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The tale of a transcript, and a triumph for transparency

Previously on this blog, we had tea at the Ritz (as in: justice is open to all, just like the…). It was quite a treat, finding out all about court fees and costs. The tea wasn’t bad either, with a choice of brews and plenty of sandwiches, cakes and scones. And for sparkling company (I can now reveal), I had none other than award-winning Guardian journalist and fellow Transparency Project member Louise Tickle.

Although that wasn’t the reason we were having tea, it just so happens that Louise has since had to pay some of those fees to bring a case herself. I discussed one aspect of the case in an earlier post, Transparency: an open and shut case — or be careful what you wish for? This present article focuses on a different aspect, namely the costs of getting a transcript of a hearing or judgment in your own case.

Louise appealed against the reporting restrictions imposed in a case she was covering in Portsmouth family court. The Court of Appeal allowed her appeal and their judgment was published: In re R (A Child) (Reporting restrictions) [2019] EWCA Civ 482. You can read it on BAILII. But the ruling of Judge Levy in the Portsmouth court, was not publicly accessible until Louise herself made an application for the hearing to be transcribed and permission to publish it. That application was granted and the transcript was duly published on the Judiciary website, under a different title as: Person A v Southampton Local Authority.

Once the transcript had been published, Louise wrote a post on The Open Family Court blog criticising the judge and lawyers involved. By way of introduction, she said:

‘Reading a transcript of a hearing can be confusing, because nobody talks in perfect sentences, and the progression of events isn’t always totally clear, so I thought I’d write this post to point out the elements that were so problematic in the way that the application to impose reporting restrictions was made by the parties, and in the way the judge carried out – in point of fact, didn’t carry out – the “balancing exercise” between articles 6 (right to a fair trial), 8 (privacy) and 10 (freedom of expression) [of the Human Rights Convention] that is required when imposing limitations on the important human right of freedom of expression.’

Louise wanted the transcript to be able to write about the case and to shine a light on the way the lawyers and judge had seemingly shut down debate and drawn the blinds on transparency. In this case they even insisted material already in the public domain, including the detail in an earlier published Court of Appeal judgment, should be suppressed.

When the case went for a second time to the Court of Appeal, in an attempt to pull up those blinds and let the light back in on the case, there was a hearing in open court (as is usual for that court, even in family cases) before Sir Andrew MacFarlane, President of the Family Division, and Lady Justice King.

I attended that hearing, as did others from the Transparency Project. For us it was an important test case for open justice. The advocates appearing for Louise, Paul Bowen QC and Sarah Phillimore, as well as the lawyers for some of the other parties, all acted pro bono. A BBC journalist, Sanchia Berg, who was also covering the case in Portsmouth, joined Louise in her appeal.

One of the things that emerged from the hearing, and which the President of the Family Division promised to do provide some official guidance on, was the difficulty facing a journalist in either applying for a relaxation of, or resisting an application to extend, the reporting restrictions in a case where everyone else will have lawyers to argue the point, but they themselves don’t. Some seasoned court reporters are perfectly confident about standing up in court and arguing over what they can and can’t report. But many aren’t, particularly if it’s an unfamiliar court, perhaps at the other end of the country, with a judge who regards you as a bit of an interloper and is perhaps not used to the point being argued at all.

As it happens, we are still waiting for the outcome of a consultation which Sir Andrew launched soon after, and to which the Transparency Project responded. But the judgment of the court, though given orally on the day, was transcribed and published fairly quickly (see above).

But Louise wanted the whole story to be available, so she applied for a transcript of the hearing as well. This she has now got. She’s published it on her blog, under the intriguing title Don’t be shy, Mr Bowen. It makes for interesting reading, not least for the fact that our book, referred to as ‘Transparency in the Family Court Publicity and Privacy in Practice, by Judy Doughty, Lucy Reed and Paul Mcgrath’, is mentioned not once but twice, and in glowing terms by counsel and the bench. There follows this rather surreal exchange:

MR BOWEN: I am not selling (inaudible).

LADY JUSTICE KING: –you referred to it extensively in your, in your skeleton argument that only one of the judges had a copy. That is very sad.

MR BOWEN: And quite often, quite often.

SIR ANDREW MCFARLANE: Direct fishing—-

MR BOWEN: So—-

SIR ANDREW MCFARLANE: –it takes place on the Bench.

