JILT 1997 (3) - Laurie West-Knights
The AustLII Paradigm [1]
L.J. West-Knights
Barrister
ljwk@lix.compulink.co.uk
Contents
This is a Commentary published on 31 October 1997
Citation: West-Knights L. J, 'The AustLII Paradigm', Commentary, 1997 (3) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/leginfo/97_3lwk/>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1997_3/west/>
1. Introduction to AustLII
The Australasian Legal Information Institute (AustLII) was set up at the beginning of 1995 by Andrew Mowbray, Senior Lecturer in Law at the University of Technology in Sydney, and Graham Greenleaf, Associate Professor of Law, University of New South Wales. They were joined by Geoffrey King, Lecturer in Law at UTS, and essentially until just recently, those 3 individuals were AustLII. It started on a shoestring, and still receives funding that is modest on any scale.
It received its first funding in mid-1995, when it dropped the 'prototype' status from its web pages. Its ethos, and underlying principle, is that of causing the law to be made publicly available, intelligibly and free on the Internet. In addition to making legal resources accessible, it is actively engaged in high-level study into advanced methods of legal research using computers. Since 1995 its story has been one of heroic endeavours to obtain the basic raw data i.e. cases, legislation and other primary sources such as treaties. This last has been facilitated by specific grants from the Department of Foreign Affairs and Trade, and Australia is believed to be the only country to have a comprehensive database of the treaties to which it is a party, freely available, anywhere.
At the moment of writing, the databases consist of over 500,000 'pages' (nearly 3 Gigabytes) of primary legal information, with some 13 million hypertext links. There is full, and rich, hypertext linking both between and within primary and secondary materials, and the automatic 'noting up' of case and legislation citation. In addition, there is available for use a highly-flexible free text retrieval search engine, known as SINO and developed by Andrew Mowbray. The case materials go as far back as 1947 is some instances. For fuller details see The AustLII Papers published in the last issue of JILT.
The Australian Supreme Court (cases) and Queensland and Tasmania (legislation) are now notable for their refusing thus far to give to AustLII 'their law'. That is not to say that those materials will not find their way onto the Internet in due course, and probably gratis, but currently they are not available save in traditional forms, and the respective bodies are resisting requests to provide their materials to AustLII for incorporation into a comprehensive single-site database.
AustLII is also creating a 'Reconciliation and Social Justice Library' in conjunction with the Council for Aboriginal Reconciliation; Stage 1 already contains over 100 megabytes of text, making it the largest secondary law resource at AustLII. However, it is the enormous strides in 'liberating' primary law that have made AustLII the subject of international interest, and the heading of this article describes the author's personal vision of achieving a similar (but more ambitious) result in England & Wales by the start of the next millennium [2].
2. Recent Progress in the UK
Whilst there was some emerging awareness of the work of AustLII, it is only remarkably recently that real public note of the implications has been taken in the UK. In February 1997 the Society for Computers & Law ('SCL') submitted a paper by its Executive to the Chancellor of the Duchy of Lancaster in response to the Government Green Paper ' Government Direct'. This sets out the 'bare bones', for the Internet literate, of what the AustLII paradigm is about. In effect it is making all of the law, be it common law, statutory or quasi-statutory, fully interlinked using HTML, available to all people, free of charge at the point of use, using the Internet as the medium of distribution.
Since then progress has in some senses been remarkable. AustLII, in the person of Andrew Mowbray and Geoff King, gave a very warmly-received presentation at the SCL's flagship Conference in March of this year. Shortly before the finalising the draft of the SCL paper, the author was asked to attend the Civil Litigation Working Party of the national consulting body ITAC (Information Technology and the Courts) and spoke for 5 minutes about AustLII to a number of Judges, Supreme Court Masters and civil servants. The reaction was one of some surprise, and the observation was 'this is all pretty millennial - what about the real problems we face on the ground today?'. The answer, mildly tongue in cheek, was that this could be regarded that as an endorsement, the millennium being then less than 3 years away (and indeed that remark provided the focus for selecting the millennium as the target date).
The fact is, or at least was, that to much of the judiciary the Internet constitutes a subject of which they are suspicious and doubting, seeing it as a toy for computer hobbyists, requiring an obsessive interest in computers and having little to offer serious practising lawyers. And yet, only two months after that meeting the author gave a full-scale presentation of the AustLII work to that same body, which promptly and unanimously endorsed the Paradigm (and also made a strong recommendation in respect of the Statute Law Database, which will be considered further below). The Chairman of the Working Party, Mr. Justice Cresswell, is now a keen proponent of the Internet. Subsequently Internet legal databases have been demonstrated by the author to, amongst others, members of the Judicial Studies Board, Commercial Court Judges, Court of Appeal Judges and the Lord Chief Justice. The main ITAC body saw AustLII (and other databases) in action on 16 June.
The Chairman of ITAC, Lord Justice Saville (as he then was), and the President of the SCL, Lord Justice Brooke, have since given the prospect of achieving wide understanding of the importance and desirability of the Paradigm an enormous boost, by their actions and observations in a recent and unique case in the Court of Appeal in which they, together with Lord Justice Waller, were the Court. This decision will be considered in more detail in the concluding section.
In the meantime, and almost overnight, there is great enthusiasm in the Court Service for the use of the Internet as a medium of publication for, at least, 'landmark' cases. What might have seemed (and indeed did seem) a task of Herculean difficulty, in terms of overcoming barriers to credibility, is already under way. But, and it is a big 'but', there is still a great deal of thinking to do, and there are some big nettles to be grasped - the initial burst of enthusiasm needs, oddly enough, to be tempered with caution: if this is going to work it needs to be done properly and comprehensively. Most of all, it needs to be done in such a way that preserves the fundamental premise, namely that the provision be comprehensive, intelligible and free at the point of use.
3. Why does the achievement of the Paradigm matter?
There are a number of separate and related factors which combine to make the achievement of the AustLII Paradigm not only desirable but necessary, and many of these are essentially practical. The first is that books, and other physical media, are never either complete or up to date. CD-ROMs were hailed as a great advance, but you can only search what is there; in effect the CD-ROMs which are now available represent only an advanced mechanism for searching whichever set of law reports they happen to contain.
Next, there is a plethora of 'law reports'. This is discussed in detail below, but even if there were a physical medium for combining all these sources into one single database, it would still require physical publication, and updating, and new technology for handling it. Already some commercial providers of CD-ROMs are offering 'updating' on the Internet, but the fragmentation remains and indeed is thereby increased. It is simply absurd to use computers to research partial data, and leaving computers aside it is often 'pot luck' whether relevant case law is found.
This fragmentation is currently one of the biggest single problems facing lawyers. In an ideal world, all case and statute law would be in one place, whatever the medium. It is no longer possible to feel safe that one has found all the relevant case law after searching 'mainstream' law reports whether on paper or on disk. This is a problem which has nothing to do with new technology, and the advent of CD-ROMs has done nothing to solve it. Indeed, it is a problem with a fine pedigree going back a century and a half; in the last 20 years or so it has re-emerged with a vengeance.
