5. The Trustees are satisfied, however, that Mr Stickler did not take to the BBC any information, notes or records belonging to or developed at the Bureau. All his information on the child abuse inquiry had been acquired years earlier, when he was employed by the BBC. His involvement in the course of the Newsnight programme had very little connection with the Bureau; which was not contacted for any assistance or editorial advice during the making of the programme.

6. Iain Overton, the editor of the Bureau, was aware of Mr Stickler’s secondment and of the nature of the Newsnight programme. The Trustees consider that he made a serious error of judgment, and risked the reputation of the Bureau, when he tweeted about the programme on the day of its transmission, both by exaggerating the Bureau’s role in the story and by releasing information (that was itself wrong) prematurely.

7. The editorial, ethical and legal issues raised by the programme are currently the subject of an inquiry set up by the BBC into the way it was made. There appear to have been serious failures of professional standards in its reporting and editing, but in fairness judgment on the competence of those who made it should await the facts established by the inquiry.

8. The Trustees have concluded that Mr Stickler was seconded to the BBC pursuant to an agreement whereby they paid for his secondment to help make a programme over which the BBC had complete control and which was subject to editing, vetting and direction by their lawyers and editors. The Bureau had no responsibility for the making or transmission of the programme.

9. That said, the Bureau’s decision to allow Mr Stickler’s secondment on these terms was a serious mistake. The Trustees will put protocols in place to ensure that it does not happen again. All such decisions will have to be referred to the Editorial Advisory Board, with reference to the Trustees themselves in any case of doubt.

10. The Trustees are satisfied that throughout these events, no other member of the editorial team, other than Mr Overton and Mr Stickler was involved with the story in any way. As has been reported earlier, Mr Overton has resigned.

11. The Trustees intend to publish the full narrative of events and evidence when the BBC has completed their inquiry so as not to prejudice disciplinary matters relating to any BBC staff involved.

12. The Trustees have already apologised to Lord McAlpine, which they repeat wholeheartedly. They further express their personal regret and disappointment with the Bureau’s involvement in recent events.

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The Central Intelligence Agency (CIA) usually gets all the credit for the first US drone targeted killing beyond the conventional battlefield.

But it was the military which gave the final go-ahead to kill on November 3 2002.

Lt General Michael DeLong was at Centcom headquarters in Tampa, Florida when news came in that the CIA had found its target. The deputy commander made his way down to the UAV Room, showing live video feeds from a CIA Predator high above Marib province in Yemen.

The armed drone was tracking an SUV on the move. The six terrorist suspects inside were unaware that a decision had already been made to kill them.

Interviewed by PBS, DeLong later recalled speaking by phone with CIA Director George Tenet as he watched the video wall:

‘Tenet goes “You going to make the call?” And I said, “I’ll make the call.”  He says, “This SUV over here is the one that has Ali in it.”  I said, “OK, fine.” You know, “Shoot him.” They lined it up and shot it.’

Eight thousand miles away and moments later, six alleged terrorists were dead. Among them was a US citizen.

‘Orchestrator’ killed
The media carried detailed accounts of the ‘secret’ attack within days. Yemen’s government, which had co-operated on the strike, also released the names of the six men killed, including that of US citizen Kemal Darwish.

Concerns he had been deliberately targeted were dismissed, as it was reported the intended CIA target was Qa’id Salim Sinan al-Harithi, al Qaeda’s ‘orchestrator’ of the lethal attack on the USS Cole.

As the New York Times noted at the time, ‘Mr. Harethi was not on the FBI’s list of the 22-most-wanted terrorist fugitives in the world,’ and added that ’although investigators wanted to question Mr. Harethi about the Cole bombing, the CIA did not consult law enforcement officials before the Yemeni operation.’

A secret US cable, dated a fortnight prior to the strike, also shows that Yemen’s government had already incarcerated more than a dozen men wanted in connection with the Cole bombing. At least one of them, Fahd al Quso, was killed in a subsequent US drone strike.

Questions remain about how much the CIA and Centcom actually knew about the presence of a US citizen that day.

When assistant US defense secretary Paul Wolfowitz openly discussed the strike with CNN on November 5, he noted only that a ‘successful tactical operation [has] gotten rid of somebody dangerous.’ It would be many years before senior officials would again openly acknowledge the covert drones project.

No inevitability
The way had been cleared for the November 2002 killings months earlier, when President Bush lifted a 25-year ban on US assassinations just after 9/11.

He later wrote that ‘George [Tenet] proposed that I grant broader authority for covert actions, including permission for the CIA to kill or capture al Qaeda operatives without asking for my sign-off each time. I decided to grant the request.’

Since then, under both Bush and Obama, the US has carried out targeted killings (or extrajudicial executions according to UN experts) using  conventional aircraft and helicopter strikes; cruise missiles; and even naval bombardments.

Yet the drone remains the US’s preferred method of killing. The Bureau has identified a minimum of 2,800 (and as many as 4,100) killed in covert US drone strikes over the past ten years. What began as an occasional tactic has, over time, morphed into an industrialised killing process.

Every confirmed US drone strike in Pakistan, Yemen and Somalia recorded 2002-2012.

There was no inevitability to this when the strikes began. Time magazine opined in 2002 that covert drone attacks were ‘unlikely to become a norm.’ And in the early years of the programme this was true. The next covert drone strike took place in Pakistan in June 2004, followed by a further strike 11 months later.

Yet slowly, surely, the United States has come to depend on its drone killing programme. By Obama’s presidency drone use against alleged militants was sometimes daily. Six times more covert strikes have hit Pakistan under Barack Obama than under George W Bush. And as the Bureau’s work shows, when known strikes in Yemen, Somalia and Pakistan are added together, they reveal a growing dependence upon covert drone killings.

Recent reports show that the US is now formalising the drone killing project. Some insiders talk of a decade or more of killing to come, with Mitt Romney noting that he would continue the policy if elected.

In Washington at least, a decade of targeted killings of alleged terror suspects appears to have normalised the process.

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Yunus Rahmatullah, a Pakistani citizen, was handed to the US authorities by the SAS in February 2004, although the British government denied any involvement in rendition operations at the time.

In 2009, Defence Secretary John Hutton confirmed to Parliament that British forces had captured two men in Iraq, one of whom turned out to be Mr Rahmatullah, and passed them to the US.

Without the knowledge of the British authorities, the Pakistani national was then transferred to the Bagram dentition facility, an American airbase in Afghanistan that has been heavily criticized for alleged torture and prisoner abuse.

Today, the Supreme Court ruled that ‘the, presumably forcible, transfer of Mr Rahmatullah from Iraq to Afghanistan is, at least prima facie, a breach of article 49 [of the fourth Geneva Convention].  On that account alone, his continued detention post-transfer is unlawful.’

However, the court also decided that the British government does not need to take further action at present to secure Mr Rahmatullah’s release.

The Court of Appeal had previously ordered a writ of habeas corpus – the ancient British legal right to be charged or released from arbitrary detention – to be issued in order to secure his release.

However, the US authorities responded to request for with a letter stating that it considered the Pakistani government to be a more suitable interlocutor on the matter. The court decided that this was a sufficient response to the writ of habeas corpus and that was the end of the matter.

Today’s case involved legal challenges to the judgment from both sides. Home Secretary Theresa May was appealing the decision compelling the British authorities to request Mr Rahmatullah’s release, while the detainee’s legal team challenged the decision that the American response was sufficient to demonstrate that the UK could not secure his freedom. Both appeals were dismissed.

The ruling was described as having ‘huge ramifications’ by Clive Stafford Smith, Director of Reprieve.

‘If the US has ‘dishonoured’ its commitment to the UK in this case for the first time in 150 years, and continues to violate law as basic as the Geneva Conventions, this also throws other extradition agreements with the UK into doubt,’ he said.

The British and American authorities are signatories to a diplomatic agreement known as a Memorandum of Understanding (MOU) that sets the terms for the transfer of prisoners from Iraq. Although the accord is not legally  binding, it states that this can only occur with US and UK agreement.

As a joint investigation by The Bureau and New Statesman revealed last year, the existence of an MOU can mean little in practice.

UN Special Rapporteur on Torture Juan Méndez agrees. ‘Diplomatic assurances do not relieve the sending countries of their state responsibility for having committed a serious breach of an international obligation. [MOUs] are utterly meaningless if the receiving country is known to engage in a pattern and practice of torture’.

However, Lord Kerr reaffirmed in today’s ruling that the British courts consider MOUs as promises to be taken seriously: ‘the fact that [this] MOU was not legally binding does not reduce its significance. It provided the essential basis of control for the UK authorities over prisoners who had been handed over to the US.’

A British lawyer is concerned that South African police are jeopardising an inquiry into the massacre of miners by intimidating key witnesses.

He claims that witnesses to the shooting of 34 striking miners at the Lonmin mine in Marikana are being arrested before giving evidence, compromising the Farlam Commission, the body set up to investigate the violence of August 16.

Law-firm partner James Nichol, one of the lawyers representing the miners and their families, spoke to the Bureau of Investigative Journalism about his concerns and called for British legal observers to oversee the inquiry into the police crack-down.

‘The police have started arresting strike leaders with no particular charges, or under the pretext of “mysterious murders”‘, said Nichol, a partner in TV Edwards LLP law firm, who is working pro-bono in South Africa helping to represent 26 families of the men killed at Marikana. ‘These are men that would have been witnesses to the commission,’ Nichol explained.

Four miners due to testify at the commission were arrested on Tuesday, after attending the commission as observers.

Zamikhaya Ndude, Sithembele Sohadi, Loyiso Mtsheketshe and Anele Kola, all former strike leaders, were traveling back from the  proceedings when their taxi was stopped by police and the men were arrested on suspicion of murders that have occurred since the police shootings on August 16th.

Witnesses report that the men were removed from the taxi they were travelling in, hooded and told not to speak, or they would be shot.

According to Teboho Mosikili, an attorney at the Socio-Economic Rights Institute of South Africa (Seri), the arrests came on the instruction of police officers who had witnessed the men’s presence at the commission earlier that day.

The South African Police Service has denied the arrests are a form of intimidation, telling the Bureau ‘we have no other agenda than to arrest those who are breaking the laws of the Republic.’

However Nichol expressed his concern that the arrests will stop future witnesses from testifying. ‘I can no longer tell people that they can come and give evidence and be provided safe passage,’ the lawyer said. ‘This is a police force on the rampage,’ he added.

Another advocate for the miners, Dali Mpofu has also claimed that five of his witnesses, two of them key witnesses, had been arrested.

This week Mpofu announced the families he represents were considering pulling out of the commission due to a perceived lack of support for the victims and their families. He told Ian Farlam, the retired judge leading the commission, ‘We have found a pattern characterised by many things … treating victims of this matter with such disdain that we can’t continue. There has been a refusal by government to assist representatives of the victims … even with logistical support,’ he said.

The advocate, who is representing over 200 of the Lonmin miners, also claimed that Legal Aid South Africa has refused to provide financial assistance to the arrested miners, some of whom were injured during the violence on August 16th.

Earlier this week Nichol wrote to the England and Wales Law Society requesting that it send legal observers to the commission ‘to help ensure that the proceedings remain fair and that, in particular, the South African Police Force is prevented from intimidating miners who are witnesses before the inquiry.’

‘It is important that the commission sees the international community on their backs,’ Nichol explained. ‘We need to show them that people want to see fairness.’

Lonmin
Some workers at the London-registered Lonmin platinum mine, the site of the protest and shootings, are now on strike in protest over the arrest of their colleagues.

Despite agreeing to wage increases that resolved the original strikes Lonmin have faced criticism in their role in the put-down of the protests.

Emails revealed to the commission by advocate Mpofu show Cyril Ramaphosa, a member of Lonmin’s board writing to government ministers and the police, and describing the protests as criminal actions that warranted ‘concomitant action’.

Mpofu has suggested that the sending of the emails, 24 hours before the violence began, may suggest the shootings were not therefore a case of self-defence, as has been claimed by the police, but an orchestrated put-down.

Lonmin replied to the allegations issuing a statement in which it says: ‘Considering the violence and loss of life in the period 10-14 August, Lonmin engaged with a number of stakeholders to ensure that the situation in and around Marikana was addressed in the appropriate manner.’

They go on to state that ‘Lonmin is a mining company and is not responsible for law enforcement.’

The United Nations plans to set up a special investigation unit examining claims of civilian deaths in individual US covert drone strikes.

UN investigators have been critical of US ‘extrajudicial executions’ since they began in 2002. The new Geneva-based unit will also look at the legality of the programme.

An eleventh-hour intervention that prevented the deportation of a Syrian activist back to Damascus has raised fresh concerns over British asylum policy for thousands of asylum seekers fleeing the bloodshed in Syria.

The man, who is originally from the southwestern city of Dera’a, came to Britain on a student visa and has taken part in several anti-regime protests outside the Syrian embassy in London.

He was detained after visiting the Home Office to register an asylum claim, and notified of the UK Border Agency’s intention to deport him back to Damascus.

However, deportation plans were halted after the High Court granted his legal team an injunction, two days before the scheduled flight. His lawyers argue that he faces a high risk of arbitrary detention, ill-treatment and even torture if he is returned to Syria.

Alice Cunliffe, the man’s solicitor, told The Bureau: “No dissent is tolerated by the regime. Having demonstrated would be enough to put him at risk of torture or worse if he was to get into the hands of the Syrian authorities.

In addition, his parents recently received a court order sentencing him in absentia to 18 years in prison for his demonstrating activities in the UK.”

Since Syria’s anti-regime demonstrations began in March 2011, human rights organisations have documented the systematic use of arbitrary arrests against civilians, as well as torture and enforced disappearances.

The number of Syrians seeking asylum in Britain has increased sharply since their home country descended into civil war in April of this year. Between January and March 2012, only 31 Syrians sought asylum through the UK Border Agency. Unpublished Home Office figures seen by The Independent suggest that the figures are now exceeding 100 a month.

Home Office avoided ‘blood on its hands’
In a statement yesterday, Amnesty International’s UK Refugee Programme Director Jan Shaw said that the organization was ‘deeply alarmed’ by the attempted deportation of the young Syrian.

‘The UK government has been instrumental in pressing the UN to take action to address the serious abuses being perpetrated in Syria and so it is astonishing that whilst actively acknowledging the scale of such abuses, it would seek to return someone.

“Had it not been for [last week's] intervention, the UK government could have blood on its hands over this case.’

Syrian removals considered ‘case by case’
The move by the UK Border Agency has been condemned as contradictory as it comes a week after Syrian nationals residing in Britain were allowed to extend their asylum period until March 2013. This is seen as an implicit acknowledgement that a return to Syria under the current circumstances would be fraught with danger.

Cunliffe described the government’s approach to Syrian asylum seekers as ‘very worrying. [In] my experience the Home Office are continuing to refuse claims where they can.

It is appalling that we should even be considering returning people back to Syria at this time. There is no doubt that anyone suspected of being an opponent of the regime would be at severe risk of being detained on arrival and tortured, potentially executed.’

A UK Border Agency spokesperson said that all removals to Syria are considered on a ‘case by case basis’.

At present, the UK is believed to be the only EU country returning Syrian asylum seekers to Syria.

The police routinely copy and keep the contents of suspects’ mobile phones, according to this week’s Sunday Times.

In under half an hour the police could get from your phone your call history, all your text messages and your whole contacts book and put them into a vast database, the article claimed. And there the information stays, even if you are released without charge after a night in the cells.

The disturbing report claimed that as many as 22 English and Welsh police forces, including the Metropolitan Police and British Transport Police, are using off-the-shelf technology to do this. It claimed that the Metropolitan Police alone have 16 extraction terminals across London with 300 officers trained to use them.

In many ways it is a golden age for detective work. The police can access data from all kinds of sources because smartphones are both incredibly versatile and ubiquitous. Besides the emails and candid snaps from a night out, they can trawl your apps like Facebook or LinkedIn.

