John Gailey of Advanced Recognition Ltd, Member Scottish GroupCommittee & John Sibbald of Professional Library Services, Chairman of theScottish Group consider the new Scottish Court Web site (www.scotcourts.gov.uk),launched on 24 February, which marked a milestone in the justice system not onlyfor Scotland but for the United Kingdom as a whole. The authors review the siteand look at some of the implications for the legal profession and the public.
Both authors, whose recollections go back to the heady days of persuadinglawyers of the merits of Eurolex, have long been interested in the full-textretrieval of sources of law through the use of technology. Both authors weretherefore delighted to see that the Scottish Courts Web site was not only makingcases available but was also allowing users to access material via a searchablefront-end and, as importantly, was making this important source of law freelyavailable to the public and their legal advisors.
Background
The Scottish Group first raised the issue of the Internet publication of thejudgments in June 1987 with Henry McLeish, then Minister for Home Affairs andDevolution, and subsequently with Scottish Court Service and the Lord President.
At one time, it looked as though publication of these materials might beundertaken on behalf of the Scottish Courts – firstly by the Faculty ofAdvocates and then by the Scottish Council of Law Reporting. In both cases, theproposals for public access fell far short of what the Society for Computers& Law would see as amounting to ‘intelligible’ provision, in that thematerials would not have been provided with a searching facility. It was alsoproposed to make them available for only a very short period, beforetransferring them to subscription-based access. The need for both of theseproposals to generate income was not in itself a matter of concern to theSociety. What concerned the Society was that, if either of these optionsmaterialised, then there seemed little likelihood of the courts undertaking thefurther and free provision of these materials on a Web site of its own. As a wayforward, the Society offered in January 1998 to undertake the free provision ofthese materials on its own Web site.
The Society’s Scottish Group, with the support of the Law Schools and otherorganisations, devoted a considerable effort during the Spring and Summer of1998 to trying to encourage a better provision of these materials on theInternet. The return of the project into the hands of the Scottish Court Servicein the Autumn of that year was widely welcomed.
The Society sees it as most important that these materials are beingpublished by the courts as the issuing authority without the intervention of athird party. It sees the courts as fulfilling a duty to promulgate thesematerials which, until the availability of the Internet, it could hardly haveundertaken.
That is not say that SCL is against these materials being available on thesame basis to commercial publishers. ‘Provision of all the law on a freelyavailable basis will not displace, or remove the activities of commercial andother traditional law reporting organisations and publishers.1Rather, SCL believes that such publishers are called upon to provide ‘addedvalue’ in the form of new ways of referencing and accessing such materials.
The Site
On accessing the site, users are able to have a run down of the Scottishjudicial scene, with listings of judges and descriptions of the business coveredby the various courts, all as a bonne bouche, fine tuning the palate to thedelectable feast of information lurking behind the ‘COURT OPINIONS’ listing.This appears at the bottom of every court section, in addition to which it isclearly obvious in the lefthand panel on screen.
There are two main methods of accessing the opinions:
Structured Searching
In the structured search mode (backed up by an extremely informative helppage), users can select from a number of fields to set up a search includingparameters such as the date (with ‘To’ and ‘From’ options allowing arange to be set), Judge, Pursuer/Appellant and Defender/Respondent. These areall free-text fields, allowing the user to type quite freely.
Interestingly, the selections also allow for ‘type of action’ which isset up as a thoughtfully implemented ‘pick list’, covering categories from‘Administrative Law’ to ‘Unjust Enrichment’. Needless to say, curiositydemanded a search of the latter and there are, indeed, cases under this categoryalready on the system!
Scottish Court Service, the Executive Agency responsible for providingservices in the Supreme and Sheriff Courts, is to be applauded most heartily forthis simple, yet major step – the ability for a practitioner relativelyunfamiliar with the trials and tribulations of full-text searching to be able toselect cases by type. Even though a regular and practised user of Lexis (able tosearch freely without a care for the search fees and time on line clocking up),on occasion John Gailey would admit to still having found it very difficult tofind what he was looking for, due to the delightful vagaries of judicialexpression and the shockingly imprecise nature of the English language.