Moreover, case and statute law are necessarily intertwined (as are domestic, European and 'commonwealth' case law); cases on their own are not enough. Given the other requirements set out here, the Internet is the only medium which makes possible any form of comprehensive database.
The law changes constantly. There is a real 'black hole' between the making of important case law and its paper dissemination, assuming that one is lucky enough to find the case once it has been reported. The reasons for this are legion. New Law plc currently fills this gap, in part, but only for its paying subscribers, and its activities are really a reflection of the fact that current arrangements for the proper dissemination of the law are defective.
Adding cases and statutes to an Internet database is a near instantaneous process - everything else requires 'publication' in the sense of disseminating something physical, and that takes time and costs much more and is only updating something which is ex hypothesi incomplete.
Inevitably, there is the question of money. Law reports (and statutes) cost a fortune. The more separate reports one needs the more one spends. One could very easily spend [sterling]20,000 on CD-ROMs and still not have anything like 'the law' (even if there were any comprehensive 'front end' for searching the material, which there is not). The publishers say the prices are fair, and that this is demonstrated by the fact that the market pays the prices they ask. That is all very well: the 'market' has no choice, and furthermore the result is that all over the country there are thousands of mini-law libraries, each being incomplete, out of date, cumbersome and expensive.
So far I have not mentioned the ordinary citizen. If the law is almost impossibly unwieldy for the lawyers, what of those for whom 'ignorance of the law is no excuse'? The answer is a short one: there is no practical access to the law at all for the citizen. You need a lawyer, for which you need to be either relatively rich, or to have Legal Aid (for which you need to be relatively poor). There are millions who fall between these stools, and yet the Legal Aid budget is running at over a billion pounds a year. That takes no account of the costs of arming Judges and Courts with (some of) the law; still less does it include the costs of the Judges and Courts themselves, all of which are grappling daily with the time-consuming business of trying to determine the law. Not even CABx and Law Centres (the citizen's classic 'first port of call') have proper access to the law, and the idea of its currently being ascertainable from public libraries is laughable. Assuming that the relevant public library is open, and has a law section, it is likely that the amount of law available is virtually nil. It will necessarily be incomplete and out of date....
The overall point can be summarised thus: the law is a massive body of data which changes daily. The only way to deal with it is to put it all in one place (actually or virtually), link it all together, make it searchable and keep it up to date, and the only way of doing that is to use HTML (or its sister SGML) and the Internet. It is almost too obvious. Moreover, one of the wonderful things about the Internet is that material only needs to be put into one place: everyone then comes to that place and 'collects' it. It is, in addition to its other characteristics, the cheapest medium for publication ever devised: the 'delivery cost' to the 'publisher' is quite literally nil.
The question remains, then, whether such a facility is to be provided commercially or otherwise, by which is meant that it is free at the point of use. It is submitted that it is unthinkable that we should countenance, or risk, the commercial provision of such a comprehensive database - the provider would have an effective monopoly, but it goes much deeper than that. One of the functions of the legal system in any free society must be to make the law available to the citizen in an intelligible form. This applies not only to legislation but also to case law - the decisions of the Judges are as much the law of the land as are Acts of Parliament.
This is a bold statement, but one made with confidence: the Paradigm will pay for itself many times over, from practically every budget one looks at. Its cost will be but a drop in the ocean compared with the money, both public and private, currently spent on 'the law', and the quality of legal provision will at the same time be far higher whilst the time taken to resolve cases will be reduced. Of course, for the Government to see it in these terms, there will need to be a strategic overview of 'the legal system': currently there is no central control, planning or budgeting. What there is is lots of departments and agencies and bodies which together expend the 2 or 3 billion a year or whatever 'the legal system' costs.
The Paradigm database must be public property, and free.
Lastly, on the polemical front, there are enormous 'spin-off' advantages in the Paradigm, some related to the cross-referability between different legal systems and other public databases. Members of the Commonwealth, used in its broadest sense, could undergo a sea-change in their relationships with one another as a direct result of the Paradigm, for reasons which may already be clear but which will be discussed in more detail below.
4. The Practicalities
We must now turn to the hard facts. First, it needs to be recognised that what has been achieved in Australia is immeasurably affected by three particular factors:
The extraordinary dedication and enthusiasm of three individuals; it is doubted that their like is to be found here;
The fact that virtually all Australian judgments are made available in text and electronic form by the court itself (i.e. the judge or clerk);
The relatively small size of individual Australian courts and individual state legislatures, and their far more widespread use of word-processing, which
facilitate the provision of materials in a form suitable for integration into a database.
By contrast the English scene is much bigger, much more highly complex and less technologically-advanced, and in order to have some idea of what is involved in achieving the Austria Paradigm it is necessary to examine both the nature of the existing data which are available, or potentially available, in respect of existing English Law and also the mechanisms whereby the quintessentially oral function of judges gives rise to the availability, where it does, of text fit for distribution in whatever form. This article will deal with case law first, in order of the 'seniority' of its sources.
5 English case law - how it is derived
5.1 The House of Lords
Curiously enough, and with no disrespect whatsoever, that part of the English legal scene which is most closely analogous with any part of that in Australia is the Judicial Committee of the House of Lords. It has a relatively low 'turnover'(under 100 case in a year). Its decisions [3] are never given ex tempore but are always prepared in advance in print - which nowadays means in a word-processed form. Virtually all of its judgments matter; cases only go to the House of Lords if it has already been determined that they involve points of law of public importance.
The judgments of the House of Lords are therefore available in digital form, and textually fit for immediate publication. Moreover, there is not much time required to be spent deciding whether the judgments are worth reporting ; by and large they are. The significance of these 3 features, or basic requirements, will become more apparent.
The primary mechanism for the reporting of the House of Lords has been, since 1865, the Appeal Cases volumes of the Law Reports. Those volumes contain only the cases in the House of Lords and the opinions of the Privy Council (the decisions whereof directly concern only appeals from such of the Commonwealth jurisdictions as still have the Privy Council as the court of 'final appeal'). The Law Reports (and the capitals are deliberate) are published by a charity called the Incorporated Council of Law Reporting (ICLR) and are explained further when one gets to much thornier territory of the Court of Appeal and first instance courts; they exist for particular historical reasons and enjoy a special status. Other law reports, some specialist and some parallel (i.e. not specialist but rather purporting to be an alternative to the Law Reports) but all commercial i.e. produced by private publishers for profit, also contain some of the House of Lords cases. In each case the text of the law report itself is the verbatim reproduction of that which is promulgated in writing by the Law Lords. This may seem obvious - it is in fact unique to the House of Lords.