The Sunday Times report suggests that British police forces are treating the contents of citizens’ phones like they treated peoples’ DNA. For much of the previous decade British police collected DNA from arrested suspects and kept the samples even after the suspect was acquitted. In this way they collected and stored 1 million samples before the law stopped them.

In 2008 the European Court of Human Rights overturned a House of Lords ruling and decided it is illegal for the police to store innocent citizens’ DNA. The Sunday Times’ argues that ’there is a direct parallel’ between keeping DNA records and ‘keeping the mobile phone data of those who have never been convicted of any offence.’

Civil liberties group Big Brother Watch agrees. They are adamant it is outside the law, saying so both to the paper and in a letter sent to Christopher Graham the Information Commissioner in May this year. Recently Graham told a committee of MPs and Peers he is investigating the legality of this mass data storage. He said: ‘This may not only circumvent existing safeguards but also put the personal information of third parties who are not suspected of any wrongdoing into the hands of the police.’

While the authorities argue the legality of this new policing technique users can take steps protect their data.

Certain handsets have sufficient encription to keep some content safe says Rick Ferguson from cyber security company Trend Micro. The Metropolitan Police is using a product called Aceso made by British company Radiotactics, he told the Bureau.

‘Depending on the handset, you can configure it to reduce the amount that is withdrawn,’ he said.

But ultimately if your device is seized no matter what you do at least some of your data will be exposed.

The US presidential campaign trails for President Barack Obama and Republican nominee Mitt Romney have been marred with accusations of flip flopping on numerous issues (Romney on abortion and Obama on gay-marriage, for instance), resulting in voters questioning exactly where the candidates sit on the political spectrum and what exactly each will do if elected.

The third and final debate between President Barack Obama and Republican challenger Mitt Romney took place on Monday at Lynn University, Boca Raton, Florida and centered on foreign policy. Despite the increasing tensions with Iran and the ongoing Syrian conflict, issues concerning abortion, same-sex marriage, Obamacare and its unpopular health mandate, as well as the constant dithering over tax rates that still plague American politics.

Monday night was the candidates’ last chance to speak to a national audience about what they will do to pull America out of the depths of recession and back onto a hoped-for path of prosperity and opportunity.

While instances of flip-flopping provide each party ample fodder to spice up presidential debates, a candidate’s adaptation to a particular issue isn’t always a result of public pandering. A change in position can genuinely reflect how a candidate has evolved over the years and has reached a new level of understanding.

Author and Huffington Post contributor, William B. Bradshaw, defines flip-flopping when a candidate, “suddenly changes his or her mind in the midst of a campaign based on the climate of the campaign or what polls are showing.” For example, Mitt Romney’s declaration that he “will not reduce the taxes paid by high-income Americans” during the first Presidential debate, had many viewers wondering why he suddenly contradicted the platform of his campaign.

Over the years both candidates’ political stances have altered. When Obama and Romney ran for state office, their views on positions aligned with those of their statewide electorates. Now in the general election, both candidates must adjust their standings in order to connect with a nationwide audience, as Brendan Nyhan from Columbia Journalism Review explains.

In 2002, when Mitt Romney campaigned for Governor of Massachusetts, he positioned himself as a pro-choice candidate by saying that “a woman should have the right to make her own choices” regarding abortion.  Fast forward ten years and the Romney platform is staunchly pro-life, seeking to outlaw abortion except in cases of rape, incest, or if the pregnancy interferes with the life of the mother.

Regarding President Obama, in his 1996 campaign for Illinois State Senate he was in favour of “legalising same-sex marriages,” then in 1998 he was “undecided”. Now in 2012 he is endorsing same-sex marriage.

Amending a position for “electoral incentives” is necessary in order to win elections. If a candidate does not adapt, Nyhan explains, “they lose.”

But how does evolving for electoral gain affect voters?

According to a report in Discovery News, flip-flopping can have a positive effect on a voter’s mental image if the candidate’s new position evolved to accord with his or her own. However, if a voter regards the change as self-interested, then switching positions can actually harm public opinion and adversely affect a candidate’s campaign.

But the report goes on to state that most voters do not accurately process a candidate’s official platform. Citizens are subject to bias when scrutinising candidates and project their favourable opinions about issues onto the ones they like, engaging in “motivated reasoning.”

And when it comes to flip-flopping, the way the public assesses it is largely correlated to a candidate’s popularity. Citizens may largely ignore the flip-flop if they like the candidate but sensationalise its importance if they dislike the candidate.

So, is Mitt Romney really like an Etch-a-Sketch, who is willing to say or do anything for political gain, and who also happens to suffer from what Obama terms as “Romnesia”?  And is President Barack Obama’s new endorsement of gay-marriage just a political move to win over public opinion?

As Nylan states, “The straight-talking politician who always says what he thinks and never changes his mind for political reasons is a fiction.” No matter what the candidates personally feel, they will have to set aside their personal views in order to adequately represent their constituencies.

Below are five of the most contested issues that, over the years, have garnered different reactions from the candidates. Can Obama and Romney be convicted of flip-flopping to win the 2012 Presidential election or have their attitudes evolved from years of experience to reflect cultural dynamics?

The Special Immigration Appeals Commission (SIAC) was established in 1997 to deal with national security deportation cases. The commission works as a court of appeal for those under deportation orders from the Home Secretary, or those excluded from the UK.

However, it is really only in recent months that the commission has made the news, with a number of high profile cases attracting attention.  The most high profile case currently before SIAC relates to radical cleric Abu Qatada, described by the government as a ‘truly dangerous individual’.

Before 9/11 SIAC was rarely used as deportations of this nature were few and far between. However, the 2001 Anti-Terrorism, Crime and Security Act enabled the Home Secretary the power to detain, without charge or trial, foreign nationals who were suspected of terrorism-related offences.  In the months that followed, 14 suspects were arrested. 12 of these would be held in Belmarsh high security prison before bringing appeals before SIAC.

Since 2001, the court has heard at least 70 cases.

Secret evidence
One of the most controversial aspects of SIAC proceedings is its use of ‘closed’, or ‘secret’, evidence. When the Home Secretary detains a suspect, they may notify the Attorney General that their decision has been partly based on intelligence that they would rather not reveal in an open court. This can include reports by the security services, testimonies from informers within terrorist organizations, or material acquired through phone tapping.

If the judge accepts this argument, the sensitive material will be presented in a closed-door session where it can only be viewed by the judge and security-vetted Special Advocates to represent the prosecution and defence teams. The Special Advocates are then permitted to communicate a loose outline, or ‘gist’, of the evidence to their client, a process which critics claim leaves many defendants in the dark as to the nature of the charges against them.

Prior to September 11th 2001, SIAC had only ruled on three cases that used closed evidence. Over the past decade, such evidence has played a part in the majority of cases that have come before the court. In some instances, the entirety of the substantive case against the detainee has been heard behind closed doors.

A new report by Amnesty International has detailed the difficulties that legal teams face in addressing the charges disclosed in secret evidence hearings. These include the question of how to effectively represent a client without access to substantial parts of the evidence against them, the fear that adopting a certain line of questioning might result in negative consequences in the secret part of the hearing, and large disparity in terms of their ability, compared with the government lawyers, to effectively cross-examine witnesses.

SIAC proceedings have been designed to prevent appellants taking further judicial reviews of the Home Secretary’s decision to deport them. If someone loses their appeal, they retain the right to escalate the matter to the House of Lords, but only on a point of law.

A proposed European clampdown on computer driven high speed share trading has been largely rejected by a UK government report published yesterday.

Out of nine EU policy proposals designed to curb high frequency trading (HFT), the Department of Business Foresight team today found two were effective while seven were “problematic”. Last month a Bureau investigation found the majority of the financial services members on one of its two advisory panels had linked with the HFT industry.

The two year study is thought by some to form the basis of the UK government’s position as it negotiates the future of European financial markets. Experts have told the Bureau it could place Chancellor George Osborne on a collision course with his European Treasury counterparts.

The Foresight report found no direct evidence that HFT, through which traders typically only hold shares for ten seconds, increased volatility of the markets.  Nor did it find evidence to suggest it has led to an increase in market abuse.

But it did find that the rise of HFT has “greater potential for periodic illiquidity” or occasions when trading dries up.  This can result in market instability.

Called The Future of Computer Trading in Financial Markets, it is billed as having an “international perspective”, receiving contributions from 150 academics. It also elicited over 50 feeder papers.

The paper will be broadly welcomed by the HFT industry who argue criticism of their rapid trading practises is based on unscientific and anecdotal evidence.

But Joe Saluzzi, co-founder of Themis Trading a US equity broker who has written extensively about HFT, said: ‘The Foresight Report missed the major issues regarding market structure.  The fragmented market structure and conflicted interests of the for-profit exchange model are the key issues why HFT has grown so much.’

Saluzzi added: ‘The Foresight report seems to use the standard pro-HFT arguments that the HFT lobby continues to use. That it shrinks spreads and adds liquidity.  This is no surprise since the majority of their High Level Stakeholder Group are industry insiders.’

Major disquiet
The report reveals major disquiet among major institutional investors about how HFT, which now accounts for about 30% of equity trading in the UK and over 60% in the United States, is behind a significant increase in market manipulation.

Pension and mutual funds have “little or no confidence” in the ability of regulators to prevent high-powered supercomputers manipulating billions of pounds worth of equities traded on stock exchanges, it disclosed.

But Foresight found no direct evidence HFT increased market abuse though it admitted there has been very little research into equity trading patterns and its investigation .

In recent years, HFT has risen to prominence after stock exchanges were deregulated and permitted by international regulators to compete for business. Increased computer processing power means thousands of trades across numerous exchanges are made every microsecond – a millionth of a second.

HFT’s proponents argue this new trading system has reduced transaction costs and increased liquidity. Critics point to HFT’s role in exacerbating huge falls on global stock exchanges and a culture of short-term speculation.

HFT’s future will be decided by European ministers who are framing a new version of the Markets in Financial Instruments Directive (Mifid 2) expected to reach a conclusion by the year end. Mifid 2 is also reforming commodity markets.

The government report also offers a glimpse into the future of financial trading suggesting human involvement will continue to reduce. Computer-designed robot traders will replace sophisticated algorithms, it predicts.

As televised images of blue-uniformed police, coldly opening fire on striking workers in South Africa ricocheted around the world, one could not help but be reminded of the state repression that permeated the apartheid struggle of earlier decades.

Since that time, South Africa has built itself a reputation of stability and prosperity, in contrast to many of its neighbours. But that image of stability is now being called into question. The Marikana massacre has awoken the world to a state of civil unrest in South Africa, with recent events marking the highest peak of protests since the end of apartheid eighteen years ago.

On August 16, workers from a platinum mine in Marikana, owned by London-listed mining company Lonmin, were on strike over wage and labour conditions. An armed police unit arrived and opened fire on the striking workers, killing 34 and injuring around 80 more.

Last night five experts on South Africa gathered at the Frontline Club in London to discuss the Marikana massacre and its repercussions. Was this a flashpoint moment that could spark a revolution or just another tragedy amid a sea of bubbling discontent?

Contagion
The Lonmin workers have now resolved their strike, after the company agreed to a pay increase. However the protest and its violent put-down ignited a wave of similar strikes across the South African extractive industries.

Just yesterday police shot at striking workers with rubber bullets at the Bokoni platinum mine. Meanwhile gold producer AngloGold Ashanti suspended its operations in the country when two-thirds of its workforce went on strike last month.

According to reports in the Financial Times Anglo American Platinum fired 12,000 illegally striking miners last month and gold producers Gold Fields are threatening the same to thousands of their striking employees.

In some cases, the reasons for the unrest are clear. Workers in the mining sectors are faced with appalling conditions and low wages. Many companies are turning to contract labour, allowing them to side-step the rights afforded to permanent employees. Add to this the fact that many miners have no choice but to stay in the companies’ single-sex hostels where, according to South African journalist Terry Bell, ‘workers are stacked in bunks like so many artifacts in a museum.’

Many put up with the conditions out of desperation; unemployment in the country is around 40%.

State repression
However, the horror of the Marikana massacre came not just from the conditions faced by labourers, but by the violent way the protests were put down, leading many to question how the police came to react the way they did.

The police unit sent to disperse the Marikana crowds was a specialist squad trained to tackle armed heist gangs. It was sent into Marikana armed with live ammunition.

Jonny Steinberg, a lecturer in African studies at Oxford University, explained to the Frontline Club audience that the level of repression shown by the police could be a sign of President Jacob Zuma stamping his authority over an increasingly fractured country and government. In December Zuma will face a fight for re-election as leader of the African National Congress party (ANC).

‘This paramilitary outfit arrived and turned on protesters. That was a policy decision that happened because Zuma allowed it and wanted it to happen,’ Steinberg said.

The country’s police commissioner backed her force, announcing to the press that the police had nothing to apologise for.

State of the unions
But the politics of this struggle go beyond party political lines: companies and trade unions are locked in an incestuous relationship of their own.

The extractive industry has never been the cuddliest of employers, and it often rests on the trade unions to protect the rights of South Africa’s mining community. Unfortunately the lines between unions and companies have become blurred.

Take for example Cyril Ramaphosa, the trade unionist responsible for building up the National Union of Miners (NUM). Since leaving his role at the union the well-known South African figure has become a lot closer to the industry he used to attempt to regulate. Ramaphosa’s company the Shanduka Group holds 9% of shares in Lonmin, the London-registered platinum miner at the centre of the Marikana protests. The former trade-union leader now sits on the mining company’s board.

James Motlatsi is another case in point. He too was a president of NUM before joining the board of AngloGold Ashanti. He now is chairman of the board of platinum miners Platfields.

The union’s reaction to Marikana has incensed some. Audrey Brown, a producer on BBC Focus on Africa told the audience at the Frontline Club that the NUM’s head excused the police brutality as sending out a strong message ‘that they will not let the country descend into chaos’. Brown added: ‘That was an announcement I heard with speechless horror.’

The problems go beyond an overlap between industry and unions. Structural hierarchies of unions can lead to the sector undermining itself. Despite the different range of skilled labour needed in the extractive process only one union is permitted at the bargaining table: NUM.

Disillusionment is clear. In an apparent move away from the formal unions, miners are now reportedly forming ad hoc workers’ representative groups.

Long term effects
The repercussions of strikes in the extractive industries could have consequences long after the workers return to work.

‘A lot of companies are putting their plans for further investment [in South Africa] on hold,’ said Natznet Tesfay, head of Africa forecasting at Exclusive Analysis.

Ratings agencies Moody’s and Standard and Poor have both downgraded South Africa’s rating since the shootings.

Meanwhile, Steinberg predicted the shootings would shake up voting patterns in the country. Traditionally poor, black citizens have voted en masse. Steinberg predicts the events of Marikana will change that, disenfranchising those voters further. Instead, he argued, the middle classes, who have previously been less inclined to vote, may take up the fight and register their horror at the strike-repression through the ballot box.

A nation at war with itself
In his book Who Rules South Africa, Paul Holden predicts that two million South Africans are involved in some sort of low level protest each year. Indeed, 2012 has brought with it the highest number of protests per month since apartheid.

While the bloody violence of Marikana alerted the world to the miners’ protests, nearly every day there is another skirmish, as the people of South Africa voice their discontent. Unfortunately, sometimes it takes the death of dozens for their voices to be heard.

Watch the Frontline Club debate here.

Members of parliament Tom Watson and Zac Goldsmith are to lead a new parliamentary group set up to scrutinise the rapid spread of drones both on the battlefield and in civilian life.

The All-Party Parliamentary Group on Drones launched yesterday, with Labour MP Watson appointed as president and Conservative Zac Goldsmith as a vice president.

Clive Stafford Smith, director of legal charity Reprieve, told the politicians the US’s current use of drones in Pakistan, Yemen and Somalia amounts to ‘death penalty without trial’. He added: ‘We sleepwalked into a nuclear age, now we are sleepwalking into a drone age.’