In this context, it was extremely valuable for unreported cases to haveheadnotes, which the Scottish cases did on Lexis, where the categorisation andlanguage used was regularised so that if you scanned the headnotes forconveyancing, you were reasonably certain of what you’d find. In the same way,it’s extremely valuable to have a layer of categorisation applied to these new(otherwise unreported) cases which will allow users to pick up cases withreasonable certainty. In due course, as the archive of unreported casesincreases on the Scottish Courts Web site (mercifully, plans to remove casesafter a year appear to have been dropped), it may become useful to have someform of headnoting. It may be that the judges should prepare forms of headnotesfor their own opinions as recommended by the Australian Institute of JudicialAdministration and AustLII 2 and as has also beensuggested by Lord Penrose.3 The final field in thestructured search section is ‘type of opinion’
Keyword Searching
The full-text ‘engine’ driving the keyword facility is Muscat.4This was originally developed in Cambridge for academic usage (MUSeum CATalogue)and was characterised by its search speed and flexibility. It was extremelyimpressive then and was particularly well suited to Internet/Intranetapplications as it can rapidly generate its search results as an interactive webpage.
As used behind the Scottish Courts site, it offers a reasonable range ofsearch connectors (AND; NOT; OR) and fans of Boolean logic will be delighted tolearn that it is possible to pair searches such as: (duty and care) or (contributoryand negligence) – eg find me cases which contain either both the words‘duty’ and ‘care’, or both the words ‘contributory’ and‘negligence.’
Interestingly, the search engine automatically ‘stems’ words so that asearch for ‘technology’ will pick up ‘technologies.’ It uses a blend oftechnologies (trigrammatic artificial intelligence), rather than relying oncheap tricks, such as always adding ‘s’ onto the end of words which willonly trap basic plurals as distinct from covering the full range of linguisticpossibilities. In practice, it works very well and is much easier to use withconfidence than a strict Boolean engine where a search for ‘contract’ willonly find ‘c-o-n-t-r-a-c-t’, not ‘contracts’ or even ‘contractual’or (heaven forfend) any mis-spellings.
Having carried out a search (eg (duty and care) or (contributoryand negligence) the user is presented with a list of the search results(listed in date order), showing the case name, judge and date of judgment foreach case. The name is highlighted and leads straight on to the full text (hint– use the ‘select all’ function in your browser (Control + A) to captureall the text which can be copied to the clipboard (Control + C) and then pastedinto whichever text processor you fancy for leisurely off-line perusal. You caneven put the text into your own in-house Intranet know-how software or evenprint it out.
One feature of many searchable databases is on-screen highlighting of thetext which has caused the data to be selected by the search engine. This is nota feature of the database, but at least the search result listing reveals ascore (shown as a percentage) and which text has been found. In this way, it ispossible to see that a search resulted in some of the cases containing all ofthe search terms employed (eg they referred not only to ‘duty of care’ butalso ‘contributory negligence’), whilst others only contained some of theterms, perhaps indicating that they would be less useful to the searcher.
To search for text within an individual judgement, you can always use the‘Find’ function within your web browser (Control + F), which pops up a boxfor you to type in a word or phrase and it will then allow you to ‘hop’through the text, bounding from term to term, highlighting as it goes.
Endnotes
The authors are most grateful to Michael Ewart, Chief Executive of ScottishCourt Service and to David Morris, SCS Information Services Manager forinformation about the Web site. The views expressed in the article are theresponsibility of the authors.
1. Crown Copyright Consultation: SCL Response7.1 in Computers & Law 1998 vol 9, no 1.
2. Mowbray, King, & Greenleaf. Law on the Net viaAustLII (Paper prepared for the SCL Conference ‘Internet, Intranets &Law 97.’ London, 13-14 March 1997), p 18.
3. Judicial Requirements of an Integrated I.T. System(unpublished) 1998, p 11.
5. Information from Laurie West-Knight’s Web site Lawonline:www.lawonline.cc.
6. Crown Copyright Consultation: SCL response 2.6 in Computers& Law 1998, vol 9, no 1.
7. ibid.
8. Preface to civil.justice: resolving and avoidingdisputes in the Information Age. 1998
9. civil.justice: The SCL Response H.2 & 3 inComputers & Law 1998, vol 9, no 5.
10. Susskind. The Future of Law. Clarendon Press,1998 pp 35 ff.
11. Government. direct: SCL’s Response to GreenPaper 3.4 in Computers & Law 1997, vol 7, no 6.
12. cf. Shaping Scotland’s Parliament: Report of theConsultative Steering Group on the Scottish Parliament. HMSO 1999, ss3:6:20-23 & Annex D, s 34 (also available from: www.scottish-devolution.org.uk/frame.htm).
