Justice Data

‘Justice system data’: a comparative study (A report examining how Canada, Australia and Ireland manage the data and information that is generated by their justice systems) by Judith Townend and Cassandra Wiener for The Legal Education Foundation (TLEF) analyses 

the ways in which ‘justice system data’ – that is the information generated by the process of justice – is managed in three countries: Australia, Canada and Ireland. It considers how data-sharing methods are perceived to relate to judicial independence, innovation, and public understanding and confidence in the justice system. ... the report builds on previous TLEF work on justice data in England and Wales, and aims to inform UK-based policy making as well as knowledge exchange in international legal and technology networks. 

The research

identified that:

• There is a common understanding and definition of ‘justice system’ data types and access in the three case studies of Australia, Canada and Ireland, though in all contexts justice data management has evolved messily over time (with emergency measures during the COVID-19 period) rather than as the result of purposive design. 

• Improved access to justice data is perceived by legal, academic and NGO stakeholders to help deliver access to justice, and protect important principles of open justice, judicial independence and public understanding of the law, and is part of these countries’ work to meet access to justice policy objectives, including UN Sustainable Development Goal 16. 

• In opening up justice data, challenges and tensions across the jurisdictions were also exposed: the impact of legacy practices; the under-investment and decentralised approach to technological reform; a data deficit for user and case experience; a tension between privacy and transparency in the provision of court records containing personal data; and a lack of accountability measures for the management of justice system data. 

• There is limited robust empirical data with which to measure the impact of justice sharing and access methods against desirable outcomes for a justice system.

In light of the findings, we argue that there is a need for:

• Clearly presented policies, shared publicly, on the differing roles for executive, court service, judiciary and any third-party providers in the management of justice system data. 

• Accountability mechanisms for access to justice data: i.e. appropriate routes of application and appeal for accessing justice data that is not readily available in the public domain. 

• Consideration of public and court user views and experiences in the design of justice system data processes (especially with regard to the use of personal data). 

• Detailed measurement of the impact of data sharing practices on outcomes of the justice system.

The authors comment 

 Contemporary justice systems are complex and messy as a result of anachronistic structures and rules that have evolved since the medieval period; they have not been neatly designed to fulfil specific purposes and protect individual or collective interests (even if these purposes and interests are now cemented and protected in national and international law). Inevitably, this means ‘justice system data’ – that is the information generated by the process of justice – is equally complex and messy, with a hybrid of policies and laws governing its collection, storage and dissemination. The transition from analogue and paper-based systems to digital technological methods, with some aspects fast-tracked during the COVID-19 pandemic period, has only further complicated the picture. Despite the importance of reliable data for the purposes of understanding law and legal process, for the development of evidence-based justice policy, and for meeting the objectives of fair and open justice, the theory and practice of justice system data management are rarely the primary focus of academic and policy attention, and often incidental to a broader discussion about an aspect of law. There are, of course, notable exceptions. A previous report on digital justice in England and Wales by The Legal Education Foundation (TLEF) identified data needs within the English justice system and urged the creation of a robust strategy for data collection, analysis and sharing, with 29 specific recommendations, which HM Courts and Tribunals Service (HMCTS) responded to in October 2020. More recently, the Civil Justice Council/TLEF review of the use of remote civil courts during the COVID-19 pandemic highlighted the data gaps on civil justice, and re-iterated the need for the expansion of data collection, and investment in robust data systems. 

In order to further explore this area, we were commissioned by TLEF as part of its ‘Smarter Justice’ programme, which includes developing a Justice Lab UK, to undertake a short-term comparative study considering the ways in which justice system data is managed in different countries, focussing on English-speaking common law jurisdictions. The overall objectives of this study were to consider how current approaches and past experiences can inform the development of justice data systems in other contexts. The research took place from May–August 2020, conducted remotely during the COVID-19 restricted period. 

We contend that while part of a broader agenda on open data and access to administrative data, justice system data deserves its own particular and special treatment, owing to the particular constitutional principles underpinning its generation and use, such as a separation of powers between judiciary and executive. 