He pointed to significant questions over the legal framework for such campaigns – as well as the secrecy over who is killed and whether they inspire extremism.

And while reporting on drones tends to focus on the US’s covert campaigns, Chris Coles of Drone Wars UK highlighted research showing that 76 countries currently possess some form of unmanned aerial vehicle (UAV), however rudimentary – including Botswana, Panama and Lithuania.

Related story – Where’s all the money gone? How the UK spent £2bn on drones

The UK currently flies five types of drone, although only one model, the Reaper, is armed. It has carried out 319 strikes in Afghanistan since 2008, Coles added, with British pilots flying from the US drone base at Creech, Nevada. And in the final day of the last parliamentary session, the government quietly admitted it had also flown drone missions in Libya, despite previously insisting it had only flown drones in Afghanistan.

Drones are set to become increasingly prominent beyond the battlefield – but the legal framework for using them in civilian airspace remains problematic, politicians heard. At present it’s perfectly legal to fly your own drone, such as the £300 iPad-controlled Parrot, to within 150ft of your friends and neighbours.

Related story – Details of 99 UK drone strikes in Afghanistan revealed

Neither the Civil Aviation Authority or Astraea, the industry-led programme that aims to establish guidelines for civil use of drones, has shown much appetite for grappling with the privacy implications of this, Coles added. And new laws are expected to open up the UK’s skies for commercial drones in the next decade.

Watson told the Bureau the new group will meet an important need. ‘Drones herald a new era in military technology, and they require parliamentarians to consider all the policy implications, both internationally and domestically,’ he said.

In a surprising move a group of staff from the human rights organisation Amnesty International went on strike today after senior management retracted their redundancy policy just hours before announcing changes that would result in dozens of staff losing their jobs.

In August staff at Amnesty’s International Secretariat were told that the campaigns and communications departments would be merged, leading to the loss of dozens of jobs. Two hours before announcing the merger management had informed workers’ union Unite that the organisation’s current redundancy policy would not apply to any staff who lost their jobs as a result of the restructure.

Dozens of staff from the global headquarters now face possible unemployment without an agreed redundancy policy.

Fighting for their rights
According to Amnesty International, a third of their 500+ staff members voted to strike. Unite predict the actual number of those on strike today was nearer to 300.

Picket lines formed around the international HQ in Clerkenwell, London and around 100 staff members gathered in a near-by church hall for a rally protest.

At the rally Alan Scott, from Unite described Amnesty’s management as ‘one of the most mendacious employers I have ever worked with,’ before describing the strike action as ‘a struggle for the soul of Amnesty.’

Messages of solidarity from Amnesty branches around the world were read out, as well as messages from other unions worldwide. The Beirut office announced they are striking in solidarity while a message from the Netherlands office recognised the ‘hard decision’ to strike given the disruption the strike will cause to staff’s human rights campaigning.

Alan Scott (Unite) addresses Amnesty staff.

In a previous statement Alan Scott said: ‘Amnesty International cannot be an effective or credible human rights organisation if it does not respect the rights of its workers. The organisation’s senior management must adhere to the same standards it demands of governments and corporations globally.’

Restructure
Amnesty released an official statement in response to the strike saying, ‘We very much regret that staff have taken the decision to take industrial action, while fully respecting their right to do so.’ They went on to explain the reshuffle comes as part of structural changes to the NGO which will move work from the London HQ to ‘ten regional hubs around the world, located closer to where human rights violations occur, particularly in the Global South and East.’

A spokesperson from Unite explained that it is not the proposed changes that those on strike object to but ‘the way in which it is being done.’

This is not the first time the NGO faced criticism for its management decisions. The organisation previously came under fire in 2011 when it was revealed that a secret pay-off to former directors had cost the charity £800,000. The payments were supposedly made to former secretary general Irene Khan, who reportedly received £500,000,  and her deputy Kate Gilmore.

Starbucks has paid just £8.6m in UK taxes over the last 14 years according to a special report by Reuters.

The news agency also reports that the Seattle firm has paid no income tax whatsoever in the past three years despite reporting sales of £1.2bn and telling investors that its UK arm is profitable.

Starbucks is the second largest global restaurant or cafe chain behind McDonalds with a market capitalisation of $40bn (£24.8bn). Its nearest competitors are paying multimillion pound tax bills to the Treasury.

But the company has been using entirely legal tax avoidance schemes to report no profits and so escape paying UK tax.

In a lengthy investigation Reuters uncovered the avoidance scheme by comparing company accounts with transcripts of 46 conference calls with investors and analysts. In doing so it revealed the differences between what the company was reporting in its financial accounts and what it was telling analysts in briefings.

The transcripts show Starbucks officials routinely described their UK business as profitable and a model for the US market. But accounts show it has made almost £150m losses since 2008 in the UK.

In response to the report Starbucks’ chief financial officer Troy Alstead said the company strictly follows accounting rules. And a spokeswoman told the news agency: ‘We seek to be good taxpayers and to pay our fair share of taxes.’

Reuters questioned Alstead on the apparent disconnect between the touted health of the UK operation to investors and its reported losses. He responded by suggesting the UK business was not doing as well as it had in the past. ‘The UK is very troubled, unfortunately. Historically it has performed a little bit better than it does now,’ he said.

He  added the corporation is taking ‘very aggressive’ action to improve the British subsidiary’s performance.

One of many
Starbucks is the latest multinational company in the headlines avoiding tax in the UK.

The so-called ‘Big Four’ technology companies have been reported as paying no or little tax too.

Amazon, Facebook, Google and Apple have in total paid only £22.5m to the UK exchequer, according to analysis by The Sunday Times.

The paper estimates the tech giants’ true tax liability as upwards to £826m. Facebook, which this week launched a development and engineering centre in London, paid just £238,000 tax in 2011 on an estimated liability of £21m.

Last year, too, an undercover sting by Bureau journalists also revealed how global telecom giant Vodafone, one of Britain’s biggest companies, avoided massive sums in UK tax.

The Bureau found billions of pounds of profits were apparently being allocated to Vodafone branches in Switzerland where hardly any business was being done.

The modest tax bills for US firms has spurred outraged calls for action. Labour MP Margaret Hodge, chair of the public accounts committee, said HMRC should look into Starbucks’ tax affairs.

Richard Murphy of Tax Research UK told the Guardian UK tax law has created an ‘uneven playing field’ that means ‘UK businesses are disadvantaged against foreign businesses’.

In February 2012 two schemes devised by Barclays Bank to slash tax bills were shut down by the Government. The Treasury closed two loopholes that were netting the bank hundreds of millions of pounds.

George Osborne changed the rules in his 2012 Budget. The new regulations were retroactive, coming into force days before Barclays began exploiting the loopholes. A Financial Times editorial bridled at this as a ‘step too far’.

The paper said: ‘Instead of trying to undo its past mistakes, the government needs to prevent future ones by fixing a tax system that invites avoidance.’

The Court of Protection hears cases relating to some of the most morally and politically contentious issues of our day and about some of the most excluded and silenced people in our society.  It is surely a good sign that the media, MPs and campaigners are sufficiently concerned about their plight that they take such an interest in this court’s new jurisdiction under the Mental Capacity Act 2005 (MCA).  Yet there is a difficult balance to be drawn between protecting the privacy of the individuals and families at the heart of these cases, and ensuring that the wider democratic objective of transparency in our justice system is met.

The Court of Protection is frequently described in the media as ‘secretive’, yet according to its judges this is an ‘old shibboleth’ which should be laid to rest.  Despite judicial efforts to permit greater media access and reporting, the reality is that the Court of Protection does not function like other courts, and information about its activities is still relatively limited. 

There are many arguments in favour of greater transparency in the Court of Protection.  In the most general of terms it is often said, following Jeremy Bentham, that: ‘Publicity is the very soul of justice. It is the keenest spirit to exertion and the surest of all guards against improbity.  It keeps the judge, while trying, under trial.’

It is important that the decisions of the Court of Protection judges are open to public scrutiny in order to promote faith that its rulings are just and fair, and to prompt debate and reform if it is felt that they are not.  Publicity is important for promoting wider understanding of the work of the court, for ensuring that politicians, officials and the wider public understand the kinds of issues it routinely handles.  The Court of Protection often relies upon the evidence of expert witnesses; evidence which cannot be scrutinized, debated and subjected to peer review without greater openness.  Many cases coming before the courts involve public authorities in the course of the health and welfare duties; surely their activities, particularly where they impinge upon such fundamental human rights of such vulnerable citizens, should be subjected to scrutiny?

Despite strong arguments in favour of greater transparency in the Court of Protection, it can be extremely difficult to achieve without also impinging upon the interests of the courts’ users.  In this paper, I will outline this tension in two separate debates concerning transparency in the Court of Protection: media freedoms to attend and report Court of Protection proceedings; and the routine publication of anonymised Court of Protection judgments.  I will argue that the courts have had good reason to be cautious about greater media access to hearings and litigants, but that the court could take greater steps towards transparency through introducing routine publication of anonymised judgments.

Media attendance and reporting restrictions in the Court of Protection
The legal basis for reporting restrictions in the Court of Protection is an amendment to s12(1)(b) Administration of Justice Act 1960 (AJA), which makes it a contempt of court to publish any information relating to proceedings sitting in private brought under the MCA. Interestingly, publication of information concerning cases heard in the Family Division of the High Court under the ‘inherent jurisdiction’rather than the MCA are not subject to such restrictions, despite a commonly held belief to the contrary.  The general rule in the Court of Protection is that hearings shall be brought in private, meaning that s12(1)(b) AJA reporting restrictions will apply.  However, r91 Court of Protection Rules 2007 permits the court to authorise the publication of information relating to private proceedings, and r92 permits the court to hold the hearing in private but to impose restrictions on the publication of any information in relation to those proceedings.

In 2009 the Court of Protection permitted journalists to attend court and report proceedings for the first time in a case relating to the world famous blind and autistic pianist Derek Paravicini.  But contrary to The Independent’s subsequent claims, this was not the creation of a ‘new right’, but merely the first time the media had chosen to exercise their pre-existing ‘right’ to attend and report Court of Protection proceedings, as laid down in the Court of Protection Rules 2007.  Since that time, The Independent reports that they have ‘won’ every application to attend Court of Protection proceedings.

However, although the rules do permit the media to attend court and to publish information relating to proceedings, the media complain that the application process is ‘cumbersome, time consuming and expensive’, and requires them to commit significant resources to the cost of an application without any guarantee of a story at the end of it.  It would be a shame if this had a chilling effect on reporting of Court of Protection proceedings, and perhaps it would be desirable to have a more lightweight media application process.  However it is unlikely the media will ever be granted the unfettered access to the court desired by some.  The overriding objective of the Court of Protection includes ensuring that the interests and position of the incapacitated adult are properly considered and that all parties are on an equal footing.  Without knowing what information the media might seek leave to report, nor how this might affect the rights and interests of the parties to a case, it is difficult to see how the court could offer journalists any ‘guarantees’ to a story in advance.

There are several respects in which the interests of court users may come into tension with the wider interests of transparency and publicity, the first of which is time and resources.  Every application the media make to attend court must be scrutinized by all the parties to a case, and late applications can lead to exasperating delays for decisions on pressing matters.  The court’s decisions to permit media attendance and reporting are usually framed in terms of a balancing exercise between the Article 8 rights (respect for private and family life) of incapacitated adults and their families, and the Article 10 rights (freedom of expression) of the media.

In London Borough of Hillingdon v Neary & Anor (Rev 2) Mr Justice Jackson commented, ‘Publicity can have a strong effect on individuals, particularly if they are not used to it, or if… they are vulnerable to anxiety and to changes in their environment.’

However, Jackson J also emphasised that there must be evidence which supported a proper factual basis for the claim that any given individual would suffer an adverse effect from publicity.  He also stressed that there was a genuine public interest in the work of the Court of Protection, and that it was not in the interests of the public in general or the individual litigants in any case for its work to be considered as secretive.  It was, he said, important that the media were able to report routine cases, that reflected the lives of ordinary people, as well as extraordinary cases like that of Derek Paravicini.

In W v M & Ors Mr Justice Baker found that the Article 6 rights (to a fair trial) of litigants might also be compromised if their capacity or willingness to participate in litigation were affected by the threat of media publication of identifying information, or attempts by the media to contact them.  This highly controversial case concerned whether a feeding tube should be withdrawn from a woman in a minimally conscious state to allow her to die.  In an earlier unpublished ruling the court had issued an injunction banning reporters from approaching 65 named individuals involved in her care, or approaching within 50m of four named properties.  This injunction was dubbed ‘draconian’, even ‘evil’, by campaigners emphasising the public interest in the case.  However it is worth noting that the injunction did not prohibit reporters from attending or reporting court proceedings, merely from ‘doorstepping’ or identifying a very severely disabled woman, those charged with caring for her, and her grieving family.

In a later hearing these restrictions were reduced to cover merely her family; a decision which was accepted by The Times Newspapers Ltd ­– the only media outlet who actually sent representatives to court – on hearing the evidence of the family.  The judgment described the family as being so fearful of media harassment that without such an injunction they might not have brought their case to court; when one reads the judgment in its 43,000 word entirety it is impossible not to have sympathy with their position.  It is important that vulnerable litigants have confidence in protections against intrusive media interest so that publicity does not have a chilling effect on the cases that are brought to the Court of Protection.

Nowhere in the media does it seem to be appreciated that if these cases are not brought to court, difficult decisions regarding adults who lack mental capacity do not go away. Outside of the Court of Protection, disputes and complex moral and political questions are simply resolved by other means, which may offer fewer guarantees of fairness, equality of arms or scrutiny.  Indeed, this was a growing problem prior to the introduction of the MCA.  It may well be that the media are frustrated that their access to Court of Protection cases is restricted, but they should bear in mind that if litigants are driven away from taking these decisions to the Court of Protection through fear of media harassment, such decisions will be made in places far further from view.

Publication of anonymised transcripts of Court of Protection decisions
Another means by which the decisions of the Court of Protection make their way into the public domain is the publication of written judgments, usually in anonymised form.  However, despite some improvements, the framework for publication and dissemination of these rulings still leaves much to be desired.  Many judgments are delivered ex tempore, meaning publication would incur significant transcription costs.  However, even those judgments which are delivered in written form do not routinely make their way into the public domain.  Leave to publish any judgment is left to the discretion of the individual judge, and although senior judges – including the President of the Court of Protection Sir Nicholas Wall and Lord Justice Munby – have exhorted their colleagues to routinely publish written and anonymised judgments, this plea does not seem to have met with widespread enthusiasm.

The Court of Protection itself has complained that ‘practitioners and judges have been hampered by a lack of reported case law and inconsistent reporting of judgments handed down by the Court of Protection’. It was suggested that the problem had been resolved with the creation of a dedicated Court of Protection database on BAILII in October 2010.  The BAILII Court of Protection database is certainly welcome, but for reasons which are unclear it still has remarkably few published judgments.  For example the BAILII website has only 20 published judgments for 2011, yet the Court of Protection makes thousands of decisions each year, and issues hundreds of welfare orders.  The independent website Mental Health Law Online hosts significantly more Court of Protection judgments than BAILII; it is unclear why judgments which can be published on this site are not routinely published on the other.  The 39 Essex St Court of Protection Newsletter is widely read in court and legal circles, and Jordans Publishing recently launched a new series of Court of Protection Law Reports, although the price tag may be off-putting to non-legal audiences.  Despite these efforts, however, the majority of Court of Protection decisions are not published, anonymously or otherwise.

It is often suggested by lawyers that where a case is of legal importance it will be published, however recent cases in the Court of Protection suggest this is not uniformly happening.  In A London Local Authority v JH & Anor District Judge Eldergill was referred by counsel to the unreported case Re: GC which he found ‘helpful’ in reaching his decision.  More recently, the Court of Appeal was asked in K v LBX to consider ‘an apparent conflict between the line of High Court/COP decisions which are at odds with a developing line of cases at the same level’.  One of these two apparently conflicting lines of Court of Protection case law was well publicised and well known to lawyers and health and social care professionals; it suggested that where a decision must be made about where an incapacitated adult should reside, priority should be given to placement in the family home.  However, a second line of case law, unpublished and unknown to most professionals and lawyers had also been evolving in the Court of Protection; this line of reasoning suggested that there was no such ‘starting point’ or priority for family placements.

