Part 2: Open Access To English Case Law (The gaps)

This is the second substantive article in a series of pieces I am preparing in the run up to a talk I'll be giving in June at the annual conference of the British and Irish Association of Law Librarians (BIALL)

To recap, I first issued a primer, in which I essentially say that the state of open access to case law in the UK isn't where it ought to be in 2018 and that our open case law offering is out of step with similar projects elsewhere in the common law world (e.g. Canada and the United States). 

The primer was followed by the first substantive piece, which attempted to (i) define what "open access to case law" actually means and (ii) set out four justifications for providing open access to the decisions of judges. 

Comprehensive coverage of case law

The crucial point I sought to make in the first article was all about what "open access to case law" actually means. I define (perhaps a little crudely) open access to case law in the following terms:

Open access to case law" isn't a "thing", it's a goal. The goal, at least to my mind, boils down to providing access that is free at the point of delivery to the text of every judgment given in every case by every court of record (i.e. every court with the power to give judgments that have the potential to be binding on lower and co-ordinate courts) in the jurisdiction.

My definition places emphasis on comprehensiveness of coverage: the text of every judgment given in every case by every court of record should be freely available. I deliberately avoid folding additional requirements into the medley. I do not, for example, consider the inclusion of summaries and headnotes that explain the judgments to be part of the core mix (though, summaries are very much nice-to-haves). Nor do I say anything about technology (though, it goes without saying that delivery of the scale of comprehensiveness my definition requires could only be achieved with an online platform). 

Currently, the UK's primary open law outlet, BAILII, for reasons I'll go on to develop in the next article, is providing access to only a fraction of the judgments given in the senior courts. That this is the case, it should be noted, is through no fault on the part of BAILII.  

Gaps in BAILII's coverage

The following graph illustrates the problem. The graph is based on a count of the number of judgments given in the Court of Appeal (Criminal Division) with a [2017] EWCA Crim neutral citation. Justis, via their JustisOne platform, provide access to 1,216 judgments from the Criminal Division with a 2017 citation. WestlawUK doesn't fare quite as well, with 967 available Crim Div judgments. Now look at BAILII. Only 230 Criminal Division judgments are available for 2017

Count of judgments with [2017] EWCA Crim citation on BAILII, JustisOne and WestlawUK

Assuming that Justis' total of 1,216 represents the total number of judgments given in the Criminal Division of the Court of Appeal bearing a [2017] neutral citation and that the 230 judgments on BAILII form part of that overall total, we can project a view of the proportion of open-access to closed-access judgments (i.e. access is restricted to an area behind a subscriber paywall).

For anyone out there under the impression that there is any semblance of symmetry between the quantity of judgments available in the open and those accessible behind a paywall, the numbers point emphatically the other way. Taking the JustisOne total of 1,216 as the definitive quantity of 2017 Criminal Division judgments, only 19 percent (less than a fifth!) are freely available. 

The situation so far as availability of judgments flowing from the Civil Division of the Court of Appeal is concerned, is not quite as bad, though it still isn't good.

Court of Appeal (Civil Division)

Count of judgments with [2017] EWCA Civ citation on BAILII, JustisOne and WestlawUK

Again, taking the JustisOne count of 755 Civil Division judgments for 2017 as the definitive total and assuming that the 527 judgments available on BAILII are included in that total, the proportion of open to closed access is 70 percent, which is a good deal better than the criminal content but it's still falling well short of where it should be. 

The reasons underlying the lack of symmetry between open access coverage and the coverage offered by the commercial providers boil down to the hopelessly knackered pipeline that takes the judgments (whether handed down or given extempore) further downstream (more on this in the next article). 

Finally, it also bears saying that the lack of symmetry in coverage is not the fault of the commercial suppliers. They are not operating in a way that prevents BAILII from obtaining the data itself. It's just that the commercial suppliers have precisely what BAILII lacks: the resources to navigate a system of judgment supply that is entirely unfit for purpose and left to rot for far too long.