Within the scope of this project we cannot promise a complete overview of each of the chosen countries; as we peeled back the layers of the chosen jurisdiction, we discovered further layers of complexity and idiosyncrasy, as we attempted to understand the handling of justice system data within the federal or national level courts, the state or province level courts, and within these, between different court types and jurisdictions (civil, criminal, family, tribunal). Even within a court ‘type’ in a single regional jurisdiction, there may be differences in practice and policy. We have, however, attempted to set out a more thorough comparative review than currently exists in the academic and policy literature. Our review focuses on Australia, Canada and Ireland, with some reference to other global and national initiatives. Our goal is to inform policy development in England and Wales and beyond but as one of our interviewees advised, we do not attempt to set universal recommendations or standards at this point. Instead we focus on evidencing and explaining the principles and practice of existing systems and drawing conclusions on what has and has not worked in the regions we studied, highlighting good practice examples. We hope these conclusions can be drawn upon to inform future justice data governance in England and Wales, where some of the recommendations of ‘Digital Justice: HMCTS Data Strategy and Delivering Access to Justice’ (Byrom, 2019) are already being progressed, as well as to assist initiatives in other countries and at a global comparative level. 

1.2 The brief and our approach 

Our brief asked us to consider: 

1 How other countries define ‘justice system data’. What are the categories they use to describe the different types of data generated by the justice system? This includes information like case files, judgments, management information, tribunal decisions etc. 

2 What arrangements are in place for making this data available to different stakeholders (public/press/researchers/private sector) and how are they financed? To what extent have other countries delegated the function of data dissemination to the private sector? 

3 Where have other countries placed different types of data on the open/shared/closed spectrum? Are these arrangements time limited, e.g. closed until x date? 

4 What have been the benefits and drawbacks of the approaches developed in these countries? We are particularly interested in identifying robust research that is capable of demonstrating a link between the types of sharing practices adopted and: a. judicial independence b. public understanding of the law c. public confidence in the justice system d. innovation e. the attractiveness of the legal system as a forum for resolving disputes. 

In order to answer these questions, via literature review and remote interviews, we have structured our report as follows. Following this introduction, which includes a description of the methodology of the report, Chapter 2 gives more detailed context for the report, providing a definition of ‘justice system data’; details of global initiatives on improving justice data; the risks and safeguards for managing justice data; and an overview of justice system data in England and Wales. Chapters 3, 4 and 5 describe our main case studies, the justice systems in Australia, Canada and Ireland, considering the questions above for selected courts in each jurisdiction, and other relevant issues that emerged in the course of the research. Chapter 6 offers a comparative and critical analysis of all three case studies, with some reference to other jurisdictions, including England and Wales; and makes some general conclusions and recommendations of good practice for policymaking and practice in this area (while not attempting to draft universal standards). The Appendices offer a list of key resources and information about our interviewees. 

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Speech

'Defamation Actions and Australian Politics' by Michael Douglas in (2021) 5 UNSW Law Journal Forum comments 

 In recent years, politicians have been frequent participants in Australian defamation litigation. Attorney-General Christian Porter’s recent claim against the Australian Broadcasting Corporation and journalist Louise Milligan is a notable example of the weaponisation of defamation in Australian politics. This article reviews prominent examples of where politicians have commenced or threatened defamation proceedings. The article also considers whether the trend of politicians litigating defamation is desirable, and how it will be affected by the amendment of the Uniform Defamation Acts once the Model Defamation Amendment Provisions 2020 are implemented. 

Douglas argues 

In recent years, politicians have been frequent participants in Australian defamation litigation. Attorney-General Christian Porter’s recent claim against the Australian Broadcasting Corporation (‘ABC’) and journalist Louise Milligan  is a notable example of the weaponisation of defamation in Australian politics. This brief article reviews prominent examples of where politicians have commenced or threatened defamation proceedings. The focus is on cases in which politicians are plaintiffs, although some cases mentioned below also involve politician defendants.  The article considers whether the trend of politicians litigating defamation is desirable, and how it will be affected by the amendment of the Uniform Defamation Acts once the Model Defamation Amendment Provisions 2020 are implemented. It begins by considering the value of politicians’ reputations, which defamation law may protect. 