Readers with an interest in health and social care will quickly realise the significance of such a change of direction in mental capacity case law.  In the first instance hearing of K v LBX, which is itself still unreported, Mrs Justice Theis had relied upon an unreported judgment by Roderic Wood J and her own ‘more recent experience of such cases’ to argue that there had been a ‘philosophical and practical shift’ towards placements promoting ‘greater independence’ rather than maintaining the status quo of family life. From the perspective of equality of arms, of legal certainty, of ensuring that health and social care professionals are appraised of the correct approach to take when making best interests decisions on behalf of incapacitated adults, it seems indefensible that counsel and judges should be able to refer to, and rely upon, judgments which are not in the public domain.  It also seems likely that such failures to publish written judgments of legal significance could be in violation of the UK’s obligations under Article 6 European Convention on Human Rights.

However, even ensuring that cases of legal interest are published will, in my view, be insufficient to quell concerns about transparency in Court of Protection proceedings.  As Munby LJ has written:

Releasing for publication only those judgments which are ‘reportable’ means that the public obtains a seriously skewed impression of the system. What one might call ‘routine’ judgments in ‘ordinary’ care cases and private law cases should surely also be published — all of them, unless, in the particular case, there is good reason not to.

For example the activities of public authorities in relation to incapacitated adults which bring them to the Court of Protection may not be of ‘legal’ interest, but they are of significant social and policy interest.  Requiring routine publication of anonymised judgments, including the identities of any public authorities involved in the cases, would go some way towards dispelling a view which is taking hold in some quarters that the courts, experts and public authorities are in cahoots, exercising sinister and unaccountable powers over vulnerable people and silencing those who speak out.  The reality I suspect is not that the courts are engaged in some sinister conspiracy, rather that the current haphazard system for publication is struggling amidst high and growing judicial workloads.  It was found in a pilot project to routinely publish certain rulings under the Children Act 1989 that judges struggled without additional resources allocated for transcription and anonymisation.

The difficulty may also be judicial culture.  The judges of the Court of Protection see this work day-in, day-out, and perhaps they do not understand the fascination and concern even the most routine-seeming cases may hold for the wider public.  Yet for as long as publication rests on judicial discretion it will be hard to promote public faith in the inner workings of the court amidst unverifiable, and hence uncontestable, hints and allusions that darker forces are at work in those other, unpublished, cases.

This paper takes as its focus some current threats posed to the administration of justice in both the United Kingdom and the United States. Both jurisdictions are experiencing similar problems which concern the flow of electronically-held information into and out of the jury room. It will be seen that the strong protection afforded to such speech under the First Amendment means that even where it is highly prejudicial, no action can be taken against media organisations or providers of electronic social media. Instead, emphasis is placed on insulating jury members from material that is not part of the criminal trial proceedings. By contrast, jury members who undertake private research into aspects of the trial are not in the same position as media organisations and risk being found in contempt in much the same way as jurors in England and Wales.

The questions which this brief paper sets out to explore are as follows:  i) what sorts of threat does technology and the electronically-equipped juror pose to the fairness of criminal jury trials and ii) what possible responses might the criminal trial system make to counter any adverse impact on trial fairness/integrity.  To start with however, the constitutional context in which recent developments in the United States have occurred is set out.

US First Amendment
‘Congress shall make no law… abridging… freedom of speech or of the press…’

Most of us are familiar with this famous constitutional command. For present purposes, it is the application of the First Amendment to the reporting of court proceedings and, more broadly, to speech about matters pending before the courts that is of relevance. The underlying rationale for broad protection in the case of speech about courts and legal proceedings is to be found in the ideal of republican self-government. As Brennan J observed in the context of a successful challenge to an order closing a criminal trial to media and members of the public alike:

[T]he First Amendment  …has a structural role to play in securing and fostering our republican system of self-government. Implicit in this structural role is … (the) assumption that valuable public debate – as well as other civic behavior – must be informed.

Courts are entrusted with the exercise public power in the process of trying defendants in criminal cases and it follows that the public or community on whose behalf this power is exercised has an interest in learning about court proceedings. Knowledge of court proceedings and surrounding issues is vital therefore to the informed participation by citizens in public affairs.  That is not to say that restrictions on court-related speech could never be justified, it is rather that there is an extremely heavy constitutional burden on the state to show why the media should be prevented from commentating on pending/actual proceedings. This burden is expressed in the ‘clear and present danger’ standard. Essentially, this requires the state to show that the speech in question poses a clear and present danger of immediate and substantial harm (to say the administration of justice or a defendant’s fair trial rights) and that the restriction imposed on speech advances the governmental interest by minimally impairing the exercise of First Amendment freedoms. In effect, the standard means that sub judice contempt rules are wholly unconstitutional. In the case of prior restraints (or gag orders), these become extremely  hard to obtain, though not impossible.

As the American Bar Association puts it in ABA Standard 8-3.1:

Absent a clear and present danger to the fairness of a trial or other compelling interest, no rule of court or judicial order should be promulgated that prohibits representatives of the news media from broadcasting or publishing any information in their possession relating to a criminal case.

Even in cases where the publicity does cause a trial to be delayed and transferred to a different venue, the ABA guidance goes on to state that:

No legal penalty or obligation may be imposed on reporters to avoid publicity about a case. No legal penalty may be imposed for even the most intense, exaggerated, biased or ‘hyped’ coverage of any criminal case (except the remedies provided by successful libel suits).

Safeguarding criminal trials – the First Amendment way
The obvious question to arise from the presumptive unconstitutionality of restraints on prejudicial pre-trial and during trial publicity is how does the US system uphold the defendant’s Sixth Amendment right to a fair trial. Consider the murder trial of OJ Simpson. Apart from the saturation television and news media coverage during the trial itself, which many considered to be hostile to the defence (it turned a serious criminal trial into an entertainment in which the lawyers and witnesses were competing for the ten second soundbite to kick off TV networks’ evening news programmes), there was also the prejudicial material aired by media organisations. This material was broadcast after Simpson was formally brought before the court for the first time to be told the charges he would be facing and famously included audio recordings of the 911 calls made by the victim on two previous occasions, including the time when Simpson broke a door to gain forcible entry. Nicole Brown Simpson is clearly heard to tell the emergency switchboard in a sobbing voice, ‘He’s back’, ‘I think you know his record’, ‘He is crazy’; at the time of these broadcasts, the admissibility of the 911 calls had yet to be determined.

Accepting the serious potential for such material to cause prejudice to the fairness of particular trials, the criminal trial process in the US lays emphasis upon the range of curative measures that can deployed to safeguard Sixth Amendment fair trial rights. These include the voir dire, changing the venue or start date of trials or, in extreme cases, such as Simpson’s, sequestering the jury.

An electronic threat to fair trials
The OJ Simpson case brought together a combination of elements (celebrity black defendant and role model in an ethnic community; violent crime against his white wife, a racist police officer, flamboyant lawyers happy to play to the cameras) elements that do not usually present themselves in the one criminal case before a jury of twelve men and women.

In 2012, a pressing threat to the fairness of jury trials would seem to come from within the trial process itself – namely the juror. Compared to previous generations, jurors today are much more likely to be electronically equipped and adept at tweeting, blogging, sending and receiving instant messages and Facebook updates. The modern juror is also accustomed to acquiring knowledge about events and individuals via Wikipedia and Google.

In the celebrated 1957 film directed by Sidney Lumet, Twelve Angry Men Juror No 8 (whose character is played by Henry Fonda) is the one juror in a murder trial who initially stands alone in expressing doubt about the defendant’s guilt. At one point in the deliberations, he produces a knife that is identical to weapon said by the prosecution to have killed the victim. This action is central to the undermining of the prosecution’s case and helps persuade the other jurors to doubt their original conclusions of guilt. For present purposes, what is of interest here is that Juror No 8  has done his own research and brought the product of this research into the jury room – something that is wholly contrary to the adversarial nature of criminal trials. The prosecution has no chance to rebut the pro-defendant inference which is suggested by the juror’s private inquiries.

Today, the twittering/electronic juror might be thought to pose a different kind of threat to that created by Juror No 8 in Twelve Angry Men. At one level though the same challenge is posed to the criminal jury trial in which extraneous material (i.e. material not admitted in evidence to the court, and thus not tested through the adversarial clash between prosecution and defence) finds its way into the jury room.

As is well known, Twitter offers a micro-blogging text service – each time in 140 characters whereby users of the service can post tweets for others to read and respond directly to. Internet links can also be posted and accessed. It is a powerful way of discovering what is happening just now and also participating in discussion of those events.

Problematic information flows in the electronic era
We can think of electronic media as posing two distinct sorts of challenge to criminal court proceedings. In the first type of challenge, untested information/material flows into the jury room, for example when a juror does private internet research away from the courtroom and later discloses the results to fellow jurors during their deliberations. Secondly, there may a problematic flow of information/opinion away from the jury room. This could arise via tweet updates on jury room experiences – including deliberations or simply ‘blogging’ about the experience of jury service.

Why might disclosure of a juror’s private research to fellow jurors be troublesome?

Two main reasons can be advanced here; first as was seen above, it introduces untested and possibly prejudicial material into deliberations. This undermines rules of evidence as there is no opportunity for prosecution/defence to challenge the products of private research. It is also costly where, as a result of the outside interference, a retrial is ordered. Not only is there a financial cost in a retrial, there is also a risk of additional trauma for victims and witnesses caught up in the proceedings when they have to return to court at a later date.

What threats are posed when information/opinion leaves the jury room?

The obvious concern here is that the finality of jury verdicts will be undermined, a feature of English criminal trials that is underpinned by s.8 of the Contempt of Court Act 1981. Separately, it may be thought that juror to juror exchanges would be inhibited and therefore quality of jury deliberations adversely affected.

What is happening in practice?

It is becoming clearer that for a new generation of jurors, the temptation to go online during trial proceedings is difficult to resist.  Research by Cheryl Thomas for the Ministry of Justice in 2010 disclosed that between 5% and 12% of 668 jurors admitted to researching case details on the internet.

In January 2012, juror and university lecturer Theadora Dallas was jailed for breaching the trial judge’s direction not to search internet for trial related materials. She had told fellow jurors what she had found about defendant (including a previous rape allegation). Her actions caused the trial to be halted.

Seven months previously in separate proceedings, another juror Joanna Fraill discussed the progress of jury deliberations on Facebook with a defendant who had been earlier been acquitted in the same proceedings and whose co-defendant (and boyfriend) was waiting to learn his fate. Fraill admitted revealing details of jury deliberations and also doing a Google search on the co-defendant. She was jailed in June 2011 for 8 months.

For some devoted (and possibly addicted) users of social media, the prospect of a lengthy spell of jury service is less than welcome. In Oct 2009 one person summoned for jury service tweeted ‘Wow. Jury Duty. First Time ever. Can I be excused because I can’t be offline for that amount of time?’.

In the next section, technology-induced mistrials and near mistrials in the United States are briefly discussed. These may point up some difficulties that may lie ahead in our own courts. This is followed by discussion of a range of official responses that have been employed to combat threats to the integrity and fairness of jury trials

The US Experience
A snapshot of the first six months of 2009 reveals a flavour of technology-induced mistrials or near mistrials.

1. March 2009: collapse of a federal drugs trial in Florida after 8 out of 12 jurors admitted private online research into defendants’ names and definitions of medical terminology. The trial was in its seventh week when the judge halted the trial.
2. July 2009: political corruption trial against a former state senator – juror tweeted during trial and made posts to his Facebook page – defence motion for a mistrial rejected on the basis that the juror had not read any of the tweets posted to him in response of his original tweet. There had been no flow of information into the jury’s deliberations and therefore no prejudice had been caused to the trial.

Why do jurors engage in private research?
An informed policy response to jurors’ use of social media and electronically available materials ought to be based upon the reasons why jurors engage in such practices. Several such reasons suggest themselves viz:

1. A curiosity to gain background information on key participants in trials.
2. A belief that justice will be better served if more not less ‘information’ is before the jury.
3. Cultural reasons; the younger (and not so young!) juror is accustomed to finding information online and has the technological means (Iphones, Blackberry etc.) and expertise to reach online material. More generally perhaps a dependence on instant communication to friends/access to information.

Possible responses
One fairly drastic solution might be to ban iPhones, Blackberries etc. from the courtroom. An obvious difficulty here is that such a move doesn’t stop out of court communications/information flow. An alternative approach may be for the trial judge to make explicit both the type of technology that jurors are prohibited from using and importantly the reasons why these technologies are being restricted. An example might be, ‘Google Earth may not be used to check location details in the present case’ or, ‘Twitter updates on progress of trial to followers are strictly prohibited’. Jurors would then be told that unless they are each able to abide by the instruction, then it may become necessary to sequester jurors until a verdict is delivered. This type of instruction has been used in US courts.

One possible downside to this approach is that a technology-specific rule is likely to be under-inclusive as technology progresses, so any rules will need regular updating. One US juror is thus reported to have blogged as follows:  ‘Hey guys! I know that jurors aren’t supposed to talk about their trial, but nobody said that they couldn’t live blog it, right? Am I right or am I right?!?!’

By contrast, more generalised instructions for example ‘do not use the internet to research the case’ ‘do not talk about the trial to others’ may cause confusion among jurors about what precisely is covered.

Perhaps more need to be done by way of educating jurors about the reasons why the use of electronic devices is prohibited and spelling out clearly which devices are prohibited and when the prohibition ceases. Judges may also want to spell out clearly the serious consequences of breaching any instruction and remind jurors of the Fraill and Dallas cases, both of which resulted in custodial sentences. Other avenues worth considering include offering encouragement to fellow jurors to inform promptly on jurors who fail to adhere to the instruction prohibition; requiring jurors to make a declaration of non-use of specified devices at the start and conclusion of trial.

At a deeper level however, some instances of juror misconduct may reflect an inappropriately casual attitude towards the important and solemn function of determining the guilt or innocence of fellow citizens. Yet at other times, it might be argued that the inquisitive juror who engages in private research to further their understanding of the case and its background is an entirely different individual to the casual juror – one who takes his/her civic responsibilities entirely seriously and wants to deliver the right verdict. This person is avid for more information and is not content for the legal experts to have the stage solely to themselves.   To meet the concerns of this type of juror, thought may need to be given to the idea of moving away from wholly adversarial trials thereby allowing jurors a more active role within proceedings than they currently enjoy. This would perhaps offer a means of satisfying the curious (and conscientious) juror who has his/her own questions about the events at issue in the trial and remove a principal reason for online activity. One problem with this approach is that jurors may well want to ask of the judge is: ‘Does the defendant have previous convictions?’ and they may not be receptive to the judge’s response as to why that information cannot be given. There is however research in the United States which suggests that some judges (in trials in New York and Pennsylvania) view as a positive experience the practice of allowing jurors to submit written questions during the course of the trial. Perhaps this is something that the English and Welsh criminal court system should be open to exploring.

Across the UK are hundreds of simple local websites that report community news and events.  Crime and anti-social behaviour are the most challenging topics they have to tackle.  In London’s Kings Cross, where I run a website, the crime issues have been acute from anti-social behaviour to murder and large-scale organised crime.  Most local sites do not want to add to local fear of crime by just reporting incidents; we want to publish results and support our local criminal justice professionals in the police, crown prosecution service, courts and prisons.  Finding out what is going on in local courts would be very useful.