MR BOWEN: So, so we, all we—-

SIR ANDREW MCFARLANE: No, but I did – these are important – the, the – what has been achieved by the responsible bringing of this appeal, as I see Miss Tickle’s action being, is to flag up the need for this to be given far greater prominence for judges up and down the land to understand if they get one of these it has to be dealt with properly, and in accordance with a, a route map. The scales have to be brought out on each occasion.

MR BOWEN: Indeed.

SIR ANDREW MCFARLANE: You know, so it is—-

MR BOWEN: And perhaps, perhaps for all the judges to be issued formally with a copy of Transparency in the Family Court, by Doughty, Reed and Mcgrath.

SIR ANDREW MCFARLANE: There we go.

MR BOWEN: I am not on a commission. I just repeat that again.

SIR ANDREW MCFARLANE: No, no.

MR BOWEN: My Lord, my Lady, unless there is anything else I can assist you with?

SIR ANDREW MCFARLANE: No, that is very helpful.

Mr Bowen may not be on a commission, but his suggestion that all the judiciary be issued with a copy of our book seems unimprovable. (But I would say that, wouldn’t I?)

The transcript is illuminating in other ways. It gives a good flavour of what court hearings are like, unlike the polished prose of a judgment or counsel’s written submissions. More of this sort of thing would certainly help transparency, in the sense of an understanding of how things work.

But getting the transcript was quite a saga. And so we come back, once more, to that Ritz-like menu of costs and fees. These are the menu options that Louise selected:

  • Permission to appeal (from the Portsmouth judge’s ruling): £528
  • Transcript of the Portsmouth hearing: £120
  • Court of Appeal hearing fees: £1199
  • Transcript of the Court of Appeal hearing: £550

Transcripts are a struggle to obtain because, quite apart from the cost, the system of getting transcripts of hearings and judgments is antiquated and confusing. Although you can apply using a standard form, the people doing the actual transcribing can be a different company depending on which court you want it from. The Ministry of Justice (MOJ) has appointed a small number of regular transcribers, who handle the majority of High Court and Court of Appeal cases, but for other courts the relevant transcriber can be chosen (by the local court office) from a “panel” of approved transcribers, who may be quite varied in quality and speed.

Louise is freelance and was able to pursue the case mainly thanks to donations via her crowdfunding appeal and the fact that lawyers acted for her without payment, which was noble of them. But as the menu above shows, quite apart from court fees, the cost of getting transcripts is far from negligible.

Someone who is seeking to improve the situation is Sophie Walker, a barrister who specialises in criminal appeals. One of the obstacles facing those seeking to overturn what they claim is a miscarriage of justice is the difficulty and expense of getting trial transcripts. The situation in America, where Sophie used to work as an appeals lawyer, is quite different. As she explained in the Transparency Project’s panel discussion on Truth, Trust and Transparency in the Courts, at this year’s Byline Festival, when working as an appeals lawyer in Montgomery, Alabama, she would hear a case before she saw it. She would hear it coming down the corridor on a trolley piled high with beautiful 200-page bundles of transcripts containing every word of the case. But to obtain the same service in the UK, you might have to pay £120 an hour. For a long running trial, that would be prohibitive. You might just about be able to afford (or get legal aid for) the transcript of the judge’s summing up, with a view to picking holes in it. But not all the evidence of witnesses. And that’s assuming the recording hadn’t (as they routinely are, after a certain length of time, usually seven years) been wiped.

Sophie’s view was that litigants should be entitled to a transcript of their hearing automatically, and that modern technology would make this both cheap to produce and easy to manage. It would help litigants to understand what had happened in their case, and it would enable them quickly to get advice to help them appeal, or indeed to help them decide not to appeal. Sophie has founded a start-up, JUST: Transcription, to revolutionise the process. But it needs a change of culture at the MOJ, who still appear to think of court transcription as a monetizable service aimed at litigants, rather than as an essential aspect of open justice and something reporters and researchers ought to be able to expect as a matter of course.

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Paul Magrath is head of product development at the Incorporated Council of Law Reporting for England and Wales (ICLR) and a member of the Transparency Project. He is one of three authors of Transparency in the Family Courts: Publicity and Privacy in Practice. 

 

 

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