13. The commitment from the start to both of these aims byScottish Court Service is clearly stated in the project initiation documents.
Content
At the time of writing (16 May 1999), the database contains some 189 Court ofSession Civil cases, 52 Commercial and 136 Criminal appeals, with the mostrecent cases listed with opinions delivered on 14 May so that the database’sintent to load cases online from 14:00 on the day they are delivered seems to beholding up well.
Some comparison with the position in the English jurisdiction, where there isno overall policy of publication, may be interesting. The House of Lords, whichwas the first court to put its judgments (or more correctly speeches) on the netin November 1996, publishes all decisions in fully ‘free text’ searchableformat within two hours of delivery. Elsewhere, the position is more uneven,appearing to be dependent on the court or possibly on the enthusiasm ofindividual judges. The Civil Division of the Court of Appeal now has just over20 cases available and the Criminal Division has 7. Transcripts (more than20,0000) from both Divisions are freely available from the shorthand writersSmith Bernal from April 1996, but can only be searched by reference to casename, number or date. As from January 1999, this service has been frozen. Accessto current transcripts will now be via Smith Bernal’s Castetrack service towhich free-text searching is being added. Access will be at no charge formembers of the public or non-profit making bodies, but barristers and solicitorswill have to pay. With regard to first instance cases, the Divisional Court(Crown Office) has 2, the Queen’s Bench Division, 4, Chancery Division, 9, thePatents Court site 60, the Companies Court 2, and the OfficialReferees/Technology and Construction Court over 50. The Commercial Courtprovides only an index of unreported judgments.5
As well as providing information and explanations in accessible languageabout the business of the courts, the personnel, a map of the Sheriff Court(along with addresses and contact numbers), the site also includes the Rules ofCourt. (Practice Directions would be a useful addition.) There are a number ofInformation Documents and Leaflets, some of which can be downloaded Theseinclude The Statement of Charter Standards, Do it yourself divorce,Information for potential jurors, Small Claims in the Sheriff Court andsimilar leaflets designed to help the public understand the role and function ofthe Courts. The site encourages feedback by those visiting.
The development of this site is significant from a number of points of view,discussed below.
Access to Law
SCL believes ‘The State has a duty to make available to the citizen the lawof the land, of which he is deemed cognisant, in a manner which is free andintelligible’.6 All citizens are implicitlyrequired to know the law which regulates their lives. Ignorance of that law isheld to be no excuse. Hitherto, the public was virtually excluded from thissource of law, unless their local library provided access to the few opinionsselected for inclusion in the law reports. Given the time lag in reporting, thepublic certainly had no access to these materials as a source of ‘current’law.
The position has often not been much better for their professional advisers.While Scottish unreported judgments have been available on Lexis since 1981, fewsmall firms (or even those of medium size, let alone the large number of solepractitioners) have felt able to afford the subscriptions to this service.Unless the practice was in Edinburgh, these materials have been difficult toidentify and obtain from other sources. In Edinburgh, members of the Faculty ofAdvocates have had access via the Advocates Library, where the unreportedjudgments have been available since the late 1970s in hard copy and in morerecent years in digital form via a searchable database. Unreported judgments arealso supplied to the libraries of the SSC and WS Societies: the former providesa database index searchable by party, judge, date, keyword, etc and the latter acard index.
Now, all those appearing on behalf of clients in any court throughoutScotland, or those advising them such as Citizens Advice Bureaux, can have equalaccess to this source of law and can compete on a more level playing field withpractitioners who have enjoyed more privileged access because of their locationin Edinburgh. Lower courts which are bound by these decisions have often had toproceed without reference to this material. Ready access to recent decisionsmight have prevented unnecessary appeals being transmitted from the lower to thesuperior courts. Sheriff Courts and other tribunals, as a result of rollingprogramme of computer and communication networks, will now have instant accessto the recent decisions with resulting benefits to those seeking remedies intheir courts as well as to the costs of the administration of justice. Thepublic should enjoy greater confidence in their legal advisers and in thejustice system in the knowledge that they can now access the current decisionsof the courts.