I want to keep my community informed about what happens at our local magistrates’ court where justice is dispensed on our behalf.  But as a local website I cannot secure a simple list of upcoming events nor a list of results to publish for all to see.  I would like daily court results and timetables posted to a courts website, preferably with an RSS feed.  After all, you can go to the court and watch from the gallery or see the screens.  I have tried getting basic information from my local magistrates’ court but have been defeated. I sought basic material, such as a list of cases and results (i.e. which local people are up in court and who is innocent and guilty) – the type of information that gives people confidence that the system is working.

Journalists complained to me that even though they have a privileged position, their job was not much easier and getting worse.  They said that court officers seemed confused or ignorant the complex and overlapping protocols of ‘data protection’ and ‘copyright’. As the resources and reach of the local press declines, the courts and the government should make it easier to get basic justice information to the public, not harder.

In 1911, a paper based system where you queued up in person for a chitty with little certainty of success may have been fine; in 2012 it’s wrong; I can’t understand why basic information about our courts isn’t available online.  The courts are awash with procedural paper, presumably generated electronically at some point. It’s very simple to publish to the web these days: all you need is access to email to send a Word document or spreadsheet to the publishing services Scribd or Posterous. Nonetheless, we ought to expect better of a modern transparent system, costing hundreds of million pounds.

The government appointed me to its Crime and Justice Sector Transparency Panel.  With the government’s drive to transparency and open data I tried to get to the bottom of the problem of obtaining electronically routine information about local courts.  I brokered a meeting between a specialist court reporting and news agency, Central News, and Ministry of Justice (MOJ) officials. The court reporters set out a fairly dysfunctional experience as they sought to get basic, consistent, common sense information from Court officials. MOJ staff were very helpful and undertook to address problems but it struck me that, given the other pressures following the riots in summer 2011, MOJ has an insurmountable managerial task to re-educate court staff in the minutiae of information management.

To my mind the issues are more behavioural. Court staff want courts to be open but they have got into some bad habits and arcane procedures. Much could be done with proper leadership signals and setting out the fundamental elements in plain English. So I offered to write down a simple charter for transparency in the courts, of the sort that the Secretary of State and the Senior Presiding Judge could publish as co-signatories and might fit on one side of paper.

With apologies for my lack of precise legal terminology here is a draft, for the way in which the Senior Presiding Judge and Secretary of State for Justice should set out the following basic principles of openness and transparency for courts of all types. This could also apply to tribunals and coroners’ courts with minor adaptation.

Draft Courts Transparency Charter
Courts are open to the public and the media, with only narrow exceptions. This is at the heart of delivery of justice in a modern democracy and a proud national tradition. The government, the judiciary and people who work in courts want courts to be open transparent and comprehensible to the public and the press. But the courts over hundreds of years have evolved into a complex system that is hard for outsiders to understand.

In the interests of transparency and confidence in the justice system, people should be able to find out easily, on the internet:

• what cases are expected to come up in a court from the time that they are scheduled
• name, address and specific charges in all cases available from the time the case is scheduled (see ‘criminal cases’, below)
• the full names, including first names, of judges, prosecution and defence lawyers, witnesses, and other professionals who speak during proceedings (e.g. magistrates’ clerks giving legal advice) from when they are known
• judgments handed down from the end of the working day on which the case is concluded
• next stage of the case

The longstanding openness of courts must not be compromised by data protection or copyright. In particular, well meaning but misplaced concerns about the Data Protection Act 1998 and copyright must not stop the recording and transmission of information presented in open court.

All the above is subject to contempt of court and protection of vulnerable defendants and witnesses – exceptions to immediate transparency that are fundamental to the efficient effective functioning of the justice system. Case information should be flagged where restrictions apply and those restrictions set out in writing.

People who use information illegally or irresponsibly against the interests of efficient, effective justice or in such as way as to compromise the vulnerable may have their access to information withdrawn.

It should be assumed that all information is available to the press and the public, apart from the general exceptions above.

The best courts already meet these principles; we would like all courts to do so.

Criminal cases
In criminal cases, the following basic information should be readily available:

• The full spelling of a defendant’s name.
• Their date of birth and full home address, including door number and postcode.
• The charges against them (including an opportunity to read them).
• Written copies of any reporting restrictions applicable in the case.

Charges should be set out in the form used in Magistrates court – ‘On 23/07/2011 at Oxford Street, London, assaulted Joe Bloggs contrary to section 39 of the Criminal Justice Act 1988’

Moving forward
Since I first published this Charter online in November 2011, I have discussed many of the issues with experts. There are numerous issues that bear upon simple transparency, each of which requires teasing out:

• Contempt of court or information that might prejudice a trial leading to reporting restrictions.
• Protection of vulnerable people such as children, some victims and witnesses.
• Rehabilitation of Offenders Act 1974 – this gives people a basic right to be forgotten as their convictions become ‘spent’. This can be important for rehabilitation and manifests as a removal of the need to declare a crime in some circumstances and ultimately a removal of the record.
• Data protection and privacy; significantly, the Information Commissioner’s Office (ICO) says that in respect of courts data this will be applied in the context of the ROA 1974, which implies a societal resistance to an indelible record.  Very detailed personal information tends to be read out in court such as full name, address and date of birth.
• Copyright; judges, barristers etc. own the copyright to their judgements and argument with no practice in place to waive that, nor grant licences for reuse.
• The lack of a legal underpinning for the traditions of open justice.
• IT systems; it is very simple and very cheap today to publish basic documents to the web of the sort produced in courts.  But we need to understand what is held in MOJ data systems.  A simple start would be to experiment with a court that has a presiding judge or magistrate and chief clerk that want their court to be as open as possible.

We have not as yet seen an attempt to work through this stack of issues.  I am concerned that tackling these issues one at a time will entail bureaucratic inertia, which risks steadily undermining the tradition and practice of open justice.  Open justice is sufficiently valuable in society such that we need rapid, decisive action to reaffirm our national commitment and re-establish open justice for the modern internet age.

Given that we have had open justice for centuries, there is a good case for putting the burden of proof of harm upon people who might seek to constrain open justice.  This requires decisive action by leading judges, the Lord Chief Justice and the Senior Presiding Judge, and the Secretary of State of Home Secretary along the lines of the draft charter.

(c) William Perrin. This is an extract from Justice Wide Open, a collection of working papers published in June 2012 as part of the ‘Open Justice in the Digital Era’ project at the Centre for Law, Justice and Journalism, City University London, http://bit.ly/openjustice.

The definition of ‘blogging’ is now extremely wide, so much so that the term ‘blog’ has become in essence meaningless. A blog can be a ‘web log’ within the original meaning of the word, that is a ‘personal journey’ published on the World Wide Web consisting of discrete entries (‘posts’)’but it can also be a news and comment website such as the UK Human Rights Blog, a photo-sharing website, a website promoting a business.  In fact, practically any website can call itself a blog.

Mainstream newspapers now produce ‘blogs’ online and as such the boundary between traditional journalism and blogging has also become unclear. The number of websites calling themselves blogs is phenomenal. There are now over 70m sites registered on WordPress alone, accounting for 800m page views each week. This is a significant proportion of the total number of internet sites worldwide. Moreover, Twitter allows individual users to publish statements and is in effect a smaller-scale (in respect of length of individual posts) version of blogging within its original meaning.

Ethics should play a role in blogging, in the same way that ethics should play a role in society generally. It is in society’s interest that people are free to follow their chosen system of ethics, as long as their system of ethics does not unduly impinge on the freedom of others. Maintaining this, sometimes uneasy, balance is the basic task of a democratic state. A rough ethical system is emerging in respect of blogging and tweeting. This is not officially enforced by sanctions, but is unofficially enforced by other users. For example, one important principle of blogging is attributing (usually linking to) sources used in a post.

Regulating blogs
Barristers are regulated by the Bar Standards Board and blogging and tweeting are certainly caught by the Code of Conduct: a barrister was recently fined £2,500 for anonymously publishing inappropriate tweets during a trial, conduct which was found to be ‘likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute’. I argue that the Bar Code of Conduct and the Legal Services Act 2007 also place lawyers under a professional obligation to increase public understanding of law through, for example, activities such as blogging. I do not think blogs can or should be regulated by a domestic system of regulation, for the following reasons:

1. It is unworkable. Practically, it would be impossible to regulate all blogging. Hundreds of thousands of blogs are set up each day, let alone posts published, and the term is so elastic that the task would be simply too large and amorphous for any regulator to manage. Even if only popular blogs were targeted, say those over a certain number of hits, what is to stop an individual blogger simply setting up a new blog in order to avoid regulation?
2. The current system already works. Criminal and civil law already provides a reasonable level of regulation. Bloggers, whether their websites are read by one or one million people, are subject to financial penalties for libel or quasi-criminal sanctions if they commit a contempt of court. See, for example, the case of Elizabeth Watson (below), who was sentenced to nine months imprisonment (later suspended) for breaching a court order through information published on her personal website. Additionally, Justice Peart has said in relation to an Irish case involving the ‘Rate-your-solicitor.com’ website that ‘The civil remedies currently available have recently been demonstrated to be an inadequate means of prevention and redress’.
3. Self-regulation already exists. Blogging specifically and social media publishing more generally (notably Twitter) is to a large extent self-regulating. As lawyer and journalist David Allen Green put it in a recent blog post:

Regulation is just not about formal ‘black-letter codes’ with sanctions and enforcement agencies. Regulation also means simply that things are done better than they otherwise would be: for example, when one ‘regulates one’s own conduct’. Bloggers and others in social media are willing and able to call out media excesses and bad journalism. The reaction is immediate and can be brutally frank. They are sometimes wrong, as are formal regulators. But they can take time and allow the media to produce better, more well-informed stories.

Bloggers and others in social media are particularly willing and able to ‘call out’ each other’s conduct. The blogosphere and Twitter provide a vibrant, fast-moving and sometimes rather unforgiving arena for debate. As such, an enormous amount of self-regulation and correction already takes place. This is to a large extent the whole point of social media. People enjoy observing a lively debate, and Twitter demonstrates the extent to which they are also enthusiastic to contribute. Moreover, the more prominent a blogger or blog post, the more it is likely to be the subject of comment and criticism. This is an efficient system as almost by definition the more influential a blog post, the more heavily it is peer-reviewed.

1. There is a significant risk of chilling effect. Notwithstanding the extreme practical difficulties with regulating blogs, the risk of doing so would be to limit the currently vibrant arena for freedom of expression that helps to keep journalists and politicians in check.
2. There is already-existing regulation by other means. Some bloggers (such as lawyers and other professionals) are regulated by other means, thus bolstering the existing criminal and civil remedies available to victims of ‘bad blogging’.  Potentially the most damaging ‘bad blogging’ is a personal attack posted online. As stated above, there is already an array of civil and criminal remedies by which victims of ‘bad blogging’ can seek redress, and a relatively effective means of self-regulation through social media. Practically speaking, I cannot see how victims of ‘bad blogging’ could be given more effective forms of redress except by tweaking the current rules. A formal system of regulation simply would not work.

Correcting the press
The primary reason for setting up the UKHRB was to act as a corrective to bad journalism about human rights, and in under two years it has become a trusted source of information for journalists, politicians, those in government and members of the public. UKHRB operates alongside a number of other excellent legal blogs, run by lawyers, students and enthusiasts for free, which provide a similar service in respect of other areas of law. I would highlight, for example:

• Nearly Legal housing law blog
• UK Supreme Court Blog
• Inforrm
• The Small Places
• Head of Legal
• Human Rights in Ireland
• Law Think
• Jack of Kent
• Charon QC
• Pink Tape
• Eutopia Law
• Panopticon Blog
• Halsbury’s Law Exchange

Human rights is an example of an area of law that is often misrepresented by the mainstream press. This can be the result of a lack of legal expertise amongst journalists, but also represents some newspapers’ editorial positions that are if not anti-human rights, then certainly anti-Human Rights Act. It is no coincidence, in my opinion, that the Human Rights Act 1998 is also widely considered to have bolstered privacy rights and as such threatens the celebrity news-driven business model of most newspapers.

Five examples of bad human rights coverage that have been corrected by UKHRB, include:

Myth one
‘The illegal immigrant who cannot be deported because he had a pet cat’

This claim, and the ensuing ‘Catgate’, is the most famous example of the misrepresentation of human rights law in the past year, and perhaps ever. It involved the Home Secretary’s claim at the Conservative Party Conference: ‘We all know the stories about the Human Rights Act… The illegal immigrant who cannot be deported because – and I am not making this up – he had a pet cat.’

This myth was initially propagated by the press in 2009, and despite being rejected by the judiciary’s press office at the time, the story was repeated a few weeks prior to the Party Conference in the Sunday Telegraph, which is probably why it was included in the Home Secretary’s speech. Moreover, despite the claim subsequently being rubbished by, amongst others, the Justice Secretary who called it a ‘complete nonsense example’, the Daily Mail still reported (‘Truth about Tory catfight: Judge DID rule migrant’s pet was a reason he shouldn’t be deported’) that the Home Secretary’s claim was accurate (for that reason, I placed the newspaper on the ‘legal naughty step’, a ‘regulatory’ innovation by the excellent Nearly Legal housing law blog).

Myth two
‘UK loses three out of four European human rights cases’

On 12 January 2012 the Daily Mail (‘Europe’s war on British justice: UK loses three out of four human rights cases, damning report reveals’) and Daily Telegraph (‘Britain loses three in four cases at human rights court’) reported – entirely uncritically – a report written by a Parliamentary Aide and signed by 10 backbench MPs which claimed the UK lost three out of four cases in the European Court of Human Rights. This was a misleading statistic as it ignored the thousands of cases brought against the UK that are struck out at an earlier stage, which amounts for around 97 per cent of all applications

Myth three
‘Britain can ignore Europe on human rights’

In October 2011 the Times’ front page headline was ‘Britain can ignore Europe on human rights: top judge’. Upon analysis, the headline bore no relation to Lord Judge’s comments to the House of Lords Constitution Committee (see from 10:25). It is also based on a fundamental misunderstanding of how the European Convention on Human Rights has been incorporated into UK law.

Myth four
‘We must regain right to kick out foreign criminals’

A Daily Express editorial comment in respect of a European Court of Human Rights deportation decision was riddled with inaccuracies and misrepresentations of the specific case and human rights law generally.

Myth five
‘Human rights prevented deportation of Phillip Lawrence killer’

This claim is made regularly by newspapers which are seeking to reduce the European Convention on Human Rights’ influence on deportation decisions e.g. see the Daily Telegraph: ‘The government had been prevented from deporting Chindamo to Italy, where he lived as a child, because of the Human Rights Act’. But Chindamo’s case was not decided according to human rights law. As was widely reported at the time of the tribunal decision in 2007, Chindamo’s arguments under the Human Rights Act played second fiddle to the main thrust of his case, which was founded on of EU freedom of movement law.

Despite this, the claim has been repeated for years in order to support a campaign against the Human Rights Act. In my view, there are a number of reasons why human rights law is often misreported, all of which can be applied equally to other poorly reported areas of law:

1. Sloppy journalism: Journalists often write articles about court judgments without reading them first, or about trials which they have not personally attended. The latter is a particular problem in relation to family law – see e.g. Mr Justice Bellamy’s criticism of the Daily Telegraph’s Christopher Booker’s reporting as ’unbalanced, inaccurate and just plain wrong’, a criticism supported by Sir Nicholas Wall in X, Y, and Z & Anor v A Local Authority.

This case has a very interesting history that highlights many of the legal complexities relating to the regulatory and legal sanctions which the Leveson Inquiry is investigating. Although the mother involved was ultimately found by Sir Nicholas Wall to be a fabricator who had coached her daughter to lie about being abused by her ex-partner, her case was taken up enthusiastically by journalists such as Mr Booker and also John Hemming MP, who chose (before Ms Haigh was exposed as a fabricator) to expose the ‘super-injunction’ against her in Parliament. Elizabeth Watson, a ‘private investigator’ who published allegations made by Haigh online, was subsequently sentenced to nine months in prison (later suspended) for contempt of court arising from her blog about the case.

