Publication of Judgements

Background and Open Justice

Court judgments and tribunal decisions are important public records.

Open justice is a constitutional principle. As recognised by Lord Chief Justice Burnett of England and Wales in his September 2023 speech to the Commonwealth Judges and Magistrates Association Conference in Cardiff, Wales, this longstanding constitutional principle was “forged in a time before the use of any technology and little reporting.” With current technology, judgments can be easily and permanently accessible.

The court service publishes all written judgments by the Magistrate’s Court, Supreme Court and its Court of Appeal.

The office of the Attorney General has raised two concerns about the publication of judgment with the court service:

The publication of details of sexual offending in judgments available on the court website; and
The propriety of publishing judgments from the criminal courts beyond the length of the statutory rehabilitation period for the relevant offence.

The Judiciary of the Falkland Islands is of the view that all decisions of the courts, including the decisions and sentencing remarks of the Magistrate’s Court, should be published. Reference is made to the dictum of Lady Hale, President of the Supreme Court of England and Wales in Cape Intermediate Holdings Ltd. v Dring [2019] UKSC 38 on open justice where she states

the constitutional principle of open justice applies to all courts and tribunals exercising the judicial power of the state. It follows that, unless inconsistent with statute or the rules of court, all courts and tribunals have an inherent jurisdiction to determine what that principle requires in terms of access to documents … It is not correct to talk in terms of limits to the court’s jurisdiction when what is in fact in question is how that jurisdiction should be exercised in the particular case. (para 41).

Publication of Judgements Quicklinks

Personal Data

Judgments contain information about people. This typically includes the names of parties and other people mentioned in the judgment, as well as the representatives, and the names of the judges hearing the case. The information about people varies and can be very extensive. It can include a variety of types of special category personal data, depending on the subject matter of the case. The details given in a judgment about the facts of a case may sometimes constitute distressing content particularly in criminal cases, or cases involving children.

The Judiciary is sensitive to this fact. Judgments and sentencing remarks are written in a way to fully capture the circumstances of an offence but without descending into salacious descriptions.

The courts are not subject to the FIG data policy when acting in their judicial capacity, however prior to publication, the Judiciary will anonymise any judgment in accordance with any statutory provisions^[3], or orders of the court relating to anonymity or protected information. Lord Chief Justice Burnett recognised that “[p]roceedings may remain open and be reported even when there is anonymisation of parties or witnesses.”

The court service does not have the capacity to restrict access to published judgments to certain members of the public.

Policy

All written judgments and sentencing remarks by any court or tribunal of the Falkland Islands will be published on the court website. Each judgment will be anonymised in terms the court service acting on the advice of the Magistrate or Judge deems necessary and/or in accordance with statutory provisions. This anonymisation exercise will be done on a case-by-case basis.

Criminal Matters – Supreme Court and Magistrate’s Court

Sentencing remarks at first instance will be published until the offence will be deemed spent pursuant to Schedule 10 of the Criminal Procedure and Evidence Ordinance 2014 at the time the offence is committed. The date of deletion of the remarks will be included on the cover page of the remarks. If these remarks are to be published beyond the statutory rehabilitation period as, in the view of the court, the remarks contain dictum on a principle of law or are of general public importance, this will be indicated on the cover sheet to the sentencing remarks. Appeals against sentence to the Supreme Court will not be subject to this policy.
In the event a judgment at first instance acquits the defendant, this will be published for three months. The date of deletion of the decision will be included on the cover page of the decision. This policy will not apply to any appellate decision.

Criminal Matters – Summary Court

The decisions of the Summary Court will be published as text on the website the week in which the decision is handed down and will be deleted by the end of the following week.

Civil and Family Matters

Decisions of the Magistrate’s Court, Supreme Court and Court of Appeal will be published indefinitely. Any objection to the publication will be considered on a case-by-case basis.
Matters containing sensitive matters will be anonymised in the discretion of the judge.
Decisions of the Summary Court will be published on the website the week the decision is handed down and will be deleted by the end of the following week.

Coroner’s Matters

Factual Findings and Conclusions will be published indefinitely. Any objection to the publication will be considered on a case-by-case basis.

Cover Page of judgments

All published decisions should include the cover page which shall state the end publishing date.

For more information, please contact
the Courts & Tribunals Department

You’ll find our office hours, location, and full contact details below.