As with all printed material, there is a time-lag between the text being available and its physical publication. This is not unique to the House of Lords (indeed, the contrary is true), but both the Law Reports, and the All England Reports (the principal 'parallel' series), developed a mechanism for the reduction of further delay engendered by the need to wait for 'a bookful'. In the case of the Law Reports, all cases which are to form part of the eventual formal series (Chancery, Queens' Bench, Family, Appeal Cases) are first published in a different format. These are the Weekly Law Reports, and they are published every week of legal term. They are divided into volumes 1 to 3. The material in volumes 2 and 3 is subsequently re-published, (periodically, in limp-back form) with different citations, in its respective 'category'. A House of Lords case may start off by being, e.g. [1996] 2 WLR 123 but will, within months, become, say, [1996] AC 456. To complete the picture, the material in volume 1 of the 'Weeklies' stays there - there is a separate and permanent set of law reports (not strictly part of the Law Reports) being [1996] 1 WLR, [1987] 1 WLR and so on.
So far as the All Englands are concerned, they too are published weekly but by contrast the volume designators have no significance save that they reflect the quantity of cases reported. What starts off as [1996] 4 All ER 789 stays that way for all time; in due course one simply has bound up the All Englands into their respective hard-bound volumes. Other proprietary law reports are also published in loose or limp form more often than annually, but again the volume designators have no particular significance.
All printed law reports use some form of device to identify where on any given page text is to be found; the most common is letters in the side margin.
What all these reports also have in common, to greater or lesser degree, is three other things: indexes of cases reported and cited, headnotes (that is to say, digests in standard form of the material issues) and summaries of the facts and the key matters of law resolved, with or without specific page references to the 'meat' of the ratio decidendi. The Law Reports contain, in addition, summaries of the arguments of Counsel. Most of these series of reports are available to be bought both in book and CD-ROM form.
Until 14 November 1996, that was the only way of obtaining a copy of the decisions of the House of Lords (apart from applying in writing to the relevant office for a printed copy, at a fee). On that day something almost completely unheralded occurred - the House of Lords started publishing its cases, free, on the Internet. This was a massively laudable step, and very far-sighted - even in the autumn of last year there was virtually no widespread expectation that cases should be published in this way. They are put up with just the text of the speeches in full - there is of course no commentary or headnote or summary. More significantly, there is no sequence number allocated to the case, and there is no paragraph numbering. The former is relevant to the question of how to 'cite' the case i.e. how to identify which case one is talking about, and the latter is relevant to 'navigation' within the case. Not only is there be no 'side lettering', since there is no printed page, but also the way in which the HTML format will print out is to a degree dependent on the individual reader's computer set-up - hence there is no fixed page numbering or layout. Your 'page 6 half-way down' might well be my 'top of page 8'. Now, the need for 'vendor/medium neutral' citation mechanisms, and for paragraph numbering, is already universally recognised where publication of cases occurs first (and, a fortiori, only) on the Internet, but still one does not look a gift horse in the mouth, and this is something that can be sorted out very quickly. It is, however, a useful reminder that the free provision of the House of Lords cases does not appear at the moment to be much more than the gratis publication of text as some form of 'local initiative'; there is no indication that it was or is planned as the start of something comprehensive. Whilst it may be that no case in the House of Lords since 14th November 1996 has referred to any material already publicly available on the Internet, there is as yet no sign of the next step being taken namely hyperlinking to materials external to the case itself.
In summary, the House of Lords is a relatively simple area: digitised text (HTML even), immediately fit for publication (indeed, published within 2 hours of
'delivery') and worth reporting. It is the only case law available (by which is meant publicly available without fee) in the United Kingdom. There is (subject to less than half a dozen, and very recently-published cases) no other.
5.2 Court of Appeal and Crown Office
It is here that the plot thickens massively.
The clear majority of decisions of the Court of Appeal, be it in the civil or criminal divisions, are decisions given ex tempore. Whilst these may have associated with them notes, either in manuscript or in type, handed to law reporters for the facilitation of their task (namely to produce in the first instance a summary of what the case decides, and then a version of what was said) the judgment itself is given by word of mouth. This applies not only to genuinely 'off the cuff' judgments, but also to some cases where the judgment has been reserved but is still given, on the resumed occasion, orally. However, a significant proportion of cases of note in the civil division are 'handed down', that is to say that there is a pre-prepared text (done on word processor therefore ex-hypothesi available on disk) already produced by the Court. This text is frequently handed to the parties for their advance notice and subject to an 'embargo'; it is available to all at the moment of judgment being actually given (often but not always read out in open court).
In respect of both divisions of the Court of Appeal (and indeed of the Crown Office List, that is to say the work of the Divisional Court, primarily engaged in matters of judicial review) more or less every word spoken by the Judges (and argument immediately consequent upon a judgment) is transcribed using CAT techniques by a specialist firm contracted to the Court Service. Accordingly (and eventually) the first effective requirement for reporting is in place - there is digitised text. However, whilst this is a system for the 'automatic' reduction of words into text, it is by no means a rapid mechanism for the digitisation of the spoken word.
The first reason for that is that the terms of the contract require, in essence, the transcribers to make available for the court each and every judgment, be it newsworthy or not. In due course, that transcription leads to something called an 'Official Transcript'. The second, which arises out of that, is that the turn-round time required of the transcribers is one week in the case of a 'handed down', and three weeks in the case of an oral judgment. At the end of that period there is supposed to be a draft transcript ready for the members of the Court to correct. There is, not surprisingly, no time limit imposed on the Lords Justices for returning those drafts although they do so quickly. Thereafter a final version of the Official Transcript is prepared and fit for release.
In principle the transcription done by the contractors is the only source of any digital form of the spoken word in these parts of the Supreme Court. I say 'in principle' because there is one commercial organisation which, for its own commercial purposes, employs a team of collectors and reporters who, unlike other law reporting organisations, are tasked with the job of producing by the evening of the same day a digest of cases which have been marked for specific attention and, overnight and for sale to subscribers who may order it, an 'unofficial' transcript . Those digests are published electronically and by fax the same day to subscribers to the service. Moreover, New Law (for it is they) have set up an 'on-line' service available on the Internet to subscribers thereto.
Neither Official Transcripts nor the New Law service are free. Official transcripts have to be ordered in advance, must by contract be provided within a week of a request (assuming that the transcript is available - it can take many weeks for an oral judgment to be transcribed in an approved form). There is a price for the provision of such an Official Transcript, and accordingly the real cost of such transcription is borne in part by the Court Service and in part by those who want or need access to the text of a case. The transcribers sell 'their' product. New Law requires an annual subscription for the digest service and transcripts, of the judgment according to the reporter from New Law, cost about [sterling]20.
It has been perceived as anomalous that New Law can, and do, avail themselves of the 'handed down' text of judgments to produce their 'unofficial' transcript for immediate sale, whereas the official transcribers cannot sell anything save 'Official Transcripts', and the text of the handed down judgment is NOT an Official Transcript - first the text is re-printed by the transcribers, and then it goes back to the Court for the making of any revisions (including but not limited to matters which may have arisen during the course of argument immediately after the handed down judgment is given), and it is only after the Court has 'signed off' the transcript, 'second time around', as it were, that the contractors can then sell the Official Transcript. Indeed, were it not for New Law, until very recently no one would have any form of complete transcript of any case in the CA/Crown Office until the whole cumbrous process of Official Transcription had been gone through.