1. No links to primary sources. Newspapers rarely link to primary sources, in particular judgments, which means that online readers are unable to test claims for themselves. This is why UKHRB seeks to publish links to judgments and other primary materials almost as soon as they are available, and I seek to do the same via Twitter. I also campaign regularly for courts to publish more judgment summaries and press releases as the Supreme Court now does to great effect.
2. Lack of dedicated legal correspondents. Legal writer Joshua Rozenberg has told Legal Week that many national newspapers no longer have a designated legal correspondent, meaning that they ‘don’t provide the service they did’.
3. Merging of factual and opinion reporting. The boundary between ‘news’ and ‘opinion’ in newspapers has all but disappeared, and this is confusing for readers. Editorial positions often leak into ‘news’ reporting: for example, reporting immigration decisions critically, quoting MPs with particularly strong views on one side of the debate and representatives of think tanks from only one side of the debate.
4. Wilful/reckless misrepresentation: Some newspapers have mounted campaigns against the Human Rights Act, which is their right, but those campaigns are sometimes bolstered by unbalanced reporting in ‘news’ articles as well as opinion pieces and editorials. The merging of factual reporting with opinion is particularly damaging when reporting the law. Complex rulings are difficult enough to summarise when just sticking to the facts. Adding another slant to the multiplicity of opinions which are already sewn into the fabric of a legal judgment is dangerous and unnecessary.

The final factor mentioned above, wilful/reckless misrepresentation, is the most insidious. It is also the area where social media can and do help create balance through a free market for ideas. UKHRB regularly criticises articles about law in the mainstream media, as well as ‘naming and shaming’ journalists, and enough journalists read the blog (many subscribe by email or Twitter) for this to have some impact. For example, the Daily Telegraph’s Christopher Booker responded directly to my post asking whether journalists need to attend court to report on trials:

I was again attacked last week by a prominent legal blogger, for reporting on cases where the system appears to be going tragically wrong, without having sat for days in court to hear ‘both sides of the story’. 

Recommendations
I would counsel against the idea that in future only accredited journalists should be provided with access to certain places or information privileges (as proposed by Paul Dacre in his evidence to the Leveson Inquiry). Although I understand the rationale: providing an incentive to journalists not to lose their press card by way of a disciplinary sanction; this could have a significant detrimental effect on the work of non-professional ‘citizen’ journalists.

It is also hard to see the justification for rewarding journalists with additional privileges whilst punishing bloggers etc. by removing privileges given that it is the poor ethical conduct of professional journalists that has led to the need for an inquiry into the ethics of the press. The legal blogs mentioned above help to correct bad legal journalism but also improve public understanding of the law. The sheer number, range and quality of legal blogs is in my opinion an excellent example of the public utility which blogging and citizen journalists can provide.

Of course, there are bad blogs too. But any proposed system of regulation which could effect all blogs must be considered very carefully indeed as it risks having a significant chilling effect on the excellent work that many bloggers currently do.

(c) Adam Wagner. This is an extract from Justice Wide Open, a collection of working papers published in June 2012 as part of the ‘Open Justice in the Digital Era’ project at the Centre for Law, Justice and Journalism, City University London, http://bit.ly/openjustice.

The principles of open justice are well established and widely discussed, and the role of the press and journalists in reporting and commenting on the justice system has been the subject of judicial comment and approval. In R v Felixstowe Justices Ex P Leigh, Lord Justice Watkins cited with approval Lord Denning’s comments in The Road to Justice (1955), saying:

‘[The press court reporter] is, I verily believe, the watchdog of justice. If he is to do his job properly and effectively we must hold fast to the principle that every case must be heard and determined in open court. It must not take place behind closed doors. Every member of the public must be entitled to report in the public press all that he has seen and heard. The reason for this rule is the very salutary influence which publicity has for those who work in the light of it…’

and adding:

‘…Those observations suffice to emphasise to the mind of anyone the vital importance of the work of the journalist in reporting court proceedings and, within the bounds of impartiality and fairness, commenting upon the decisions of judges and justices and their behaviour in and conduct of the proceedings.’

But the practicalities of ensuring that justice is not merely done, but is seen to be done, continue to cause problems for those journalists who seek to report on the courts.

Reporters regularly spend time in magistrates’ courts, Crown Courts, the High Court, and sometimes the Court of Appeal, observing and reporting on trials and hearings covering issues ranging from terrorism, murder and rape to shop-lifting, or allegations of medical negligence, and disputes over shoddy building work, land boundaries, or the terms of contracts. It is a simple job, one might think – information is given in open court, and should be reportable, and the basic details, such as names and addresses of defendants, the names of witnesses and so on should be obtainable from the court staff if they are not clearly given in open court. The journalist only has to listen, take a decent note, and write the story.

But the journalist must also know that there are more than 60 separate statutes which cover the activities of the press. A fair number of these feature automatic or discretionary restrictions on what may be reported from a hearing or a trial. None of these restrictions, naturally, limits what the member of the public sitting next to the journalist may say to his chums as he discusses the events of the day in the pub that night – or, perhaps, the musings of the blogger who goes home and writes it all up on his website, in happy ignorance of the law.

Many hearings in criminal courts, particularly those held in the early stages of a case, are covered by automatic restrictions which ban publication of all but the most basic details, so as to avoid prejudicing potential jurors when the case comes to trial.

Criminal and courts also may impose restrictions on reporting. They may order that reports of all or part of a hearing, or trial, should be postponed, again because they believe that media coverage might prejudice the views of potential jurors at a subsequent trial, or decide that some information, such as the identity of a blackmail victim, must be kept from the public and cannot be reported at all.

Orders may give anonymity to juveniles appearing in adult courts, while juveniles appearing in youth courts automatically get anonymity. Courts may give anonymity to witnesses if they believe that doing so will improve their evidence or co-operation with one party or the other. Victims of sexual offences are automatically entitled to lifelong anonymity – and in the near future, no doubt, provisions in the Education Act 2011 which give lifelong anonymity to teachers accused of offences against pupils in their care will come into force.

So far, one might say, so good; most of these restrictions can be justified, at least to some extent.

The difficulty, however, is not with the law, but with the way in which it is applied, or, in the terminology of the digital age, with the human interface. As often happens with IT systems, it is the operator – in the case of the justice system, the judges, magistrates, lawyers, clerks and other officials involved in it – which is the root cause of the problem.

Magistrates and judges in criminal courts sometimes act as if their powers to restrict reporting are unlimited, and impose orders which are beyond their powers. Orders are made at the request of counsel who often appear not to have checked before making a request to see if the court has the power do make the order sought. Although the principles on which reporting restriction orders may be made are well established, courts continually make orders beyond their powers. For example, it is common for courts to purport to make orders banning the identification of adults by using section 39 of the Children and Young Persons Act, which can only be used in relation to those under the age of 18. This damages the principle of open justice – and that damage too often remains, because the media find it too expensive to mount a proper challenge.

Judges have been known to exercise non-existent powers to give anonymity to those accused of sexual offences on the grounds that identifying the defendant will ‘automatically’ identify the victim. This is a nonsense. To say that a hypothetical offender called Artemus Jones raped a woman will not give away his victim’s name or identity. Neither will saying that the rape occurred in a certain town, or giving other details. In reality the judge is usurping the editor’s position; the legislation makes it clear that the onus is on the media to ensure anonymity for sex offence victims, and neither the 1976 or 1992 Act contains any provision empowering a court to order anonymity for an adult defendant.

The Judicial Studies Board – now the Judicial College – has published guidance on reporting restrictions, entitled Reporting Restrictions in the Criminal Courts. The latest edition, published in 2009, superseded separate guides on restrictions for the magistrates’ and Crown Courts. The guide sets out in detail the reporting restrictions which can be imposed, and the requirements which must be met. Yet it seems that few courts or judges have encountered this document, or have referred to it when facing a request for a reporting restriction order.

When the law is applied properly, or if no restrictions are in force or imposed, journalists still find themselves facing other difficulties.

Courts should have specific seating for reporters – but this is often unusable, having been colonised by court officials, probation officers, police and others. Many courts have no press seating.

The Court Standards and Design Guide published on a CD Rom in September 2004 by the Department for Constitutional Affairs – now the Ministry of Justice – seems to accept that the press should have reserved seating in courts. In states, on Page 6.3, in section on Section 6, Design Data Sheets & Court Room Design, under the heading ‘3 Elements of court room design: ‘Whether a courtroom is used for a Magistrates’ (section 7), Crown (section 8) or County Court (section 9) there are elements within the design that are functionally similar or identical. These generic aspects are covered here. They include: judges’/magistrates’ bench, clerk’s desk, witness box, jury desk, press desk, exhibits table, advocates’ bench, secure dock, and natural ventilation of courtrooms.

But security staff in courts have been known to refuse to allow journalists into the body of the court, insisting that they cover cases from the public gallery, where, in many cases the acoustics are bad, the seating unsuitable, the view restricted or minimal, and they are exposed to the risk of threats by those who may not want a case covered or certain details reported. On Thursday 8 March 2012 reporters who arrived at Westminster Magistrates’ Court in central London to cover the first appearance of Royal Navy submariner Petty Officer Edward Devenney on a charge under the Official Secrets Act were told by court staff that they would have to sit in the public gallery, where the journalists say it is extremely difficult to hear what it being said.

The dispute ended when District Judge Daphne Wickham agreed that reporters could sit in the body of the court. A spokesman for HM Courts Service said it was aware of the problem and was ‘addressing the issue’. Making journalists sit in the public gallery is also contrary to the HMCTS guidance on dealing with the media.

In addition, while the criminal courts regularly make orders restricting reporting, these are not kept on a central register. Governments have wasted millions on pounds of expensive and ambitious IT schemes, but nothing has been done to develop a central database through which current reporting restriction orders, and the information they seek to protect, can be double-checked. Any in-house lawyer, news editor or sub-editor who wishes to make sure that a case is not covered by a discretionary reporting restriction, or who wants to check the details of an order, had better do so before 4.30pm or 5pm, when most courts close for the day, because courts also do not have out-of-hours numbers to contact.

This may be the digital age – but when it comes to information technology and ensuring the widest possible publication of what should be public information, the courts remain in the dark ages, while the public often remain in the dark.

Even if one can get through to a court, a fair proportion of staff are unwilling to give journalists details of orders, some have been known to insist that requests must be made in writing, or that they can only photocopy and post the information sought.

The Ministry of Justice was involved during the closing months of the last Labour government in discussions with media organisations about establishing an online database of reporting restriction orders, but the idea has since sunk without trace, a victim of the supposed cost.

An extra difficulty, particularly with criminal courts, is that despite the requirements of the Consolidated Practice Direction  that reporting restriction orders must be written down when they are made, on occasion this simply is not done, with the result that an order might not be recorded properly for days, or might never be put down on paper.

In the civil courts, Part 39 (2) of the Civil Procedure Rules states that ‘The general rule is that a hearing shall be in public’, but judges have been known to refuse to allow journalists in when they do turn up in the apparent belief that they have no right to attend a hearing, as have court security staff.

There are also problems getting information from civil courts. The High Court – including the Family Division – keeps no central register of orders and injunctions. Thus, there is no way to check with the court whether there is an active injunction in force, whether it be a privacy order or one intended to protect children involved in civil proceedings. Inquiries invariably draw the response that one has to know the case number before an order can be tracked, if it can be tracked.

Is this, one wonders, acceptable in this digital, information technology age?

In addition, many claimants who obtain interim injunctions leave them in place and take their cases no further, having in effect obtained a permanent ban which binds anyone and everyone aware of its existence. There are signs that this situation is now changing, following the report on injunctions and super-injunctions produced by a committee set up by the Master or the Rolls, Lord Neuberger.

An extra difficulty in both criminal and civil courts if the frequent, almost knee-jerk refusal of many counsel to allow journalists to have copies of the skeleton arguments they submit to courts before a hearing, even though there have been a number of cases in which judges have declared that journalists should be given copies of the skeletons. In November 2011, barristers involved in a case in which HM Revenue and Customs was challenging the Football League’s rules on insolvency of football clubs refused to give journalists copies of their skeleton arguments, saying they were confidential documents. But Mr Justice David Richards said written arguments prepared by lawyers and parties in civil litigation were not ‘confidential documents’ and should be supplied to journalists, telling HMRC’s counsel: ‘They are not confidential documents. ‘You can do whatever you like with your skeleton arguments. You can post them on a website. Whatever you want.’ He added, ‘I would suggest that you do supply copies of skeletons to the press.’

In 2008 Mr Justice Eady ordered that journalist and legal observer Benjamin Pell should be given copies of skeleton arguments put into court as part of an unsuccessful application to stop Channel 4 broadcasting a programme about former SAS officer Simon Mann, who was at that time being held in Equatorial Guinea on charges of leading a coup attempt intended to overthrow the country’s government. But Mr Justice Eady said the parties did have the right to redact confidential material from the documents.

In 2003, the Court of Appeal, Criminal Division, held that barristers should give journalists copies of the skeleton arguments they prepare for court hearings if they were asked to do so. Lord Justice Judge, as he then was, said the court was supplied with skeleton arguments, which it read before the actual hearing, which analysed a vast amount of material. It would have been a waste of time for the skeletons to be read or repeated in court. The court had concluded that ‘the principle of open justice leads inexorably to the conclusion that written skeleton arguments, or those parts of skeleton arguments adopted by counsel and treated by the court as forming part of his oral submissions, should be disclosed if and when a request to do so is received’.

The media itself is active in working for open justice. Journalists regularly challenge orders made in the criminal courts, because they were wrongly made, or impose a substantial and unjustified restriction on reporting. But judges just as regularly ignore or reject challenges, insisting, in many cases despite clear authority to the contrary, that they have the power to do what they have done. Appeals can be made to the Court of Appeal under section 159 of the Criminal Justice Act 1988 – but these involve considerable costs and time, and more often than not the decision is that the story is simply not worth it.

National, regional and local newspapers are active in the field of open justice, as far as their resources allow. The Times has been campaigning to open up the Family Courts, while The Independent has spent a considerable amount of time and effort in prising open the doors of the Court of Protection, step by step and decision by decision over the past five or six years.

There are justifications for some limits to reporting of cases in both the family courts and the Court of Protection. But as Lord Justice Munby, as he now is, has pointed out: ‘…it must never be forgotten that, with the State’s abandonment of the right to impose capital sentences, orders of the kind which judges of the family courts are typically invited to make in public law proceedings are amongst the most drastic that any judge in any jurisdiction is ever empowered to make’. The family courts can have children removed from their parents, allow them to move abroad with one parent, while the Court of Protection may be asked to decide where a man with severe autism should live, and who should control his life, or even decide if a patient should be allowed to die.

These are powers which should not be exercised behind a veil of secrecy. While confidentiality to protect the individual concerned is justified, the courts and those professionals who give evidence in them should be open to media and public scrutiny. Only then can the public have true confidence that justice is being done, because they can see it being done.

Our criminal and civil justice systems do operate on the principle of open justice – but there are still many issues to be tackled, and many problems which cannot be solved without first being acknowledged.

(c) Mike Dodd. This is an extract from Justice Wide Open, a collection of working papers published in June 2012 as part of the ‘Open Justice in the Digital Era’ project at the Centre for Law, Justice and Journalism, City University London, http://bit.ly/openjustice.

Once again, lobbying – the ‘next scandal waiting to happen’ as David Cameron so presciently put it – is back in the news.

This time the Sunday Times has exposed some of the country’s most prominent military chiefs as seemingly side-stepping the rules on lobbying over defence contracts in return for large cheques from fictitious arms dealers.

It’s almost a year since the  Bureau exposed Bell Pottinger boasting abouts its influence with government to our journalists posing as consultants for the Uzbek cotton industry.

Since then the Government has consulted on plans for a lobby register – a register that has been widely criticised as it would not include in-house lobbyists. The latest sting adds to strength to arguments that any register should include all lobbyists, not just PR agencies.