 ‘Reputation’ is a multi-faceted concept at the heart of defamation law.  The value of a person’s is bound up with their honour and dignity, and their standing in society.  Australian defamation law protects the value of a person’s interest in their reputation by providing that publication of matter about a person that damages their reputation, is actionable.  If reputation is what society generally thinks of a person,  then every one of us who is part of the community has a reputation. Politicians are no different. Politicians’ reputations may be different to those of ‘regular people’ in some respects. First, a politician derives an income from their reputation in a way that many (but not all) individuals do not. While impact on a person’s employment may sound in special damages that would be unavailable to a person whose employment was not affected by defamation,  the High Court has confirmed that the general test for defamation applies to professional and non-professional reputations alike. 

Second, politicians’ reputations are bound up with their work in political institutions. We judge politicians by their ability to deliver on promises, their integrity, and how their expressed values align with their lived values.  Our system of representative government depends on politicians’ accountability to the public. Thus, some criticism of public officials is to be expected or even welcomed. Arguably, the public is less likely to take a derogatory comment about a politician to heart; people understand that politicians will be criticised no matter what.  However, insofar that Australian law protects freedom of speech in order to keep leaders accountable, its focus is on the subject matter rather than the person.  The freedom of political communication implied in the Commonwealth Constitution is narrowly confined to certain political speech. The so-called ‘Lange qualified privilege’  underpinned by that freedom is narrow in its operation,  as some of the cases below illustrate. 

Third, putting aside their financial incentives, politicians may have a stronger incentive to sue over defamation than other would-be plaintiffs. Perception is critical to a politician maintaining their standing in the system and grip on power. Several Australian politicians have resigned in the wake of allegations of impropriety.  Although truth provides the foundation of a justification defence for a person publishing an allegation of impropriety,  the mere threat of defamation litigation may be enough to sway some to believe that any allegations were unfounded. The mention of defamation by a politician can signal to the electorate that damaging publications are merely ‘fake news’. The frequency of defamation litigation involving politicians shows that many perceive defamation law as providing a powerful political weapon.

Memory

'Amazon Echo Dot or the Reverberating Secrets of IoT Devices' by Dennis Giesse and Guevara Noubir in Proceedings of Conference on Security and Privacy in Wireless and Mobile Networks, Abu Dhabi, United Arab Emirates, June 28–July 2, 2021 (WiSec ’21),comments 

Smart speakers, such as the Amazon Echo Dot, are very popular and routinely trusted with private and sensitive information. Yet, little is known about their security and potential attack vectors. We develop and synthesize a set of IoT forensics techniques, apply them to reverse engineer the hardware and software of the Ama- zon Echo Dot, and demonstrate its lacking protections of private user data. An adversary with physical access to such devices (e.g., purchasing a used one) can retrieve sensitive information such as Wi-Fi credentials, the physical location of (previous) owners, and cyber-physical devices (e.g., cameras, door locks). We show that such information, including all previous passwords and tokens, remains on the flash memory, even after a factory reset. This is due to the wear-leveling algorithms of the flash memory and lack of encryption. We identify and discuss the design flaws in the storage of sensitive information and the process of de-provisioning used devices. We demonstrate the practical feasibility of such attacks on 86 used devices purchased on eBay and flea markets. Finally, we propose secure design alternatives and mitigation techniques.

Citizenship Shopping

Ius pecuniae again, with the Guardian reporting that 'the sale of passports' (in other words citizenship-by-investment, aka CBI) brought in over US$100m to the Vanuatu government last year, with Investment Migration Insider clasiming the sales accounted for 42% of all Vanuatu government revenue in 2020. Since January 2020 over 2,000 people have purchased Vanuatu citizenship. That nation has 300,000 people. 

'The pros and cons of ius pecuniae: investor citizenship in comparative perspective' (EUI Working Paper RSCAS 2012/14) by Jelena Dzankic comments 

This paper looks at the economic inclusivity of citizenship regulation and draw parallels between different countries offering naturalisation to investors. The underpinning question of the paper is whether investor citizenship has a merely economic dimension in terms of attracting foreign capital, and whether and when there is also a normative argument for making naturalisation easier for investors. By answering this question, the paper highlights the tension in understanding the logic behind investor citizenship programs. That is, in deciding to naturalise investors, states can either maximize economic utility and grant citizenship to investors by waiving all other naturalisation requirements, or uphold genuine ties with the polity as the core of citizenship by retaining them. 