Plainly this is not an ideal state of affairs. The author has been involved, through the ITAC working party, in sorting out some of this, and some progress has been made but it will be seen that plenty will have to change before things are as they should be. However, as foreshadowed, there has been a radical shift of public stance recently by the Court of Appeal which augurs well for the kind of sweeping changes required. Moreover, certain individuals in the Court Service, notably Ian Hyams, the Head of the Information Systems Division, are both well-informed and well-motivated.
Apart from the Official Transcription, and New Law, there are other commercially-oriented law reporters present who produce digests of cases. The most familiar of these is The Times law reports (which are available free on the Internet subject to registration via the electronic versions of The Times newspaper).
So what we have is, after a delay (many weeks in the case of an oral judgment), digitised text. After a further delay we have the second requirement - material which is textually fit for publication. Or do we? The answer, in part, is 'No' (or at least that second-stage, Official Transcript, text is not the final version), and here there is yet another anomaly, arising out of what has been described as the 'special status' of the Law Reports. In short, the ICLR's reporters re-write judgments. They are very proud of this part of their function. The text is honed and buffed, 'infelicitous language' is rendered more mellifluous. A few years ago an unfortunate official at the Lord Chancellor's Department took the ICLR to task, pointing out that the judgment was already to be found in the Official Transcript and there was danger in such ex post facto revision (which is not even, strictly, a matter for those who spoke or wrote the words in the first place). The ICLR replied, in effect, that he was wrong, 'out of order' and that once the ICLR had done its polishing and published the case in the Law Reports, their version was the only version and thenceforth there was no other - the Official Transcript was superseded. This view was subsequently upheld by the Master of the Rolls and the Lord Chief Justice; the official duly apologised.
The above account emphasises the fact that the situation is complex, and that there are some long-standing approaches that will require to be reconsidered. It is easy enough, on the Internet, to replace the first version with a better one, when there are small changes between a 'handed down' and the subsequent 'Official Transcript', and other jurisdictions cope well with this (see for instance the Oklahoma Supreme Court Network where some material is specifically marked that it may subsequently be revised - incidentally it is also a good example of the official promulgation of 'medium-neutral' citation mechanisms coupled with parallel use of traditional references); what would be intolerable would be any insistence that nothing be published unless and until it is 'perfect'. In light of recent developments one would hope that that sort of attitude, laudable though it may be on a very long term view, will be no bar to progress. Indeed, from the judicial side of things, it is now plain that this is not going to be a hurdle. Since the above words were first drafted, the Internet has been used to 'republish' a case, and not only to correct literal errors but actually to clarify and amend certain dicta in the original decision. This is radical indeed, and not only from a technological point of view - indeed a group of law reporters told the author with undoubted sincerity that this was the the thin end of the wedge, the wedge being the end of the normal development of the common law. This new departure is canvassed below.
Sadly, however, the textual side is not the real conundrum in terms of future provision. That privilege is reserved for the third requirement namely that a case be worthy of being reported. In short, it is the law reporting organisations that act as the filters i.e. who chose from amongst the mass of cases what sees the light of day. The ICLR makes its decision on the basis of abstract, legal and quality considerations. The other, private, publishers doubtless also have an eye to their own specific market. They all report cases so that they are purchased. However, and whatever the motives or criteria, the fact is that which of the cases in the CA/Crown Office are reported, from amongst the hundreds taking place each week, is determined by the decisions of those who make money from selling law reports. If it were right that the Paradigm were to remove their involvement from the selection process or if it turned out that the existing selection process is too slow in any event, then it will be the case that some new mechanism for filtering will need to be in place. This is, it is submitted, one of the biggest questions which has yet to be answered - who (and how)? The alternative, namely of 'reporting' everything on the Internet, would arguably (and rapidly) clog the database with dross (no disrespect - in this context it means a case which, for instance, merely applies clear law, or decides nothing beyond its own facts, or reflects the exercise of pure discretion). Plus, and this article has so far avoided mentioning crime, there are literally thousands of cases in the criminal division of the Court of Appeal that are faithfully transcribed but which add little to the sum of the law.
Before leaving the practical side of arrangements at this level, it should be remembered that there exists, now, a huge volume of Official Transcripts of 'unreported' cases, in both digital and printed form going back many years. These (at least the printed versions) are held in the Supreme Court Library. They can be read there, if you can find what you want, but they cannot be marked or copied. They are not available there in digital form, still less can one search any database there. A person wanting a copy of a transcript is supposed to take the reference number and then order, at the prescribed fee, from the current transcribers, a copy of the Official Transcript. An alternative way of achieving this is to visit the Internet site of Sweet & Maxwell who have been armed with, or have created, an electronic index of Official Transcripts. Once you have found one you want, you then order it from the transcribers.
It should be added that Legalease, who own and run the LINK bulletin board, used to buy in Official Transcripts, and one could search their database back for about 2 years, and then order from them a copy (for about the same as the prescribed fee). They discontinued that service, not least because of the expense coupled with the time-lag involved in getting Official Transcripts - in the meantime people who really wanted an instantaneous service signed up with New Law....This, again, serves to remind one that the present arrangements, leaving aside the 'filtering' conundrum, are just plain too slow and expensive. The Court Service, as an absolute minimum, is going to have to fund transcription on a basis which is not premised upon the sale of that product.
5.3 First instance High Court cases
Here there is another layer of complexity and it is, in a sense, the converse of that in the Court of Appeal. Whereas there the task is to filter out kilometres of superfluous text, at first instance and in principle there is no digitised text at all unless and until someone (usually a law reporting organisation) causes it to be produced. I say 'in principle' because there are 2 principal exceptions: New Law also 'transcribe' selected first instance decisions (but not many), and also there are some individual puisne. Judges (and for these purposes I include Official Referees and Deputies) who, on a personal basis and because that is how they choose to work, do in fact produce their judgments on their own computers and 'hand down' decisions both in print and, on request and a limited basis, on disk.
Leaving aside the exceptions, how does this work? The answer is that all judgments are tape-recorded by the central Mechanical Recording Unit. If a party, or a law reporter, wants a transcript they go to the MRU, get the details of the case etc., and then hire one of a number of approved transcription services who will be provided with a copy of the relevant tape-recording.
Accordingly, it will be recognised that the role of the law reporters, of whatever character, is even more seminal - not only do they select what is to be
reported: at first instance they also select which cases have the judgment digitised. Until that process takes place, one does not even have the first of the requirements - just an indeterminate length of metal oxide tape.