The role of the Advisory Committee on Business Appointments (Acoba) which scrutinises the new roles of exiting ministers, officers, senior civil servants and special advisers, has also been called into question by the sting. Acoba can ban acceptance of private jobs for up to six months after leaving office and lobbying for up to two years.

But Acoba is completely toothless; it has no powers to punish those who flout the bans. One of the officers stung by the Sunday Times described the rules as having no legality and the system for enforcing them as broken.

An earlier investigation by the Sunday Times revealed that many former ministers and civil servants had set themselves up as private consultants, allowing them to avoid public scrutiny of their relationships with business because they were not required to identify their clients. They were required to gain approval of their consultancy position from Acoba, but did not have to list their clients.

Fourteen former ministers set themselves up as consultants in 2010-11 compared with just one in 2005-06.

The NGO Transparency International has highlighted other problems with Acoba besides its toothlessness, including a lack of transparency over its approval process.

Acoba is not currently bound to publish reasons for its advice and the data that it does publish is inadequate to allow public or media scrutiny – it does not publish information on applications that have been withdrawn, for example.

Neither does Acoba’s remit extend to the future employment of MPs, despite the fact that some MPs, such as committee chairs, have considerable individual influence.

If the government is serious about stamping out ‘cash for access’ scandals, Acoba should be as much a focus as the long-awaited lobbying register.

Print journalism may be in decline, but newsrooms remain colourful places full of hearty laughs and picaresque tales.

Whether it is one journalist likening The Sun to a sociopath with a megaphone or another recalling her dream of kicking British performer Bryan Ferry to death in her attempt to maintain editorial freedom, there is plenty of fun in ‘Enquirer,’ a production by the National Theatre of Scotland in partnership with London Review of Books currently playing in central London.

This is ‘promenade theatre.’ The audience is guided – sometimes too slowly – through room after room of stylised newsroom decor; from the morning’s editorial meeting, to the intimate editor’s office, to the photocopier and water cooler.

Enquirer brings together 90 minutes of verbatim interviews with over 40 journalists recorded across the country during September 2012. The issues are real and relevant: Leveson, Rupert Murdoch and Rebekah Brooks, blogging and tweeting and the death of Sunday Times journalist Marie Colvin.

Related article: The Bureau’s written submission to Lord Justice Leveson

As all the text comes from the mouths of real journalists, it resonates loudly. The ribaldry and the chaos of the newsroom is fluently captured and is matched in visual form even down to the brown-ringed coffee mugs and yellowing cuttings bulging out of desk drawers.

The six performers embody the people who inhabit newsrooms across the world – but who may not do so for much longer: the whisky-drinking older editor in mustard corduroy pants, the hipster intern in a tightly-buttoned checked shirt whose eyes never leave his iPad and the fiery reporter still recovering from frostbite after hours spent before the Old Bailey as a cadet journalist.

But behind every laugh is a sigh for the lost salad days of journalism and for the traditional journalist.

And while most of Enquirer is admiringly elegiac of its subject, the play’s co-writer Deborah Orr has written that ’[j]ournalism itself is both the hero and the villain of this piece’.

The audience is left in no doubt that journalists, too often derided as ‘scumbags’ in the post-Leveson environment, are important actors in a democracy. One of the few journalists to be named in Enquirer is the award-winning Ros Wynne-Jones whose joys and despairs as a war correspondent make her one of the play’s most admirable characters.

But Enquirer does not hide the potential for immoral opportunism among members of the Fourth Estate. The audience eavesdrop on an editorial decision to name two News of the World journalists reportedly on the verge of suicide – as long as the legal department promises publication will not be unduly expensive.

But whether journalists are heroes or villains, Enquirer is rather direct in telling us that their days are numbered.

It offers no answers for print’s future and refuses to recognise the potentials of journalistic and technological innovation.

The script and the stage design are equally pessimistic about the future of journalism. In a final scene heavy with obvious symbolism, the six journalists lie enveloped in shredded newspaper. ‘Is the future of newspapers just a nostalgic add-on to the Internet?’ asks the intern.

The aged editor, a dinosaur of the industry, can only agree.

Enquirer continues until 21 October 2012 at Mother at the Trampery, London.

Professor Richard Leiter, on his blog, The Life of Books, poses ‘The 21st Century Law Library Conundrum: Free Law and Paying to Understand It’:

The digital revolution, that once upon a time promised free access to legal materials, will deliver on that promise; it’s just that the free materials it will deliver, even if it comprises the sum total of all primary law in the country at every level and jurisdiction, will amount to only a minor portion of the materials that lawyers need in order to practice law, and the public needs in order to understand it.

This article explores what more we need in order to understand the law and how this need can be met.

Free access to law
Free access to primary law is of course a prerequisite for the interpretation and understanding of the law. In the UK and most countries with a common law tradition, the cause of free access to law is espoused by the Free Access to Law Movement, a collective of legal information institutes that began with the creation of the Cornell Law School Legal Information Institute in 1992. In the UK we are represented by the British and Irish Legal Information Institute (BAILII), set up in 2000 with the enormous help of the pioneering Australasian Legal Information Institute (AustLII).

In October 2002, at the 4th Law via Internet Conference in Montreal, the LIIs published a joint statement of their philosophy of access to law in the following terms:

Legal information institutes of the world, meeting in Montreal, declare that,

‘Public legal information from all countries and international institutions is part of the common heritage of humanity. Maximising access to this information promotes justice and the rule of law;

Public legal information is digital common property and should be accessible to all on a non-profit basis and free of charge;

Independent non-profit organisations have the right to publish public legal information and the government bodies that create or control that information should provide access to it so that it can be published.’

So, to paraphrase liberally, we have a right to access the laws of our land, free of charge and openly licensed. ‘The problem for aggregators like LII,’ Leiter points out, ‘is that the information that they provide is only as good as the sources available to them. And governments are just not very good sources of their own information.’

In the US, Law.gov is a movement working to raise the quality of government information, proposing a distributed repository of all primary legal materials of the United States. It believes that ‘the primary legal materials of the United States are the raw materials of our democracy. They should be made more broadly available to enable an informed citizenry,’ and that ‘governmental institutions should make these materials available in bulk as distributed, authenticated, well-formatted data.’ In other words, we need more than free access to law; we need free access to good law data.

UK legislation
We were fortunate that the previous administration’s Power of Information agenda was being implemented by the Office of Public Sector Information (OPSI), whose role also includes that of Queen’s Printer (of legislation). In December 2006, the long-awaited Statute Law Database (SLD) was published, having been more than 10 years in development. This provided (subject to a number of shortcomings) point-in-time access to all in-force UK primary legislation since the year dot, and access to all secondary legislation published since 1991. Responsibility for the SLD then lay with the Statutory Publications Office (SPO), part of the Ministry of Justice. In 2008 the decision was taken to merge the SPO into OPSI, who had been publishing all as-enacted legislation since 1988. The merger would bring the online legislative services together, creating a single place where visitors could access the widest range of legislative content held by the government, alongside supporting material. That service is legislation.gov.uk launched in July 2010, which has now replaced the SLD and OPSI legislation services.

The legislation.gov.uk interface provides simple and direct browse access to legislation by type, year and number, and simple or advanced searches to locate matching legislation. Primary legislation can be viewed as at any point in time since 1991. More important than this improved access to legislation, however, is the fact that the content is open. It is all well-structured XML (Extensible Markup Language); any piece of legislation or legislation fragment can be addressed reliably and simply in various useful formats via the URI (uniform resource identifier) scheme; and any list of legislation can be delivered as an Atom feed. And a new licensing model for public sector information was introduced at the same time: the Open Government Licence.

Unfortunately, there are insufficient government resources to maintain an up-to-date, consolidated statute book, as public sector information consultant Shane O’Neill observed:

‘The lack of up-to-date consolidation – no fault of the Legislation.gov.uk team who have laboured valiantly on their Sisyphean task – must be a concern to those who harboured greater ambitions (not least government and judiciary). It leaves access to an up-to-date and consolidated statute book in the hands of those who have invested in and deliver highly exclusive legal information services.’

The legislation.gov.uk service is delivered by The National Archives (of which OPSI is part). John Sheridan describes the development in some detail in an earlier post on the Cornell VoxPopuLII site:

We had two objectives with legislation.gov.uk: to deliver a high quality public service for people who need to consult, cite, and use legislation on the Web; and to expose the UK’s Statute Book as data, for people to take, use, and re-use for whatever purpose or application they wish.

There’s more about the technical project and the people behind it from Jeni Tennison, technical lead and main developer (at TSO), on her blog.

Sheridan is also on the expert panel of technologists advising the government on making public sector information more open and accessible on the web, an initiative which led to the development of data.gov.uk, which currently provides access to over 5,600 central government datasets.

UK case law
Unfortunately, the public provision of case law in the UK is woefully inadequate, and we have to rely on the efforts of the charitable BAILII to collate and deliver anything approaching a comprehensive collection of recent judgments. BAILII does a grand job in the circumstances, but, through no fault on its part, it is not comprehensive and it is not open. The various courts all publish their judgments in their own fashion, with no consistency of approach; in fact the High Court of England and Wales does not publish its own judgments at all, but passes selected handed-down judgments to BAILII (and others) to publish. To make matters worse, our right to access this case law is far from clear. There is some argument whether judges are public servants or not and hence whether their judgments are public sector information or not. In addition, regarding older judgments, the low level of originality required for copyright protection in the UK means that almost all older cases are copyright of either the transcriber or the reporter (or the publisher who commissioned them).

Understanding the law
Does free access to law or, even better, free access to good law data, make the law accessible? Will it empower the average citizen? Unfortunately not. As Leiter says, it is only a fraction of what lawyers need to practice law and the public needs to understand it. The law is not practically accessible: it is difficult to identify, obtain and understand legal resources, and they are frequently out of date. Whilst it is reasonable to expect legal advisers to invest in the necessary commercial services to inform themselves, these services are becoming increasingly unaffordable for the less affluent law practices and third sector advice bodies. For the non-lawyer, the law is all but impenetrable, and solving many legal problems and resolving disputes is in practice affordable only to the rich or those who are eligible for some kind of state support. Lord Justice Toulson in R v Chamber bemoaned the complexity of legislation:

‘To a worryingly large extent, statutory law is not practically accessible today, even to the courts whose constitutional duty it is to interpret and enforce it. There are four principal reasons. … First, the majority of legislation is secondary legislation. … Secondly, the volume of legislation has increased very greatly over the last 40 years … Thirdly, on many subjects the legislation cannot be found in a single place, but in a patchwork of primary and secondary legislation. … Fourthly, there is no comprehensive statute law database with hyperlinks which would enable an intelligent person, by using a search engine, to find out all the legislation on a particular topic.’

The give-us-the-data-and-we’ll-organise-the-world crowd also display a touching naïvety when it comes to the law. For example, on the launch of Legal Opinions on Google Scholar, Anurag Acharya, ‘Distinguished Engineer’ at Google, said:

We think this addition to Google Scholar will empower the average citizen by helping everyone learn more about the laws that govern us all. … we were struck by how readable and accessible these opinions are. Court opinions don’t just describe a decision but also present the reasons that support the decision. In doing so, they explain the intricacies of law in the context of real-life situations.

Any initiative that makes the law more accessible is to be welcomed, but to empower the average citizen you have to go the extra mile, by explaining the law. Lawyers and legal researchers have spent years learning the law and acquiring the skills that enable them to navigate and reliably interpret primary law and precedent. They will find value in free access to law and in Google Scholar and other free services that are built on that, but they and the average citizen need more. That need is met largely by commercial publishers, and while there many smaller independent publishers who provide good value in their niches, as O’Neill observes:

Legal publishing has long been dominated by two huge duopolists (Reed Elsevier’s LexisNexis and ThomsonReuters) whose scale alone enables them to provide a consolidation of the mix of primary, secondary, case law which characterises our common law system. This has created what [barrister Francis Davey] in The Times on 23 May 2006 characterised as ‘a two-tier justice system with only the very rich able to access the full consolidated law while those lawyers doing pro bono work are discriminated against.’

But there is an increasing amount of quality free legal commentary and analysis on the web, and we can dream on.

The law wiki dream
Writing in Times Online in April 2006, the eminent Professor Richard Susskind, legal tech guru and adviser to the great and good, spelt out his vision for a ‘Wikipedia of English law’:

This online resource could be established and maintained collectively by the legal profession; by practitioners, judges, academics and voluntary workers. If leaders in the English legal world are serious about promoting the jurisdiction as world class, here is a genuine opportunity to pioneer, to excel, to provide a wonderful social service, and to leave a substantial legacy. The initiative would evolve a corpus of English law like no other: a resource readily available to lawyers and lay people; a free web of inter-linked materials; packed with scholarly analysis and commentary, supplemented by useful guidance and procedure; rendered intensely practical by the addition of action points and standard documents; and underpinned by direct access to legislation and case law, made available by the Government, perhaps through BAILII. … A Wikipedia of English law could be an evolving, interactive, multimedia legal resource of unprecedented scale and utility.

Susskind referred specifically to wikis and ‘a Wikipedia,’ and that was taken rather literally by those who enthusiastically first took up his challenge. But I don’t believe he necessarily intended it literally, and I don’t believe that ‘a Wikipedia’ or indeed the wiki platform is appropriate. Wikipedia has to be seen as a one-off; no wiki project since has come anywhere near its scale or success. We are most unlikely to build an encyclopedia of UK law from scratch; but why would we try when there is already a vast free legal web?

The free legal web
In 2008, enthused by the developments in open government and by the amount of quality legal commentary that was percolating up on the web, I proposed to set up a service to exploit this – FreeLegalWeb. In the manifesto I listed the free access law resources then available, and I now list them with appropriate updates, here:

• We have free and open access to legislation
• We have other official documents, forms and guidance from government and a commitment to making these resources more accessible and encouraging user generated services.
• We have another substantial free access primary law database – BAILII.
• We have a number of specialists already maintaining specialist law wikis and enthusiasts contributing law articles to Wikipedia.
• We have a growing number of law bloggers, many of whom provide succinct, expert ongoing commentary and analysis.
• We have many other individuals, firms and publishers who publish case summaries, articles, updaters and guidance for free access on their websites.
• We have public, charitable and private services providing free guidance and fora for the public faced with legal processes.
• And finally, we have Web 2.0 technologies that enable (potentially) all these sources to be interrogated, aggregated, ‘mashed up’ and repurposed.

That sounded like a free legal web to me; all we had to do was join it up and curate it! But how feasible is that?

A ‘bunch of goo’?
Bob Berring, legal research guru and Professor of Law at the University of California, Berkeley, gave his thoughts on the matter on YouTube in October 2009. He believes that government efforts in the provision of free legal information have failed because there are no incentives; and that ‘volunteer efforts’, worthy as they may be, are unlikely to be sustained. He rightly says that legal information is not easily packaged: we need a map and a compass to navigate it; it needs to be organised and value added. I think we all agree with that. But his conclusion appears to be that only Wexis have sufficient incentive and only they can mobilise the necessary army to add sufficient value for it to be useful. For Bob, the free legal information that’s out there is ‘a bunch of goo,’ and the only thing that can sort out the mess is ‘the market system’. That’s clearly not the case:

• government has an incentive to make legal information more accessible
• the legal profession has an incentive to make legal information more accessible
• various non-profits have an incentive to make legal information more accessible
• citizens have an incentive to make legal information more accessible
• and there are many private enterprises short of Wexis who have an incentive to make legal information more accessible.

… How?

Curating the legal web
For help I’m increasingly turning to Jason Wilson, Vice President at Jones McClure Publishing. He has a nice clean minimalist blog^[18] with great pics accompanying each post. More importantly, he’s interested in the kind of questions I’m also trying to answer, such as Can we crowdsource reliable analytical legal content?