Citizenship denotes the relationship between the individual and the state, including the rights and duties stemming from an individual’s membership in the polity. Citizenship, as such, is a relationship of reciprocity (Held 1991: 20), which has both a political and a normative dimension. The political dimension of citizenship is intimately related to participation, through which individual members of the community exercise their will. The political aspect of citizenship has implications for the nature of the relationship between the individual and the state, as it also entails the individual’s loyalty to the state and his or her identification with the polity. In cases of individuals born into a polity, this loyalty is assumed and exercised through the duties of citizenship (e.g. law abidance, taxation, military duty). Yet, citizenship is exclusionary for those aspiring to become citizens of a polity. This means that gaining membership to a polity entails fulfilling a set of conditions, which are aimed at proving an individual’s commitment to the state he or she aspires to be admitted into. These conditions stem from the normative facet of citizenship and are encapsulated in nationality laws. 

Naturalisation, or the admission of individuals into the polity, is a prerogative of the state. According to Spiro (2007: 34), naturalisation, albeit used only in exceptional circumstances, has existed in Ancient Rome, whereby citizenship could ‘be conferred on an individual for great acts in the service to the community’. Nowadays, naturalisation conditions are far more regulated, and seek to ensure the establishment of genuine ties between the individual and the polity. They often entail the individual’s physical link with the state (residence), his or her knowledge of the socio-cultural norms of the polity (language and culture tests), moral standing (proof of non-conviction), and financial sustainability (proof of income). 

Yet, citizenship by investment can be obtained with or without residence. The investment may grant the individual the right to reside in another state and acquire citizenship subject to residence and other criteria, or it may result in the outright conferral of citizenship. The former is a common practice, adopted by a number of countries worldwide including the United Kingdom, the United States, Canada, Belgium, Australia, and Singapore. These countries offer premier residence1 to investors, with the assumption that the investment will yield significant economic benefits to their country, while also creating strong links between the individual seeking to be naturalised and the state through mandatory residence. In many cases the residence requirement is the same as for ordinary naturalisation, but some countries may act on a case-to-case basis and reduce the residence requirement for investors (e.g., Austria, Belgium). By contrast, in some countries, the investment may confer citizenship upon an individual regardless of other naturalisation criteria. Although many countries have given the state authorities the discretion to naturalise individuals on grounds of cultural, economic, or other achievements, only two countries have developed detailed investor citizenship programs: Commonwealth of Dominica and St. Kitts and Nevis. In Europe, Austria and Montenegro also implement investor citizenship programs, but these are loosely regulated and thus more reliant on discretionary power of the state authorities. In none of these countries are prospective applicants bound by residence. Such a conferral of citizenship is based on the assumption that the investment in itself is a sufficient proof of an individual’s commitment to the new polity. Given the degree of discretion that governments have in deciding upon naturalisation on these grounds, citizenship by investment programs have raised numerous contentious questions, including those related to tax evasion, extradition, and corruption. 

In the context of the competitive market pressures that exist in the era of global economic interconnectedness, citizenship has become a good with which both states and investors seek to optimise their performance. According to Ong (2005: 627), ‘nation-states seeking wealth-bearing and entrepreneurial immigrants do not hesitate to adjust immigration laws to favour elite migrant subjects, especially professionals and investors’. However, there is a manifest normative tension underpinning the decision of some states to grant citizenship to investors and the objections of others to such a practice. Hence a full understanding of the different ways of regulating and practicing of investor citizenship requires an insight into the economic club good theory of citizenship (Buchanan 1965) that provides an argument for the defence of investment-based naturalisation, as well as in the sphere boundary theory (Walzer 1983) which provides a rationale for rejecting it. 

The economic club good theory of citizenship (Buchanan 1965; Frey and Eichberger 1999) offers an explanation as to why states would seek to co-opt individuals who invest money in the polity. Buchanan’s (1965: 4) theory has an economic rationale in that membership in ‘clubs’, as polities indeed behave, should be based on a cost-benefit analysis. That is, polities produce club goods for their members and should therefore select for membership those individuals whose contribution will optimize the production of club goods. According to Buchanan (1965:8), ‘[t]he bringing of additional members into the club also serves to reduce the cost that the single person will face’. This argument also explains the conditions for naturalisation, whereby an individual is often required to comply with certain pecuniary criteria so as to be allowed to become a citizen of a particular state. By contrast, those who are already members of the polity are not required to meet such criteria. The explanation of this asymmetry of the polity’s behaviour towards its members and those aspiring to that status is that only those people whose contribution can help to decrease the shared costs of membership should be naturalised. This also supports Reich’s (1991: 18) ‘idea that the citizens of a nation share responsibility for their economic wellbeing’. As the operation of markets within the polity entails transactions among individuals, companies, other states, etc., in order to maximise their economic security and performance, states seek to ensure that the naturalised individuals will pose no financial burden on their economies. 