5.4 Back to fragmentation
It has been stated that the problems of fragmentation have a fine pedigree; this may be a moment to explain what was meant. In 1863 the common law was in a state of chaos. Law reporting was a matter of private enterprise, the sources of the common law had become unworkably diffuse and the quality of reports was highly variable. That was why the ICLR was founded. Its remit, then as now, was to obviate the then fragmentation of law reporting and to cause the dissemination of case law at a reasonable cost to the user. It succeeded, but in the past 20 years or so the advent of dozens of new, 'specialist', law reports has once again given rise to exactly the kind of problem faced all those years ago (although quality is not the difficulty - it is the plethora of sources). Personally the author does not regard the ICLR as entirely free from blame - there is a widespread perception that, as the 'specialist' reports have grown in number, the ICLR has increasingly selected for its own reports what it considers to be 'non-specialist' law. On a crude level, and this is not entirely fair, the Law Reports are said to be the repository of that which is not reported elsewhere. That renders the Law Reports incomplete, increases the doubtless reluctant demand for 'specialist' law reports amongst lawyers with wide practices, and in the end forces many to try and have all the law (which the Law Reports were supposed to contain) by subscribing to huge numbers of different 'specialist' reports. Had the Law Reports gone on containing, in principle, everything that mattered then the advent of the new reports would have had much less impact. However, and whatever the reason, it is clear that never, at least since its inception, have both aspects of the formal function of the ICLR been more required than now.
6. Statutes and Statutory Instruments - how they are published
Statutes are produced by the government (or, now, HMSO/The Stationery Office), as are Statutory Instruments. Until recently, they were available only in printed form, in huge numbers and at considerable cost. If you wanted legislation, you had to buy it in whatever form - bound volumes, or ad hoc purchases from HMSO. This was (and in respect of Statutes enacted prior to 1996, remains) a quintessential failure to provide the citizen with the law of which he or she is deemed to be cognisant
Since 1996, Statutes have been published free on the Internet, and SIs have been made so available since the beginning of 1997. The Statutes, however, are published only in the form in which they stood at the moment of Royal Assent, and all lawyers know that that is far from being any reliable indicator as to the effective status of legislation, particularly given the propensity of the last government to enact first, and then bring into force, if at all, that legislation piecemeal by long series of Commencement Orders. Moreover, Statutes are frequently amended - thus far there is no sign of any legislation on the Internet being brought up to date. There is no use of any form of hyperlinking to, for instance, commencement orders, which would have a significant and direct effect on the intelligibility of that which is being read. Others have observed that, accordingly, the current provision of free statutes represents not the law but something which might now, or at some stage in the future, or never, represent the law of the land - it is impossible to tell which.
It should added that, by contrast, many jurisdictions in Australia effect every few months a consolidation of their state statutes - that material is also shared with AustLII.
Statutory Instruments are not subject to amendment. They stand as they are. They may, subsequently, become irrelevant but they are at least hard data and remain worth having from the moment that they are made. The provision of these on the Internet, since lst January 1997, is a fairly massive enterprise, not least because of the volume of such things.
One useful thing that is provided is a free text search facility; it is essential, not least because SIs are listed in the first instance by number alone.
These materials can be found thus:
The provision of each of these was, again, unexpected and is laudable, but it is very far from anything comprehensive. The 'free' part is excellent; otherwise this is yet another place to look for the law. One has, in the end, the same limitation: they are incomplete, and they stand alone.
Is that it? Not quite, and what is missing is the Statute Law Database (SLD). It is certainly 'missing' in the fundamental sense - it is not in the public domain.
As at 1st January 1991, it represents absolutely every single statute which had any relevance and currency as at that date. Since its inception (and it is held on a private intranet for the use of the Lord Chancellor's Department) work has been going on to bring forward the date at which it is possible to effect a 'time snap shot'. That is to say, it is now possible for periods after 1st January 1991 to search the database and interrogate it as to the state of statute and quasi-statutory law as at any given moment, subject by subject. It has always been a highly ambitious project; it is said to be about a year or so away from being completed.
It was said to be the aim of the last government to make the SLD available to commercial publishers for a very considerable sum of money - licence(s) for the highest bidder(s). Virtually nobody outside the civil service and the judiciary has ever had the opportunity of looking at it, still less using it. It is a very powerful tool indeed (although curiously enough it is short on rich internal hyperlinking. That could be cured very quickly once it came ino the public domain).
There has recently been a major development, at least in political terms, in relation to the availability of the SLD. It will be seen from the SCL's submission to the government (see above) that it proposed, bluntly, that the SLD be placed into the public domain and onto the Internet. The language in which the SLD is written, SGML, is virtually tailor-made for such publication.
Until very recently not only was the existence of the SLD not widely known but also the concept of its going into the public domain was either alien or had not previously been considered outside of the SCL. However, at the meeting of the ITAC civil litigation working party mentioned above, following a paper by Roger Horne, a fellow barrister and proponent of the Paradigm, and a co-member of the Bar Services and IT Committee, it was resolved nem con to pursue a policy that the SLD should be placed into the public domain. That may carry little weight (it certainly has no mandatory force), but since this is a major resource under government control, one sincerely hopes that the release of the SLD into the public domain once it is finished (coupled with a commitment to keeping it right up to date) will be another example of the new government's intention to 'hit the ground running'.
Those, then, are the present sources of 'domestic' English law. We must not forget, also, the European dimension. Work is already underway at the European Court of Justice on 'recent case law', and Internet provision of full text judgments by that Court and the European Court of Human Rights has just started; if the Commission is putting its material on the WWW the author has yet to find it. Suffice it to say that these are matters beyond the direct control of HMG but where the existence of the Paradigm database will undoubtedly hasten progress by example (although in Civil Code jurisdictions the full force of the new approach may not be quite so readily understood).
7. Where do we go from here?
7.1 Past material
It will be apparent that there are different 'layers' of availability. There may be a repository in the House of Lords of its decisions in word-processed form going back some years. There is a body of such material, unpruned, in respect of past transcription in the Court of Appeal/Crown Office. There will be some digitised versions of such first instance transcripts as have been 'called off', but these do not appear to be held centrally. There is bound to be, in respect of all 3 levels, further 'raw' material in print but which is not yet, or is no longer, in digital form. That is one layer, but if the Paradigm is to be more than just a stop-gap between 'judgment' and printed publication, it will have little utility and will not have achieved its primary objects unless it contains a comprehensive body of historic case law.
Accordingly one needs to consider the hurdles to the obtaining of material going further back than any date which reflects the happenstance of the existence of paper or digital material internal to the Court system. Plainly that involves looking at the acquisition of what is in the Law Reports and, indeed, the other law reports.
If everyone, by which I mean the judges, the Crown and the publishers, were to agree to make the data available, there would be no effective hurdle, and there would need to be no debate as to the niceties of copyright. It would appear that the first category of actor will not be a barrier to progress, but since the second has yet to declare its stance, and the third may be, it is worth spending a few moments considering the legal position. It is, predictably enough, unclear.
Crown copyright is firmly asserted in the provision of Statutes and SIs, and their publication on the Internet is no abrogation of that claim; on the contrary - use of such material is specifically licensed by way of exception to such claims. One thing which is clear, at least, is that there is no other claim maintainable, and hence a waiver or a blanket use licence from the Crown will release those materials into the public domain.
More complex is the area of case law. We may start again with the House of Lords. Here, the claim to copyright (at least in respect of that which is on the Internet) is of Parliamentary copyright. Leaving aside the validity of that claim, again one would anticipate that there is likely to be no political objection from that quarter in respect of the Paradigm, not least because the House of Lords has already taken an admirable lead. However, the story does not end there, because for the most part (unless there is a complete archive of all House of Lords cases since 1865, in print and held by 'them') the actual source of the material may need to be the Law Reports or other sources published by people outside of the House of Lords. There is no point avoiding this issue here, on the ground that there may indeed be a central archive to which here can be no conceivable claim other than one waivable by the government, since it needs to be gripped in respect of lower Courts.
