Friday, July 17, 2015

2015-07-15 UK: A veil of secrecy over court records

2015-07-15 UK: A veil of secrecy over court records
The right to access court records is part of the essential right for “fair, public hearing” in Human Rights. It is also key to transparency of the courts, and based on centuries of experience - indispensable for the safeguard of the integrity of the courts.
Attempt to access R v Anthony Long in Old Bailey
As part of routine survey of access to court records, Request to Inspect was filed on location in Old Bailey in June 2015. No access was permitted on location, but Court personnel agreed to accept a written request. [2]
When asked, who the Request should be addressed to, as custodian of the records in Old Bailey, it became clear that the situation was ambiguous. Initial response was that there was no longer “Clerk of the Court”, or “Chief Clerk” in Old Bailey, only “Operations Manager”. However, eventually, a person named “Phil Joseph” was identified as the “Clerk of the Court”. There is no way to verify such information online. [8]
Written Response [3] was received in July 2015 on the Request to Inspect, which was treated as a Freedom of Information Request. The Request was denied, based on provisions of the Freedom of Information Act 2000, which exempt court records.
Of note, the Response says:
“There is no general right to inspect the court records...”
It should also be noted that the Response was unsigned, the title and authority of its author not listed, and it was provided as a Word file.
Reply, asking for a valid Response record was sent in July 2015. [4]
The case, subject of the Request (R v Anthony Long), was selected at random from cases, which were on the court calendar on that day. And the specific record, which was subject of the request, was akin to summons – commencing record in criminal litigation. It was selected since it was likely to include practically no information beyond the names of the parties, court name, and article of the criminal code, which was the cause of action.
The Response confirmed that the record existed.
Further search uncovered the Case Calendar of R v Anthony Long on a non-government, commercial web page (, albeit, with parties' names redacted. The site provided much more extensive information (presumably copied from court records) than was requested. However, such records are obviously unofficial, unauthentic court records.
General, official public information on Old Bailey
The scarcity of official public information regarding Old Bailey, which can be discovered online, is surprising – not even the names of the judges, name of the Clerk of the Court, Index of All Cases, Court Calendar, or Index of Judgments...
In July 2015, request was filed with “Enquiries” in Old Baily, asking whether any such basic data regarding the Court was public information, and whether it was readily available online.
Unofficial access through a commercial site:
Public access to official, authentic court records appears to be universally denied in the UK today. However, public access is provided to unofficial, unauthentic court records. Given the extensive publication of court records through the unofficial, unauthentic data in, it appears that issues of “privacy” and “data protection” are irrelevant.
Similar practices (denial of access to authentic records, and providing access to unauthentic, often fraudulent records instead) were documented in the courts of California, US (federal) and Israel. However, in the latter three jurisdictions, such practices were implemented through fraudulent IT systems of the courts themselves.
In contrast, in the UK, public access to information by the courts themselves is entirely denied. The alternative information is provided through a commercial site.
In all cases, the end result is the same: The public is denied access to official, authentic court records, and is therefore denied the right to distinguish between valid and effectual court records and void, not voidable, fraudulent court records.
Ambiguity regarding the identity of the person, who holds the ultimate responsibility as custodian of records in Old Bailey
Of particular concern is the ambiguity regarding the identity of the person, who holds the ultimate responsibility as custodian of court files and court records in Old Bailey, and likewise, in other UK courts. Such conditions are remarkable, since the significance of such position, relative to integrity of the courts was recognized for centuries. For example, in establishing the courts in Palestine under the British Mandate period, the Courts Ordinance (registration office), 1936, established a “Chief Clerk” in each court, whose duties included “the excellent maintenance of records and registries”, and the authentication of court records “True Copy of the Original”.
The attempt to describe an Operations Manager as the person in charge is remarkably similar to the ploys in the US (CEO of the court) and in Israel (Manager) in recent years, which undermine the integrity of office of the Chief Clerk and integrity of court records.
Historically, lack of integrity in the office of the clerk of the court was typical of periods of massive court corruption. [16]
Access to court records in the UK today
In the UK, purportedly “open justice has been a principle since the 17th century.” [12-14] However, whereas in the past, papers filed by parties were read out in court, today, in most courts in the UK and beyond, most of the litigation is conducted through the filing of records and orders, which are never read out in open court. Therefore, absent access to court records, “open justice” is meaningless.
