The Americas / Publication of judgments in a tiny community: Challenges and Solutions by Aisha de Four, Head of Courts and Tribunals Service, the Falkland Islands

Publication of judgments from the Falkland Islands Courts have posed unique challenges to the Falkland Islands’ Courts and Tribunals Service (“Court Service”). This article describes the challenges faced and the current response by the Court Service.

To provide some context for the challenges faced, it is important to have a brief outline of the demographics and of the structure of the judiciary and Court Service in the Falkland Islands.

The Falkland Islands is a country with a large land mass, but with a population of just over 3,200 people (figure from Falkland Islands government (falklands.gov.fk). The Court Service supports a judiciary currently composed of 12 volunteer lay Justices of the Peace (who perform a role similar to that of the lay magistrates of England & Wales and comprise the Summary Court), one legally trained Senior Magistrate who is also an Acting Judge of the Supreme Court as the need arises, and an itinerant Chief Justice who attends to preside over complex Supreme Court matters as needed. Appeals from the Supreme Court go to a Court of Appeal which is based in England. The apex court is the Judicial Committee of the Privy Council (JCPC).

On its website, the Court Service publishes all written judgments:

• The Summary Court rarely produces written judgments.
• The Magistrate’s Court, in which the Senior Magistrate sits, regularly issues written judgments.
• Judgments from the Supreme Court, Court of Appeal and the JCPC are published.

Length of Time of Publication

Locally, there is controversy around the propriety of publication of judgments from the Magistrate’s Court. The Senior Magistrate , has jurisdiction over a wide range of criminal matters, as by section 180 of the Criminal Procedure and Evidence Ordinance 2014 (CPEO) all criminal offences are triable summarily except for certain offences which have been specifically carved out as triable by indictment only (e.g. murder, manslaughter, rape etc.). This is unlike the Magistrate’s Court in England and Wales where sentencing powers are limited and summary offences are prescribed by statute. The unlimited sentencing power of the Falkland Islands Senior Magistrate, coupled with the low number of matters passing through our Magistrate’s Court means that the Senior Magistrate has the capacity to produce reasoned judgments and sentencing remarks for all criminal matters considered by that court. These reasons are all published on the Court Service’s website.

Our Court Service was challenged on this practice. A comparison was made between the Falkland Islands and England & Wales. In England & Wales, reasons from the Magistrate’s Court and Crown Court are not routinely published and, if published, would not be indefinitely available. The Court Service was also challenged to consider the effect of publishing the Magistrate’s Court reasons indefinitely in the circumstances of a tiny community. The argument was that the past indiscretion of a community member remains live and accessible on our court service website despite his/her offence being spent according to Schedule 10 of the CPEO.

The Jigsaw Effect

The second local challenge that the Court Service received on the publication of judgments arose out of the likelihood of members of the public being able to identify the victims in sexual offences when reading the circumstances of the offence set out in the judgment (particularly in the case of children victims). The public is able to ‘jigsaw’ together who the victim is, stripping away the anonymity otherwise afforded to the victim by statute.

Solution

The length of time of publication of judgments and the jigsaw effect were discussed at the Falkland Islands’ statutorily created Criminal Justice Council (CJC), the mandate for which is to make the criminal justice system more effective and efficient. Minutes from the CJC meetings are published on the Court Service’s website. Out of this discussion, the Chief Justice approved a policy setting parameters on the publication of judgments.

In this judgment publication policy, it is specifically recognised that court judgments and tribunal decisions are important public records, and that open justice is a constitutional principle which “applies to all courts and tribunals exercising the judicial power of the state” per Lady Hale, President of the Supreme Court of England and Wales in Cape Intermediate Holdings Ltd. v Dring [2019] UKSC 38, para 41.

In response to the first challenge of length of publication of judgments, the policy sets out that written sentencing remarks at first instance will be published until the offence will be deemed spent at the time the offence is committed. The date of deletion will be included on the cover page of the reasons. If these reasons are to be published beyond the statutory rehabilitation period, (as, in the view of the court, the remarks contain dicta on a principle of law or are of general public importance) this will be indicated on the cover sheet to the reasons.

In response to the second challenge on identification of victims, the judiciary is directed by the policy to write decisions in a way so as to fully capture the circumstances of an offence but without descending into salacious descriptions. Prior to publication, the court service will anonymise any decision in accordance with any statutory provisions or court orders relating to anonymity of the victim or protected information to subvert any attempt to deduce the identity of the victim.

This policy is currently being rolled out and older judgments are being audited and edited to ensure compliance with the new policy. Readers are welcome to email the Court Service at enquiries@courts.gov.fk for more information or for a copy of the judgments policy. The Court Service is also open to sharing experiences in Court Administration across the Commonwealth.

Author: Aisha de Four
Designation: Head of  Courts and Tribunals Service
Organisation: Courts and Tribunals Service
Country: Falkland Islands

Contact: headofcourtservice@courts.gov.fk