Why are the Ministry of Justice courting Courtel?

A while back I was trying to get listings from my local county court, for a trial that I knew was coming up that I wanted to attend.  I was surprised to find only daily listings on Her Majesty's Courts Service website, so I contacted the relevant court and asked them.  They said they could provide me with information on what cases would be heard the next day, but no more.  It turned out they held listings for the week ahead, but they weren't allowed to shared them with members of the public.  If I wanted to attend a particular trial, I would have to harass the poor court officer every day to find out what was coming up.  This seemed like a monumental waste of both my time and theirs.

At first I wondered if the information was not made available because it was likely to change at short notice, or because it wasn't collected in an easily shareable format.  But information about forthcoming hearings is made available - for a fee - through a third party website.  Courtel Communications Ltd 'deliver a comprehensive Court List distribution service in electronic format to the legal community in England and Wales' via Courtserve.  I posted a question on Twitter about this a month ago and Judith Townend pointed me towards this excellent Freedom of Information Request by Mark Goodge.  Goodge found that the Ministry of Justice has a contract with Courtel Communications whereby:

The Authority grants the Licensee an exclusive, perpetual license to publish the Lists on its website and to publish and distribute the Lists via its Email Express Service and CourtServe 2000 System for the County Courts

This effectively ensures that any member of the public who is not registered with Courserve will not be able to access the court listings (except through daily harassment of the court staff).

The peculiar thing about this license, is that the Ministry of Justice appears not to have accepted any kind of payment for these listings.  The Ministry of Justice supplies the information to Courtserve for free.  On his blog Goodge writes:

Courtel are getting all the benefits of a data monopoly, while the taxpayer (via the court service) gets nothing in return as the data is being given to them for free. And the consumer loses out as the restrictive nature of Courtserve means that public access to the information is unduly limited and costly... I think this is bordering on scandalous. While other departments of government have made great strides towards opening up their data for public use, the Ministry of Justice and the court service have quietly headed off in the other direction and made access to their data less open instead.

On the surface, I find it rather hard to disagree.  It seems to fit within a wider pattern of a lack of transparency and open access to information in the UK legal system.  A system where the public have no free access to up to date copies of legislation.  Where court judgments are not always published, and yet some of these unpublished judgments manage to find their way onto third party websites (sometimes only accessible through expensive subscriptions).  Even academic legal journals seem to be beset by this information paucity; perhaps a result of a heavily monopolised and technologically outdated publishing culture.

In a later blog post, Goodge questions whether the Ministry of Justice's licence with Courtel Communications may even be illegal.  He cites The Re-use of Public Sector Information Regulations 2005, which stipulate that 'a public sector body shall not enter into an exclusive arrangement with any person including an applicant.'  It seems to me this would be an interesting point to take up with the Ministry of Justice.

Illegal data monopoly, or outsourcing data protection?

I find this situation more than a little perplexing.  It would make more sense to me if the Ministry of Justice were in some way financially benefiting from the sale of the information.  Given that they are not, what benefit does the license bring to them?  The information must be shared, certainly, but it seems to me that in this day and age it would incur minimal costs to post the information they send to Courtel on their website.  The only answer that occurs to me, is that the Ministry of Justice cannot (or believes it cannot) post the raw information on its website for data protection reasons.  By outsourcing to Courtel - who restrict the users of the information - they can ensure the information distribution is kept to a minimum without the faff of having to register court list users themselves.  Indeed, the contract itself contains quite a lengthy data protection clause (clause 5), restricting how long Courtel may store the data for and how they may process it.  Another point in favour of this possibility, is that the HMCS website that gives the daily listings appears to have blocked internet crawlers that cache webpages (see, e.g., the Wayback machine for the HMCS site which seems to have been blocked from July 2009 onwards).  This would prevent any third party from collating data on who had been involved in court proceedings in the past.

Of course, that does not mean the Ministry of Justice's reading of data protection law is correct, nor indeed means its license is compliant with the Re-use of Public Sector Information Regulations 2005 or the ideals of Open Justice.  I was about to draft a Freedom of Information Request to probe this matter a bit more, but fortunately enough Mark Goodge got there first.  I love it when that happens.  I'll keep you posted on his response.

Tut tut - did the Ministry of Justice plagiarise the Bar Council?

On a tangentially related note... a while back I asked Whose copyright is it anyway?, regarding who owned the copyright of court judgments.  I had made an FOI request to the Ministry of Justice in which they had written:

I am pleased to be able to release to you, outside the scope of the Act and on a discretionary basis, some information that we have readily available to answer questions 3 to 7. We hope you find the information below useful.

The position regarding copyright in court judgments is not, however, entirely clear. The Office of Public Sector Information (OPSI), is part of the National Archives and manage all copyrights owned by the Crown on Her Majesty’s behalf. Copyright material which is produced by employees of the Crown in the course of their duties and therefore most material originated by ministers and civil servants is protected by Crown copyright. There is no definitive view on whether court judgments are Crown copyright. Although OPSI, following advice from the Treasury Solicitor, take the view that copyright in court judgments rests with the Crown, in that judges are officers or servants of the Crown and their judgments are delivered in the course of their duties, this is not a universally held view and it can be argued that judges act independently of the Crown and that copyright in court judgments rest with individual judges. OPSI’s position is that insofar as judgments are Crown copyright it is content for them to be re-used free of charge and without requiring prior clearance providing the source is acknowledged. Consideration would need to be given to the rights of reporters and journalists as published editions of judgments attract copyright protection in the typographical arrangement of their published editions although not in the judgment itself. Reporters may also seek copyright protection for additional content such as head notes and other commentary.

Mark Goodge, reading my post, pointed out the striking similarities of this passage with a statement on the Bar Council's website...  I do hope the Ministry of Justice haven't been plagiarising anyone.  It would just be too much to plagiarise another organisation's work on the subject of copyright.