Access to court records in the UK appears to be under assault, with its foundations are in the Freedom of Information Act 2000 and the Data Protection Act 1998.
Powers for judges to allow evidence to be heard in private, in civil cases involving national security, were enacted in Parliament in 2013, in the context of the “War on Terror”. However, concern is that such powers are abused to cover up serious Human Rights abuses by government, which were the underlying matter in cases, where such powers were invoked. [13]
Human Rights Perspective
About half of the first dozen articles of the Universal Declaration of Human Rights, pertain to the maintenance of valid, fair court system.
Access to court records is deemed integral to the right for “fair, public hearing” (Article 10). Absent such access, validity and fairness of the courts cannot be maintained.
Furthermore, absent access to court records in criminal matters, the right of Habeas Corpus cannot be guaranteed, and with it the right for Liberty itself. []
The same principle can be demonstrated by the nature of key cases, related to media request to access court records in the UK in recent years. [12-14]
Therefore, the restrictions on public access to court records in the UK should be deemed a fundamental violation of the Human Rights.
International perspective
Today, access to court records in the UK is by far more restricted than in the US, Canada, or even Israel. Paradoxically, in the latter three nations, the origins of the right to access court records are in the English common law. The US Supreme Court found such right, originating in the English common law, essential in order to enable the citizens to “keep a watchful eye on government”. The Israeli Supreme Court declared such right “a fundamental principle of a democratic regime”. Moreover, in all three nations, US, Canada, Israel it is considered a “constitutional right”... (whether complied with or not...)
Centuries of experience shows that absent public access to court records and absent integrity in office of the Clerk of the Court, it is impossible to safeguard the integrity of the judicial process.
0000-00-00 UK: Access to court records, to inspect and to copy – London Central Criminal Court (Old Bailey) – Index of records and links
Request to Inspect and related Old Bailey records
2015-06-16 R v Long, Anthony (T20147427) in the London Central Criminal Court (Old Bailey) – Request to Inspect court record
2015-07-07 FOIA Response (FOI/98318) in re: R v Long, Anthony (T20147427) in the London Central Criminal Court (Old Bailey) – Request to Inspect court record
2015-07-12 Reply on FOIA Response (FOI/98318) in re: R v Long, Anthony (T20147427) in the London Central Criminal Court (Old Bailey) – Request to Inspect court record
2015-07-11 R v Long, Anthony (T20147427) in the London Central Criminal Court (Old Bailey) – Case Calendar – commercial web site.
2015-07-12 Old Bailey Online - official court web page
2015-07-12 Enquiry on readily available online information, in re: Central Criminal Court, London (Old Bailey)
2015-00-00 Fund-raising note, listing “Phil Joseph” - only mention found online of Phil Joseph, presumably Clerk of the Court, Central Criminal Court, London
Web pages of other Crown Courts, UK, including mention of “Court Clerk” and case information
Access through a commercial vendor
2015-07-13 Survey of public access to UK Crown Court records through unofficial, commercial site:
General records on access to court records in the EU and UK
2012-04-03 The Guardian's court victory is an important step towards transparency_The Guardian, UK…/guardian-court-victory-transpa…
2012-04-03 Judgment over extradition case is victory for open justice__The Guardian, UK…/groundbreaking-judgment-extrad…
2012-04-03 Judgment in Guardian News and Media Ltd v City of Westminster Magistrates Court (C1/2011/1019) in the Court of Appeal, London, UK
2014-07-23 Ministers demand five trials in secret: New powers used to block access to court cases_ Daily Mail-UK…/Ministers-demand-five-trials-s…
2009-03 Access to Judicial Information Report R-G 5_Open Society Initiative, US
2013-00-00 National Practices With Regard to the Accessibility of Court Documents _European Parliament
Access to information, UK Supreme Court
Criminal records, court records and police records_ ICO: Information Commission Office, UK
Office of the clerk and integrity of the courts
2002-00-00 Messinger, I Scott: Order in The Court - History of Clerks of United States Courts, Federal Judicial Center (2002)
Online resources
British and Irish Legal Information Institute (Bailii)
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