The question which will need to be posed, and resolved, is the extent to which the publishers have copyright in judgments? If there have been no textual adaptations, which I believe to be the case in respect of the House of Lords, do the 'paper' publishers have any copyright at all? Can their materials simply be scanned? This, of course, excludes the headnotes and summaries etc. - their own original work - since it seems that the claim to copyright there is a good one (although, again, the absence of such 'added value' in the Paradigm database is something which requires consideration - it raises questions in respect of the nature of the free provision).
Mention of scanning raises the further issue that in most cases, the relevant materials have already been digitised. The eLR CD-ROMs already represent the Law Reports back to 1865. It must be the case (although this article does not essay a detailed treatise on intellectual property law) that, separately from any question of copyright, it would be neither legally nor morally right to assert, against a background of the electronic publishers having invested hundreds of thousands of pounds in getting that material into digital form, that the electronic publishers' work is in fact freely available already. Such an assertion would certainly run a coach and horses through the current licence restrictions accompanying 'purchase' of the CD-ROMs; it would certainly be a breach of contract, if nothing else, to acquire the disks under such a licence and then reproduce the contents wholesale and gratis for the world. This assumes that the publishers will not willingly release their materials; one should not discount the possibility that they will, in the end, consent. Apocryphal 'research' has, apparently, suggested that gratis publication on the Internet of usually 'paying' material in some cases actually increases the market for the printed, 'paying' version; the author, however, doubts its application to such a radical change as that which is proposed. After all, the whole point of this from a practical point of view is not only to facilitate legal research but also to cut costs - part of that is likely to involve reducing the market for the printed/CD-ROM versions, particularly the latter.
More significantly, perhaps, the Paradigm ought to have an attraction to publishers generally - they, too will have access to all of the law, all of the time, free and moreover it cannot be denied that the moral premise of the Paradigm is unassailable (although, having said that, it has been attacked on the grounds that this is all just a 'wheeze' to increase lawyers' profits; that attack is ill-founded and if the Paradigm becomes a reality it will significantly reduce the 'pot' of fees available to lawyers). These last 2 considerations may represent less of a spur in respect of the ICLR - not because there is any assumption on the author's part as to the wishes of the individuals who run it, the Council (on which he serves as one of the 2 members representing the Bar), but partly because it is not in the general business of legal publishing and partly because it is a charity with specific objects and obligations. The author's own view is a simple one - the Paradigm would represent the ultimate achievement of that for which the ICLR was formed - but it is recognised that this view may not be shared by all, and for reasons which are already clear, the future of the ICLR would be significantly affected by the Paradigm's existence. Its funding is, now, solely the sale 'at reasonable cost' of the Law Reports (and the Weeklies and one or two other relatively minor series of reports). If it were to lose that, and/or be tasked to carry out a 'filtering' function funded from some other source then, leaving aside the actual shifts of function and attitude required to accommodate the ramifications of the Paradigm, its objects would require careful review and probable revision. However, it is equally clear that the role of law reporters will not die away. The precise manner of the discharge of their function will change, but there will always, even with the Paradigm, be the need for analysis, digestion, summarising, classification etc. The Paradigm is not everything that is required: it is necessary but not sufficient.
Beyond issues of the role of the ICLR, the fact is that there are likely to be claims by at least some publishers which are in one way or another antithetical to release of historic materials into the public domain, and they will need to be fielded on a number of fronts - are the claims well made, can they persuaded away, or bought off, or defeated by legislation (subject, as appropriate, to suitable recompense) if necessary?
Mention was made above of the validity of claims to Crown copyright because, once again, the plot thickens at the CA/Crown Office level. The transcription contract expressly asserts that the copyright in the work vests in the Crown. Of itself, that is only a matter of contract between the parties, but it is the case that the Treasury Solicitors have, apparently, advised that the Crown does have copyright in the judges' 'output'. If the Crown were to waive, absolutely or at least sufficiently, any such claim then it matters not at all in practical terms. There are those who are much exercised by the intellectual and legal basis of this claim. There is a strong body of opinion to the effect that it is the judges themselves who have any rights, and so far as one can determine there is no judge in the land who would wish to assert such copyright save for the purposes of 'liberating' judgments from any other claim adverse to free dissemination. Indeed, judicial proponents of 'judges' copyright' ally with that analysis the existence of an irrevocable licence to use and reproduce in any form whatever, which such licence is deemed to be granted by the judge the moment judgmen is given.
These interesting questions exercise others as a matter of legal purism. It is the author's hope, simply, that it does not matter.
The transcribers, by contract as set out above, have no copyright. So far as any legitimate commercial expectations, and contractual rights, are concerned, it is another laudable fact that the managing director of Smith Bernal, the current transcribers, gave a public commitment at the SCL Conference in March to the effect that he would happily release all of 'his' material, gratis, for the purposes of advancing the Paradigm. He was roundly applauded, and deservedly so.
That leaves for brief separate discussion the position engendered by the 'honing and buffing' of the ICLR. Does that attract a separate copyright? If so, will it be waived, or will there need to be followed one of the other routes to release set out above?
Coming down to 'first instance' level, the only sensible source of historic data is existing law reports.
Leaving copyright aside, the fact is that mainstream (and specialist) law reports are, for the most part, already digitised and, to some extent at least, hyperlinked whether in HTML, SGML or some analogous language. Even if there is in fact no recognisable HTML style hyperlinking it is not a complex task to take pre-digitised law reports and mark them up. AustLII already has a very sophisticated and effective mark up tool which more or less automates the process of HTML coding and linking of digitised text.
Accordingly there are 3 factors involved in the acquisition of the necessary materials: politics, law and money. It would be all to easy to assert (it has already been suggested) that an application could be made for, for instance, National Lottery money, but that may be putting the cart before the horse. There may be no requirement to pay, or other sources of money and perhaps more fundamentally the sooner one starts with a fund of [sterling]N,000,000 the more one is likely to have publishers bidding for what they perceive to be their 'fair' share of the pot, which in my view is not the right place to start. If needs be, the author has no objection whatever to that as a source of funds, but would argue that the government is a much more obvious source, not least because the Paradigm will save it a fortune but also because of the fundamental premise: the provision of the law in a free society is a matter for the State.
How did AustLII solve this? The answer is that they haven't, yet. It would not appear that anything in their databases has been acquired in this way. Historic materials (and they go back for a maximum of 50 years or so) have been derived from externally (and charitably) funded work on the digitisation of older, Court-held, printed materials. Indeed, AustLII did run into the problem of trying to disentangle headnotes etc from the 'raw' element in published case law, and that has yet to be resolved so as to result in the release of those materials.
It will be apparent, that the SLD is likely to be 99% of the answer to statutory provision in respect of the past; the other 1% will have to be the completion of that work, funded then as now out of some public 'law budget'. If the legislators needed it before, they will need it in the future - all that is sought is that it be shared.