Teachers of law and students will also benefit from this development ashitherto they too have had to rely on expensive systems such as Lexis to accessthese materials. The provision of the service should, taken in conjunction withthe provision of other useful Internet provision (eg Registers Direct,Solicitors Property sites, Scottish National Archive Network , etc) provide afurther stimulus to the take up of technology by those in the profession whocontinue to remain on the sidelines.
Marketing the Scottish Legal System
The increasing globalisation of the legal market makes it imperative thatlegal systems participate on the Web. Hitherto, apart from House of Lordsjudgments and recent legislation, there has been no Scots law on the net andlittle information about the Scottish Legal System. The publication of thejudgments, along with other information about the courts, has changed this at astroke. Those searching on the net for remedies to their legal problems will nowbe able to assess the likelihood of their resolution by the Scottish LegalSystem and learn something of the advantages offered, for example, by theprocedure in the Scottish Commercial Court. This applies as much to the peopleof Scotland as those searching abroad. Furthermore, there can be no doubt that,by participating in a global market, the Scottish legal system will not onlyavoid atrophying but be enriched by contacts with other legal systems.
A More Just Society
But there is more to the provision of these materials than just improvingaccess or the administration of justice. The Society’s position is that‘…the citizen has the right to have his legal problems resolved atreasonable cost. Part of that involves the basic sources of law being freely andintelligibly available to those who may advise him (CABx, law Centres,solicitors, barristers and advocates). Such provision affords not only theproverbial ‘‘level playing field’’ as between citizen and state, butalso makes for a more just and humane society.7
The provision of such materials, now made possible by the Internet, will, asstated in civil.justice, contribute to ‘encourage and enable greateraccess to justice and, in turn, a more just society where legal remedies andguidance are far more widely available 8 or, as theSCL response to civil.justice puts it, bring ‘Greater public awarenessof the law, legal rights and legal responsibilities. As a result, the potentialfor a higher incidence of dispute avoidance and early dispute resolution. 9The publication of Scottish judgments is also another step in rectifying whatRichard Susskind describes as ‘The alienation of the law’ from the citizenas as well as from ‘the business world, from lawyers themselves and so fromsociety generally.10
Endnotes
The authors are most grateful to Michael Ewart, Chief Executive of ScottishCourt Service and to David Morris, SCS Information Services Manager forinformation about the Web site. The views expressed in the article are theresponsibility of the authors.
1. Crown Copyright Consultation: SCL Response7.1 in Computers & Law 1998 vol 9, no 1.
2. Mowbray, King, & Greenleaf. Law on the Net viaAustLII (Paper prepared for the SCL Conference ‘Internet, Intranets &Law 97.’ London, 13-14 March 1997), p 18.
3. Judicial Requirements of an Integrated I.T. System(unpublished) 1998, p 11.
5. Information from Laurie West-Knight’s Web site Lawonline:www.lawonline.cc.
6. Crown Copyright Consultation: SCL response 2.6 in Computers& Law 1998, vol 9, no 1.
7. ibid.
8. Preface to civil.justice: resolving and avoidingdisputes in the Information Age. 1998
9. civil.justice: The SCL Response H.2 & 3 inComputers & Law 1998, vol 9, no 5.
10. Susskind. The Future of Law. Clarendon Press,1998 pp 35 ff.
11. Government. direct: SCL’s Response to GreenPaper 3.4 in Computers & Law 1997, vol 7, no 6.
12. cf. Shaping Scotland’s Parliament: Report of theConsultative Steering Group on the Scottish Parliament. HMSO 1999, ss3:6:20-23 & Annex D, s 34 (also available from: www.scottish-devolution.org.uk/frame.htm).
13. The commitment from the start to both of these aims byScottish Court Service is clearly stated in the project initiation documents.
Hypertext Linking
The Society believes that the long term aim is ‘that there should be madeavailable…the whole body of UK law…fully searchable and hyperlinked asbetween respective databases in an HTML format, free of charge at the point ofuse.11 In that the citations in the opinions on theScottish Court Web site cannot be linked to their sources, since the sources arenot available in digital format, the provision still falls short of theSociety’s aim. It is of the utmost importance that the new ScottishParliament, which has given early indications that it intends to harness thepower of modern technology,12 addresses the issueof creating, maintaining and disseminating law in digital form. To achieve thissuccessfully , it will also have to radically improve on existing digitalsources of current law. It could do no better than to look to the achievement ofthe AustlII which has successfully set a standard for other nations to follow.
