The rule that judges, when deciding the cases before them, should follow the decisions of judges in earlier cases with similar facts, is the defining feature of the English legal system. The purpose of this rule, known as the doctrine of precedent, is to promote consistency in the law and how it is applied. Without this rule, it would be impossible for us as citizens to regulate our behaviour in line with the law, because there would be no way of knowing what the law was.
Essential to our legal system, therefore, is a method of reporting and publishing the decisions of judges so that they are accessible so that we can identify what the law on a particular subject actually is. It was for this purpose that the Incorporated Council of Law Reporting was created in the mid-Victorian era.
ICLR was established in 1865 by a group of lawyers driven to distraction by the difficulty they faced in trying to discover what the judges in the courts were doing. Prior to 1865, there was no single, systematic mechanism for publishing judgments. Back then, law reporting was carried out as a private profit-making enterprise by lawyers of questionable competence and in a style that probably caused more problems than it solved. Different reporters covered the same case but reported different outcomes and reasoning, and coverage was sporadic – scattered across a vast number of different publications, which made it necessary to buy all of them in order to achieve comprehensive access. These reports, despite their deficiencies, were eye wateringly expensive and difficult to get hold of.
The formation of ICLR was a quantum leap for access to the decisions of the courts and cleared away the chaos that had gone before. For the first time, law reporting was carried out by a single organisation in a systematic fashion by people who knew what they were doing. Cases that changed the law or clarified it (cases that created “precedent”) were carefully analysed, digested and included in England’s first regular series of reports: The Law Reports. And most importantly, as a charity, ICLR sold its reports at prices consistent with the cost of production on a not-for-profit basis.
The Law Reports, which continue to be published monthly, provided the blueprint for virtually every series of law reports published in the UK since the reign of Queen Victoria. But, a great deal has changed over the past 150 years. One change, in particular, is that the number of cases being fought by parties without legal representation has increased at an alarming rate.
The recent surge in the so-called phenomenon of ‘self-representation’ has rightly caused some collective head scratching at organisations like ICLR. Whilst publications such as The Law Reports clearly improved access to the decisions of judges, the reality is that the style of law reporting crafted over the last 150 years has always been targeted at a legally qualified audience. For judges and lawyers, law reports are ‘tools of the trade’; for legal academics and students, they are a source of learning.
Law reporting proper offers little to the growing number of people who lack legal training but nevertheless require the ability to access, understand and deploy the decisions of judges in court themselves. Judgments are by their nature often complex and long winded. The purpose of law reports is to provide the (professional) reader, by way of the headnote, with a clear insight into what a particular case was about and what was decided, without the need to wade through judgment itself. However, the compressed, legalistic drafting style of headnotes is not easily comprehensible to the general public. Moreover, law reports cost money, which poses yet another significant barrier to their use by self-represented litigants. The challenge for law reporters is to recognise and satisfy the needs of this new and rapidly growing audience: individuals without legal training who are forced to represent their interests in court without the help of lawyers.
The rise of online information has helped to move things in the right direction. An enormous archive of judgments is now freely available (albeit, without headnotes) on BAILII – where the primary materials of the decisions of judges are now more widely available than ever. And, free sources of secondary materials that explain the decisions of judges in clear language are blossoming – the Justice Gap is a prime example. The UK Human Rights Blog is now a mainstay of clear and accessible explainers of human rights decisions. The UK Criminal Law Blog offers a wealth of easy-to-read coverage of criminal law and sentencing. The Supreme Court has itself broken new ground by producing short, punchy summaries of its own decisions, which are available as soon as judgments are given. And finally, the ICLR has been publishing free summaries of decisions from the High Court to the European Court of Justice for the past eight years on its website.
The combination of the increasing number of people going into court on their own behalf, coupled with the effects of the doctrine of precedent, presents those charged with reporting the law with a challenge that is just as serious as the chaos ICLR was established to cure 150 years ago. What is certain is that the decisions of judges apply to all of us and it is vital that they are made accessible, in every sense of the word, to all.
Daniel is the Research & Development Manager at the Incorporated Council of Law Reporting for England and Wales. He is a Barrister (non-practising) having been called to the Bar in 2009 by Inner Temple.