Before leaving 'past' material (although it applies with as much force in respect of the future), what of headnotes and summaries? Cases and legislation can be wholly unintelligible without commentary and analysis, ranging from headnoting and summaries to full-blown text-book treatments, but it has to be recognised that there is a limit to the amount which the public Paradigm database can be expected to contain at public expense. This point has already been made by Carol Ellis QC, the Consultant Editor of the ICLR, in a letter to the Editor of the SCL magazine - what is the point of just making 'raw law' available, and if the provision is to be both free and intelligible, who is to pay for the work which is now done both by the ICLR and commercial publishers (in respect of 'digestion', noting whether case Y overrules case Z, identifying the ratio decidendi ), and how?
These are fair questions which are conscientiously posed and which require to be addressed, although in my view they stem from a premise which is partly misconceived namely that the publication of the law, in whatever form, on the Internet free will remove, at a stroke, the market for printed and other sources of raw and digested law. There will always be a market for the 'added value' aspects of the law reporters' work - most notably in producing accurate summary analyses of what cases are about and what effect they have on the law. There is, as has already been accepted, a limit to the provision of analysis which can be expected to be provided gratis, and there will still be a market for the printed form of the law. Moreover, there is no reason at all why there should not be, linked to the free database, commentary and analysis which is NOT free. The question of where the line is to be drawn between free and paying provision of such analysis is one to which the answer will emerge. It will work itself out.
On any view, it cannot be said that the absence of such materials means that one should 'give up' on producing a public database. It won't be a perfect legal tool, and nor will lawyers find that they need nothing else. AustLII materials have no headnotes etc (yet), but there is a very sophisticated search engine, and there are hyperlinks to some 'external' commentary. The searching methods will improve yet further in the very near future (it is no accident that this is the 'other half' of AustLII's work), and a body of commentary, provided on a pro bono (and PR) basis is bound to develop very quickly. One should not rule out, either, public payment for permission to use 'private' analysis.
The fundamental point is that the provision of raw law, in its (relevant) entirety, is the only mechanism whereby the law can properly and rapidly be disseminated and researched. It is then, also, equally available to Courts, large law firms, CABx and citizens alike. Plainly, it will be more useful to lawyers than to the average citizen, but the law would be available, for the first time, equally to all practitioners. It would cut the cost of the practice, and the administration, of the law. It would reduce the time spent in finding out the law, both by lawyers and by the courts themselves. A huge amount of public money is spent on lawyers' and court time. There would be a direct saving to the public purse far outstripping the costs of achieving proper provision.
In short, even if it were 'only' of benefit to the lawyers, that would reduce the cost of access to the law. In addition to the time savings, there would be massive economies of scale. There would be one single law library, open 24 hours a day, free for all lawyer, advisers, government departments etc. and not, as now, thousands of limited sub-libraries, all defective in their lack of completeness, all more or less out of date, and all staggeringly expensive.
The benefit, of course, is not only for lawyers. The citizen does have a right for the law to be promulgated, free, by the state. If the law is still so complex that the citizen cannot avail himself of that provision, that is not the moment to stop the consideration, but rather to take stock and ask why and then remedy the defects. Moreover, the fact remains that the time has come when the law must all be in one place, and as intelligibly as it can be reasonably be made, so there are only 2 choices: private profit or public provision, and there can be no argument, moral or otherwise, favouring the former. Everything else is, frankly, detail, however important.
The question which remains open, though, is how (and by whom) to replace or emulate the speed, filtering and 'text obtaining' functions currently provided by the operation of historic arrangements and market forces, which may be displaced by the Paradigm, and so we turn to provision for the future.
7.2 Future Materials
Much of this has covered itself. Statutes and SIs will continue to be integrated into the SLD side of the database. The House of Lords' material will be integrated by the use of automatic mark-up tools.
What of the other Courts? At the moment, the CA/Crown Office arrangements 'work' because New Law fill the 'black hole' created by the nature of transcription and the subsequent requirement for physical publication of the text (and the absence of any other mechanism for advertising the existence of new cases), and law reporters filter the useful from the rest but take time to do so. At first instance, law reporters effectively create all 3 'reporting requirements' simultaneously - they cause the text to be digitised, cause it to be rendered fit to publish and have already selected that which is worth reporting. Which of these functions will both survive, and suffice, for the future?
This is the most difficult area of all. It is not easy to see how blanket transcription can be speeded up, and yet New Law's market (there is nothing personal in this) is bound to be diminished - one of the basic aims is to get the law out free and quickly, so they will come out of the equation (at least in part - a week may be acceptable for the public purpose, and there may yet be a market to fill that gap). The point is that unless there is a publicly-funded equivalent of New Law i.e. a separate body from the transcribers tasked to identify in advance that which is likely to matter and to make at least a sufficiently reliable 'first shot' transcript, some more radical change is required. It is no good waiting for 'automatic voice transcription' - it is too far away, and complaining that not enough Courts process their own words does not meet the point that many important judgments are, and will continue to be, given ex tempore hence orally. Then there is the fundamental question of selection.
The first answer is simply to get on with it, with what systems there are now. There will, initially, be delays. They can be cut down in a number of ways. One is for the Court itself to identify that the case matters and is to be given transcription priority. Another is to institute a proper system of 'secretarial' help for judges such that the number of purely oral judgments is reduced, again on the basis of Court-led prioritisation. The nature of the function of the transcribers itself could be changed such that it involved a dual role of digitisation and selection. The existing filtering arrangements may stay in place - that depends on the effect on everyone's market and how the publishers react thereto. If they do not, they may require to be funded by the public purse, or replaced by a new body. They may improve, in terms of speed, on their own; if not there will need to be changes induced. If there is an 'error' in selection in the first place, it may not matter. The beauty of the database approach is that if a case is 'missed', that can be cured more or less instantaneously and the judgment integrated into the database. Some cases cry out for immediate publication, some might come in a 'second wave'
However, the practical questions cannot be swept aside, and they matter. Perhaps the correct, and sane, approach is to recognise that this is all so new, and so radical, that there are as yet no ready answers, or at least they may not become clear until there has been more debate. These are, as yet, very early days. Moreover, this is a long-term project: start now with the systems which exist, and there will have been an enormous improvement on current provision. Refinement can come next, and it may turn out that some of the questions posed will answer themselves. Indeed, questions will arise which have not yet been foreseen.
What is clear is that the achievement of the AustLII Paradigm is not merely a question of throwing money at existing arrangements. That, one supposes, is not strictly true in this sense: if the government were to fund the, or an analogous, activity of law reporting and selection then it would continue - but on any view there would have to be a sea-change in current arrangements which are, for the most part, a mixture of the 'public' function of the ICLR and the application of market forces.