The same rationale is used to explain why polities would facilitate the naturalisation of investors. According to Frey, ‘the optimal size of a club is reached when the marginal utility received corresponds to the marginal cost induced by an additional member’ (2000:6). In fact, the contribution to the country’s economy by the investor is disproportionately higher than the contributions of many of those who are already citizens of a given state. Since the benefits of the investment (such as the boost to the economy, opening of new jobs, etc.) vastly exceed the cost of admitting the investing individual to the ‘club’, the addition of that member would optimize or at least enhance the club’s economic performance. Yet, the economic logic behind facilitated naturalisation for investors undermines the very nature of citizenship. According to Walzer (1983), in determining their citizenship, states act as ‘clubs’, and thus have the prerogative to include or exclude prospective members according to their interest. Carens (1987) challenged this observation of Walzer’s (1983) when he claimed that by doing so, states act as enterprises rather than as public communities, thus failing to acknowledge the boundary between the public and the private spheres: ‘in the private sphere freedom of association prevails and in the public sphere equal treatment does’ (Carens 1987: 269). This implies that in deciding on their membership criteria, states are bound to treat all individuals equally. 

However, the conventional argument, also highlighted by Carens (1987; 1992) is that states have the moral obligation to treat as equals only those who are already their members. There is no obligation for states to treat those who want to naturalise equally as those who are already citizens. Yet, states do have an obligation to treat those who apply for citizenship as equals in the sense of not discriminating in morally arbitrary ways between them. Those who are non-members thus need to comply with the same set of criteria in order to become citizens. The departure from this logic, in contemporary citizenship legislation, is made through different criteria for naturalisation for certain categories of non-members, such as spouses of nationals, expatriates, recognized refugees, etc. The reason for facilitating naturalisation in these cases is premised on the assumption of their pre-existing ties with the aspired community of membership (spouses, children, expatriates), or humanitarian arguments and international legal obligations (refugees). These circumstances enable states to waive some of the criteria for admission, for instance, by reducing the residence requirement. 

A similar logic operates in waiving all other criteria in cases of naturalising individuals on grounds of national interest, or exceptional contribution to the state. The logic of equal treatment is overridden by the asymmetry of gains for the community from an individual’s membership, as outlined by Buchanan (1965). In countries that allow facilitated naturalisation on grounds of exceptional contribution to the state, rewarding such achievements is recognition of merit rather than of money or class. Naturalising investors by waiving all other criteria, however, equalises financial contribution with cultural, sports, and educational achievements. The latter are considered reputational gains ’which are not available for purchase’, and thus investment violates the sphere boundary of money (Walzer 1983: 102). The fast-track admission of investors into a polity breaks the equality principle inherent in the citizenship legislation in that only wealthy individuals are able to offer a significant contribution to the state’s economy. Thus, naturalisation of this kind gives precedence to one social class over others, breaching the sphere boundary of ‘money’ (Walzer 1983) by ‘unlocking’ blocked exchanges that limit the dominance of wealth. It reduces citizenship to a commodity that is traded for money and not for genuine ties with the state, as is the case in ordinary naturalisation. 

Moreover, the discretion in the granting of investor has caused political controversies in a number of countries. Corruption and secret deals, which have manifestly happened in cases of investor citizenship,2 violate the sphere boundary of money as ‘political power and influence cannot be bought and sold’ (Walzer 1983: 100). This fact, however, does not imply that naturalising the investor will affect political power by virtue of a single individual’s participation in the polity’s operation. Rather, the marginal influence of a single vote in a polity will be outweighed by the much stronger concern about corruption of those who have had the discretionary power to decide on the admission of such an individual.comments