Response to the Site
Responses to the site across the board have been extremely positive. Averagedaily hits amount to 2,500 by some 250 users. The average session length is 56minutes. The main point of access is the Welcome Page (44%) but a significantnumber have marked the Opinions pages and enter directly there (12%). (Theopening page of the Scottish Home Page on the SCL Web site carries a direct linkto the Opinions pages). The Opinions page is the main exit point with about 40%of users exiting the site from there. The majority of users are UK based, withthe USA, Australia, Canada and New Zealand being the other major users. Accesshas also been recorded from most other European countries including one from theVatican (some homesick seminarist at the Scots College, perhaps).
Further Developments
A Web editors group has been established within the Scottish Court Service toensure protocols for ongoing development. It is hoped that by the time thisarticle appears, the site will be providing the text of significant judgmentsfrom the Sheriff Courts and the findings of significant Fatal AccidentInquiries. These will provide the same sort of searching facilities as theOpinions of the Supreme Courts. The addition of the Rolls of Court (Daily Lists)is also imminent This follows an experiment in which the Rolls have been emailedon a regular basis to a trial group of over 50 contacts. The new Web-based Rollswill be free of charge (a significant saving of cost to the court practitioner).It will also mean that the Rolls will be readily available to a wider groupoutwith the bounds of Edinburgh.
Through its participation in ISCJIS (Integration of Scottish Criminal JusticeInformation Systems), the Scottish Court Service is hoping to contribute to thedevelopment of a Web-based criminal justice information facility. This isplanned to contain information about the Statute Law Database, training materialfrom the Police Service, case details from the courts and possibly othercommercially available information to create a shared resource for the variousbodies involved in the Scottish criminal justice system.
Work has also been undertaken on trying to standardise the format ofjudgments now that they are appearing on the net and deal with the problem ofinformation that a searcher requires at the onset and which was traditionallyplaced on the ‘backing’ of the judgment. The development of a standardsystem of paragraph referencing and the provision of a layman’s summarieswould be further useful additions.
Conclusion
Scottish Court Service is to be warmly congratulated on undertaking theprovision of this site which not only will benefit the administration of justicebut improve public access to law.13 Scotland hasbecome the first UK jurisdiction to adopt an overall approach to the Internetpublication of these materials. It reflects the dynamic and ever increasingcommitment on the part of Scotland’s institutions, both public and private, tothe use of modern methods of technology and communication. Current newdevelopments indicate that the site is set to play an increasingly importantrole on the Scottish scene. The site will also provide a standard for otherjurisdictions, not least within the UK. Scottish Court Service has been kindenough to acknowledge the value of the Society’s campaign for this provision,and the Scottish Group is grateful for the opportunities provided by SCS forcomment on various matters connected with the development of the site.
Endnotes
The authors are most grateful to Michael Ewart, Chief Executive of ScottishCourt Service and to David Morris, SCS Information Services Manager forinformation about the Web site. The views expressed in the article are theresponsibility of the authors.
1. Crown Copyright Consultation: SCL Response7.1 in Computers & Law 1998 vol 9, no 1.
2. Mowbray, King, & Greenleaf. Law on the Net viaAustLII (Paper prepared for the SCL Conference ‘Internet, Intranets &Law 97.’ London, 13-14 March 1997), p 18.
3. Judicial Requirements of an Integrated I.T. System(unpublished) 1998, p 11.
5. Information from Laurie West-Knight’s Web site Lawonline:www.lawonline.cc.
6. Crown Copyright Consultation: SCL response 2.6 in Computers& Law 1998, vol 9, no 1.
7. ibid.
8. Preface to civil.justice: resolving and avoidingdisputes in the Information Age. 1998
9. civil.justice: The SCL Response H.2 & 3 inComputers & Law 1998, vol 9, no 5.
10. Susskind. The Future of Law. Clarendon Press,1998 pp 35 ff.
11. Government. direct: SCL’s Response to GreenPaper 3.4 in Computers & Law 1997, vol 7, no 6.
12. cf. Shaping Scotland’s Parliament: Report of theConsultative Steering Group on the Scottish Parliament. HMSO 1999, ss3:6:20-23 & Annex D, s 34 (also available from: www.scottish-devolution.org.uk/frame.htm).
13. The commitment from the start to both of these aims byScottish Court Service is clearly stated in the project initiation documents.