8. Good omens
This article has 'trailed' the fact that there has been a recent development. A few months ago it would have been considered unthinkable, and yet over the weekend of 26 April of this year there appeared on the Internet for the very first time a judgment of the Court of Appeal and, moreover, it is clear that this was a judge-led initiative, strongly influenced by the work of AustLII). Lord Justice Saville (giving the judgment of the Court, which as I have said included Lord Justice Brooke, the President of the SCL and Lord Justice Waller) specifically directed , so important was it that the result go to every County Court in the land, that the entire judgment be placed immediately on the Internet, and sent to the FELIX judicial bulletin boards, and he added this:
'If this country was in the same happy position as Australia, where the administration of the law is benefiting greatly from the pioneering enterprise of AustLII, we would have been able to make this judgment available in a very convenient electronic form to every judge and practitioner in the country without the burdensome costs that the distribution of large numbers of hard copies of the judgment will necessarily impose on public funds'
This really is progress. The whole business of 'Official Transcripts', Crown Copyright, 'procedures', was wholly side-stepped at a stroke. Moreover, there could hardly have been a more senior, or a stronger, endorsement of AustLII, and the practical benefits of the Internet.
It actually took 2 days to get the judgment on the Internet, and it appears that the direction led to quite a lot of rushing about. Within hours of getting there,
however, it was 'front page news' at AustLII. They too need support, and were in the throes to trying to break down some of their last bastions namely the Supreme Court of Australia and the legislatures of Queensland and Tasmania.
Since then there have been further developments. The judgment in a first instance case concerning the Internet itself, and the 'summary' judgment in the McDonalds' libel case, have both been published on the LCD Internet pages. Much more interesting however, is the further teatment of the Bannister case. On 4th July 1997, the same Court of Appeal gave judgment in several other Order 17 cases. During the course of the argument in those appeals, it became apparent that certain dicta in Bannister could usefully be clarified. In the ordinary run of events, the judgment in the new case would have been delivered, and the cognoscenti would have cited both Bannister and the new case, drawing attention to the refinements that the latter made to the former. However, as the author statd before this occurred, the Internet has the advantage, as a medium, of permitting the publication of a revised version of a case. That is exactly what happened. In the later judgment, the changes to the Bannister dicta were identified, but the Court went on to say this, which not only resulted in one comprehensive and 'correct' statement of the law, but at the same time cured the 'defect' mentioned earlier namely that Internet publication does not permit of any absolute 'anchors' such as page numbers:
'We authorised two versions of our judgment in Bannister to be published, one in hard copy transcript form and one on the Internet. Because the page numbering of these two versions differed and because those who downloaded the judgment from the Internet are likely to have different paging systems, we have inserted paragraph numbering into the main text of the original judgment (as opposed to its Schedules). In the Schedule to the present judgment we explain the paragraph numbering we have now adopted. It also seemed to us that it would be very much more convenient if we were to incorporate into the original text of our judgment the corrections and clarifications we have mentioned, and we have directed that it is this revised version of our judgment in Bannister, as clarified and corrected, which should appear in any official law report. We have also directed that the text of the judgment which currently appears on FELIX, the judges' electronic communications system, and on the Internet on the website of the Lord Chancellor's Department should be replaced by this revised version, and copies of this revised version should be sent to court administrators for distribution to judges as before. In addition, this judgment should itself be distributed on FELIX and the Internet, and to court administrators for distribution to judges.'
We have come a very long way in a very short time. It is fair to say, however, that we had, and still have, a long way to go, and what is perhaps significant about all these developments is that they are all 'local'. That is to say, they have not necessitated any structural changes in, or interface between, the myriad different departments, agencies and budgets which make up 'the legal system'. Just as the common law has become fragmented so that its management has failed, so too is 'the legal system' made of so many different and discrete parts that there is no comprehensive planning or budgeting for the system as a whole. That means that progress is likely to be slower, and less comprehensive, than it should be, until the system is viewed, and managed, as a whole.
This type of ad hoc publication is both bound to increase and to be easier. 'Local' websites, run by various bodies such as the Judicial Studies Board, the Court Service and even divisions or groups of judges are likely to be with us very soon. However, at the moment the Court Service, whilst very pro-Internet and in some instances very pro-Paradigm, is not likely to be in a position to take on the burden of creating or managing the Paradigm database(s), so we turn to the last big question.
8.1 Who is going to do it?
We started from the premise that the like of AustLII is unlikely to be found here. If that is right, then what? One should start by observing that there are at least 2 versions of 'it': the integrated approach of AustLII, and the 'separate databases' approach favoured, or at least in place, in the USA. In the former all of the data are in one place, external to the 'suppliers' and it is there that the marking up and subsequent searching takes place. In the other, the data are kept by the 'suppliers' who do their own marking up, keyword-seeding and citation-tagging; searching is done from a remote 'front end', over the various databases. The author would personally favour the first approach by a wide margin, and accordingly that would emphasise the need for high security and reliability. A major academic institution would appear to be the most likely type of candidate. There is nothing more to add to that save for one last question: any volunteers?
8.2 What are they going to do?
It is clear that there are a number of separate strands. First, it is essential that the time-lags engendered by physical publication are minimised, so the job in that respect is to publish, on the Internet (free - always free), judgments as soon as possible. In addition to obviating delay that of itself, over time, produces a database of some value, but then come the second and third strands, which are what require more vision and effort, and they are the acquisition of past data and the comprehensive integration and hyperlinking of all such resources. To go back only a few years would be a great deal better than nothing, but the real value, and benefit to all, would come fom the complete achievement of the SCL's goal namely all of the law back to 1865. The maintenance of the database for the future is the next strand, and that involves some fascinating issues (not as to whether, just how in both senses: how will it be done, and how best should it be done).
8.3 The spin-off benefits
Let us finish on an unashamedly romantic note. The AustLII database contains a myriad references to English Law, which is the foundation of Australian law. There are no hyperlinks to the English cases, because there is no database to refer to - electronically they are just names and selected quotations at best. Commonwealth case law is cited in English Courts, especially where the point is moot here but has been considered elsewhere. Consider the effect on the respective jurisdictions once each has its own comprehensive database. They can be automatically and mutually marked up, more or less at the press of a button, such that all references, wherever they be, to the law of either jurisdiction are 'live'. The potential enrichment of the law of all participating jurisdictions is difficult to overstate. England, the mother of the common law, will be re-united with her (grown-up) children.
Footnotes
[1] For anyone who feels they might be assisted by an explanation of some of the jargon associated with the Internet, and the fundamentals of the World Wide Web and what HTML is and why it matters, I wrote some time ago for the Bar Council a paper called Cutting through the Jargon which, whilst somewhat simplistic, is intended to de-mystify this subject.
[2] Although the title gives AustLII the credit it undoubtedly deserves, it must be recognised that the creation of a comprehensive database of English law back to, say, 1865, and its subsequent maintenance in an intelligible form, is a hugely more complex task than that facing AustLII. Moreover, AustLII is not alone in providing primary law gratis on the Internet, and nor is its methodology the only way of achieving comprehensive public access to the law, but the fact remains that the AustLII people are pioneers (which is official now - see below), and they deserve all the credit anyone is prepared to give them.
[3] Hereafter the word 'judgments' is used although that is technically incorrect.