I have given considerable thought to this problem (and I have a greater interest in solving it than most), and I just don’t see how a Demand Media or similar model could ever produce good or reliable analytical material.[19]

But in the next breath he acknowledges that a lot of good stuff has indeed already been generated by the crowds, and asks how we will organise that legal web. Actually the question is buried at the end of a dense post about ‘exploded data’ (the value of analytical content):

My thought at this point is that the legal web is in an infancy that we can’t even fathom yet. There is cloud of associated information that our current computer assisted legal research vendors cannot give to us based on their algorithms, especially when they remain in walled-in gardens that don’t account for the vast and valuable information being created by users. The question is whether we will step up to organize this sea of data, or wait until a program can do it for us?

Moving on, in a more accessible post on Slaw he asks how we can effectively curate the legal web:

‘Curating this growing body of analytical content will be difficult. It suggests a person-machine process of locating and separating good content from bad, and categorising, verifying, authenticating, and editorialising that content. It will undoubtedly require the creation of a rich taxonomy to help organize and manage the content for later discovery, clean metadata, and a good search engine, and raises issues from data permanency to copyrights to brand dilution. It’s a mess. But a worthy one I think.’

and in the comments to that post:

‘I suppose the point to my post is whether we can wrap a wiki-like structure and interface around the legal web, and make it a destination for learning about both general topics and specific issues, rather than just a portal for all results that match search terms.’

Yes we can! However clever the machine, these tasks – ‘locating and separating good content from bad, and categorising, verifying, authenticating, and editorialising’ – to a large degree require human intervention. But that intervention need only be light touch once we figure out how most effectively to harness the wisdom of the crowds.

Conclusion
Free access to law is not a panacea, but there is plenty of scope for delivering more accessible law by leveraging not just free law but the free legal web; for delivering free services that are good enough for the average citizen, and for lower cost commercial services that are good enough for the average lawyer. ‘Big Law’ will continue to need Wexis, but the ‘lower-tier’ can be much better served.

The final word I will leave with Tom Bruce, founder of Cornell LII:

We need to make informed choices between inexpensive automated approaches that work by brute force and the hand-crafted, highly-accurate approaches of legal bibliography that are not always scalable or affordable. We need to recalibrate what we mean by ‘authority’, and begin to think about measures of quality and reliability for legal text that avoid the creation of unnatural monopolies in legal information.

(c) Nick Holmes. This is an extract from Justice Wide Open, a collection of working papers published in June 2012 as part of the ‘Open Justice in the Digital Era’ project at the Centre for Law, Justice and Journalism, City University London, http://bit.ly/openjustice.

As ‘gatekeepers of information’ librarians are most concerned with ensuring the best quality information makes its way to our users, whoever they might be. Law librarians or legal information professionals work within all sorts of organisations: academic institutions, law firms, barristers’ chambers, government libraries, inns libraries and in-house within companies. The last 10-15 years have seen a massive shift in the nature of legal research and the tools available to us and yet we are still in a situation where many of the primary legal materials in the UK are inaccessible to those who cannot afford the cost of subscription legal databases.

Librarians have always been very pro-active in pushing those resources provided at no cost, alongside the paid-for commercial services that we have no choice but to rely upon. These recommendations often materialise in the form of legal gateways, created by librarians to point their users in the direction of useful websites. The first of these was SOSIG Law (Social Sciences Information Gateway), a huge portal to law websites available at no cost on the internet. The resources were all evaluated and described by librarians. This later became the Intute service when funding ceased, and now with JISC halting funding in 2011, the Institute of Advanced Legal Studies have taken over the data to integrate into their Eagle-I service.

Others of note in the UK include Lawbore, the portal for law students from City University, created to ensure students would know where to find legal information online (even if they went on to work in places where legal databases would be unavailable), and the many examples of collaborations in other jurisdictions like EISIL from the United States. Within universities the push to invest in repositories has often been driven by the librarians, wanting to provide a service free to all, sharing the institution’s intellectual capital with the world whilst loosening the chains of reliance on prohibitive journal subscriptions.

Essentially librarians play a role in promoting resources and advocating on behalf of our users, representing them against often-aggressive commercial publishers. Can we really make a difference?

In the US the AALL (American Association of Law Libraries) have had enormous influence on the way federal and state documents are made available online with their un-snappily entitled ‘Principles and Core Values Concerning Public Information on Government Websites’. This document and accompanying pressure from AALL lays down minimum requirements for the publication of legal materials on the basis of accessibility, reliability, comprehensiveness and preservation. Importantly they draw out what is termed ‘official’, an important point we will visit later in this paper. This commitment to ensuring that the electronic document is as trustworthy as the print material has resulted in its adoption by the Uniform Law Commissioners in the US in the recently enacted Uniform Electronic Legal Materials Act.

The current situation
In the UK paid-for services still dominate: the long-running duopoly of Lexis and Westlaw overshadowing all others. In the last one to two years the situation has altered a little in that smaller publishers have been withdrawing their content to run their own specialised services on their own platforms (Informa, Jordans). The ICLR (Incorporated Council of Law Reporting) have also created their own service ICLR Online, but at present the content remains on other platforms too.

Whilst it is preferable to see the range of products increasing, it does leave information services and libraries in a difficult spot; we often still need to subscribe to the big two, but then need to pay extra for these niche products to retain our coverage. Many libraries have a policy of e-first, which means that they have cut the physical hard copy (to increase access, save space) and as most services don’t allow you to archive content, as soon as you cancel an electronic subscription access to all content disappears, no matter how many years you may have been subscribing.

In addition many database providers focus their services around the requirements of their biggest customers, the global law firms, meaning that often the academic customers lose out in terms of functionality that works for them.

So what can you find for free online?
There is a great deal of law available at no cost online, certainly compared to a decade ago. It is however, not always easy to find and sites are not ‘joined up’ to create any kind of cohesive picture. The one stop shop does not exist.

In many countries now there is a culture of publishing judgments online, usually in full text. This may be via the specific court or might be held on a website run by a legal information institute (more on these later). Usually these are published on a case-by-case basis without the value-added features you would expect from a subscription service such as linking to similar cases or related legislation. Many courts publish their decisions online almost instantaneously and there are some great examples of those who extend this with commentary too: the UK Supreme Court blog being a prime example.

Similarly many governments publish their legislation online, however the big stumbling block here is how the amendments are incorporated.

Access to treaties and other instruments of ratification with legal impact is also scattered widely across the web. The disparate nature of these resources means that it can be quite a struggle to find what you need.

Journals are very tied down. There are a few sources of free online legal journals like DOAJ (Directory of Open Access Journals) but in the UK these make for shamefully slim pickings. Academic writers gain their prestige via published work and the journal publishers make the most of this.

To gain an insight into what’s available you simply need to look at some of the gateways mentioned at the beginning of this paper, however for primary legal materials the big two are as follows:

BAILII
As the main resource for free legal material in the UK, BAILII offers access to both case law and legislation. There are omissions, notably the criminal courts but what BAILII has achieved in a country so enslaved by commercial legal publishers is pretty remarkable. BAILII contains 80 databases and covers six jurisdictions, however there is a far greater volume of content post 1997.

BAILII undertook some really useful work for the academic community under its OpenLaw project; asking lecturers and librarians for their recommendations of the key cases in each subject area and digitising 2500 of them. It has also made excellent progress around law reform coverage; making available Law Commission publications, and painstakingly scanning and converting over 6,900 Privy Council judgments.

BAILII as a legal information institute (in this case the British and Irish Legal Information Institute) first launched in 2000, some eight years after the first incarnation of these at Cornell University Law School in 1992, which published US Supreme Court judgments online. After Cornell, came LexUM from the University of Montreal and the giant AustLII (University of Technology, Sydney and University of New South Wales) in 1995.

You might ask what connects these LIIs? What features characterise them? Graham Greenleaf one of the founding members of AustLII describes their characteristics thus:

1. They publish legal information from more than one source (not just ‘their own’ information), for free access via the internet, and Justice Wide Open

2. They collaborate with each other through membership of the ‘Free Access to Law Movement’ (FALM).

Greenleaf goes on to list other features which are shared by the majority of LIIs, including collaboration through data sharing networks, independence of government and the use of open source search engines.

The FALM is a collaborative and decentralised initiative formed in 2002, representing in excess of 900 databases from over 139 countries. Their principles are enshrined within a Declaration on Free Access to Law,4 and aims centre around the adoption of open standards, sustainability of models and effectiveness of use.

Put simply, the LII concept is to gather all the free legal resources onto one uncluttered searchable platform, using a powerful search engine to index the material and allow users to search across different types of legal material.

Legislation.gov.uk
It has been a rocky road for the provision of free online legislation in the UK. We have had free access to legislation since 1996, then published by Her Majesty’s Stationery Office (HMSO) (later known as the Office of Public Sector Information [OPSI]). Coverage was extended some years later to 1988, but until 2006 only the original un-amended statutes were available. Whispers of the development of a database of amended legislation had been circulating since the early 1990s and the Statute Law Database (SLD) finally arose in 2006. OPSI and the SLD were combined and re-launched as Legislation.gov.uk in July 2010. It was heralded by Lord McNally, then Minister of State and Deputy Leader of the House of Lords, who celebrated its launch with the following words:

‘This is the public’s statute book. Legislation.gov.uk presents complex information in a clear and intuitive way. This is groundbreaking work that puts democracy at the heart of legislation and makes a major contribution to the government’s transparency agenda.’

Ironically it is not until you have experienced navigating a publication like Halsbury’s Statutes in hard copy that you come to realise why our law might be so difficult to make provision for online.

There are so many different ways we might require the law for a start: as it was when given royal assent, as amended today and also at a particular point in time.

The current situation is that we can find much of the first for free, less than half of the second and little of the last.

What about other countries?
In March 2010 there were 33 members of the Free Access to Law Movement. Their coverage and origins all differ enormously, despite their shared mission. As we have seen, many LIIs have universities as their driving force and indeed financial backers (AustLII, the original LII at Cornell, HKLII), others are funded by non-profit trusts, foundations or NGOs. This can be seen via BAILII whose Trust comprises courts, universities and the legal profession. The legal profession has funded LIIs like CanLII, Juri Burkina and CyLaw, as a professional and public service. Some of the problems faced by the LIIs include overcoming technology issues, locating investment and finding people to commit. Here’s a quick overview of some of the LIIs from Graham Greenleaf:

• AustLII (Australasian Legal Information Institute) started 1995, now contains nearly 400 databases of Australian law, including decisions of 120 courts and tribunals

• CanLII (Canadian Legal Information Institute) started 1993 as LexUM. LexUM then developed CanLII in 2000. CanLII contains over 150 databases – including historical and up to date versions of legislation from all 14 jurisdictions

• HKLII (Hong Kong Legal Information Institute) commenced in 2002 with 13 databases and a bilingual system

• PacLII (Pacific Islands Legal Information Institute) provides 180 databases covering the laws of 20 islands/territories

Other LIIs include NZLII (New Zealand), CyLaw (Cyprus), JuriBurkina (Burkina Faso) and SALII (Southern Africa). More recently LIIs have been created to allow federated searching: one platform to search several LIIs at once. There are plans afoot for a EuroLII but currently those existing include:

• AsianLII – portal covering 28 Asian countries (3 LIIs)

• CommonLII – portal containing data from 56 commonwealth countries (11 LIIs). The inclusion of the full series of the English Reports was an exciting addition

• WorldLII – portal containing data from 183 countries (17 LIIs). Allows searching of 1400 databases, including at least two million cases.

Do professionals really use the LIIs?
As the situation in each country is so different, the success of the LIIs isn’t easy to measure. In both Australia and Canada, there does appear to have been a real move towards using the free resources provided by the LIIs in tandem, and sometimes in preference to the paid-for subscriptions. A survey on the use of CanLII as far back as 2008 found that 43% of Canadian lawyers said they could do half their legal research via CanLII, and 71% stated that it had reduced their legal information costs.

In the UK BAILII is without doubt a popular service, with 40,000 unique visitors each week, viewing approximately 800,000 pages each week. A snapshot of the use of free resources for law can be seen in an MSc dissertation completed at City University in 2010. Sarah Jones focused her research around barristers’ chambers, surveying chambers librarians and barristers. Sixty-four per cent of those surveyed used BAILII at least a few times a week, with 52 per cent using sites like AustLII and CommonLII a few times a week. Participants also noted high use of sites like Eur-Lex (official portal of the European Union) and HUDOC (human rights materials).

Free legislation sites were not held in much esteem; with too many issues perceived around trusting the currency of such a source. Seventy per cent of those surveyed said they would always use a subscription site for legislation.

BAILII itself has recently conducted a detailed survey but the results are not available at time of going to press. A survey focused on an individual set of chambers in 2011 revealed approximately 500 pages of the BAILII site being accessed weekly.

When is material ‘official’?
Countries have been slow to grant their online representation of legal materials with the same ‘official’ status given to the print version. Claire Germain speaks of the confusion between ‘official’ and ‘authentic’, sometimes used interchangeably within this context and on other occasions as separate concepts. She defines authenticity as ‘an online authentic legal resource is one for which a government entity has verified the content to be complete and unaltered from the version approved or published by the content originator’. This authenticity would normally be provided by encryption technologies.

In the UK the requirement to use the ‘official’ report within court (the Law Reports published by the Incorporated Council of Law Reporting), as per Lord Woolf’s practice direction means that reports on BAILII are useful for background research but not for court use. This is not unusual: many countries will not recognise the official status of their materials published online. In the European Union, the Eur-Lex website states that ‘only European Union legislation published in paper editions of the Official Journal of the European Union is deemed authentic’. France seems to stand out in this realm by declaring their free digital versions authentic in 2004.

The backlash to LIIs
In September 2011 an editorial in the Guardian discussed the online provision of judgments to the public, questioning to what extent a site like BAILII was actually improving access to judgments, particularly in light of it not allowing search engines like Google to index its judgments. BAILII says this is because judgments may sometimes need to be removed or altered at a later date, and not every search engine can guarantee that pages will not be cached, making older versions visible. Sir Henry Brooke, retiring Chairman of the BAILII trustees, defends their position further by stating that they provide ‘a searchable database of judgments on one website… [which is] sufficient to make this source of law freely available to the public’. He goes on to state that making it available to other search engines is unnecessary to achieve this objective.

Free as in beer or free as in speech?
Graham Greenleaf speaking at the Institute of Advanced Legal Studies, London, in January, touched upon what we actually mean by ‘free access’ and how the concept fits in to our assumed values of liberty, democracy and the rule of law. Those aspects which relate to rule of law are interesting on several levels; does making legal information more accessible make justice more accessible?

Some commentators have asked whether UK case law should be made accessible in the same way as UK legislation, but Greenleaf questions this: ‘If the rule of law belongs to citizens, not the State, access to law in ways not controlled by the State is clearly desirable, perhaps essential’.

The main driver for wanting to open up the law is that anyone should be able to find the law as it stands at the present time. The principle of ‘ignorance of the law is no excuse’ can be traced back to Roman times, and yet in 2012 we find ourselves in the position that access to the primary legal materials of the UK to those without a subscription to a commercial legal database is fairly patchy. A member of the public with no legal experience would find it extremely difficult, verging on impossible, to look for both the case law and legislation relating to their particular situation and be sure they had all the information required. We could go further and ask whether it is even enough to simply provide access to the law? How can it be made understandable too?

Legal blogs have made inroads here, and offer those interested in legal developments, whether breaking cases, new legislation or legal reform and provide a place not only to gain this understanding but also to engage through comments. Law becomes accessible via the excellent critique offered by bloggers like the writers of the UK Human Rights Blog, The Small Places, PinkTape, Head of Legal and Nearly Legal. ‘Current Awareness’ sites like the one provided by the Inner Temple Library also play a big role in flagging up these legal developments, and the microblogging tool Twitter has had a significant impact on how such developments are disseminated. Our access to legal materials online for free is certainly improving, but our view of the landscape is far from panoramic.

(c) Emily Allbon. This is an extract from Justice Wide Open, a collection of working papers published in June 2012 as part of the ‘Open Justice in the Digital Era’ project at the Centre for Law, Justice and Journalism, City University London, http://bit.ly/openjustice.