Digital recording of FTT proceedings

The request was partially successful.

Dear Her Majesty's Courts and Tribunals Service,

Paragraph 18 of MC v SSWP and TM (CSM)[2020] UKUT 157 (AAC) reads:

“18. The absence of a statement of reasons would normally put an applicant for permission to appeal in a very difficult position, given the need to identify an arguable error of law on the part of the FTT. However, in the present case the digital record of proceedings was available. I was able to satisfy myself on two points as a result of listening to the digital recording of the hearing.”

https://assets.publishing.service.gov.uk...

1. Please provide all information relating to the use of digital recording of FTT proceedings in the Social Entitlement Chamber and a tribunal participant's right to get a copy of the recording.

I'm particularly interested in information on what determines whether a digital recording is made/not made, the length of time recordings are held, the procedure for obtaining a copy and the cost involved. Can poor folk get help with the cost?

2. Please provide a copy of any form used to obtain a copy of the digital recording.

3. Please provide the number of requests (i) received and (ii) complied with for digital recordings relating to proceedings in the Social Entitlement Chamber in the year 2018/19.

Yours faithfully,

J Roberts

Disclosure Team, HM Courts and Tribunals Service

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SW Region Support, HM Courts and Tribunals Service

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NBC.KILO, HM Courts and Tribunals Service

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Dear J Roberts

 

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J Roberts left an annotation ()

'B2 – Transcription Companies authorised to provide transcripts of proceedings other than in the Crown Court

The price shown is the cost per folio. A folio consists of 72 words. The total cost of the transcript will be the number of folios multiplied by the price show.'

To get a transcript within 48 hours, a folio will set you back between £1.27 and £2.30.

If you can wait 12 working days, however, the price of a folio falls to between £0.74 and £1.67.

Companies providing the service: Ubiquis, Epiq, Auscript, Martin Walsh Cherer, The Transcription Agency and Opus 2.

https://assets.publishing.service.gov.uk...

J Roberts left an annotation ()

Something related to digital recordings in the UT that may be of interest:

Appeal Nos.: GIA/440/2019

https://assets.publishing.service.gov.uk...

'46. ...First, he seeks an electronic recording in relation to the earlier appeal heard by Judge Wright in September 2018. Although Judge Wright directed that this be done, it later transpired (as I understand it) that HMCTS do not have the technical ability to separate a recording of the applicant’s hearing from others that were in Judge Wright’s list on the same day.'

The lack of technical ability is bad news.

J Roberts left an annotation ()

A lot of useful information on audio recordings of proceedings is available in decision [2020] UKUT 260 (AAC):

'56. The Appellant ' appears to be under the misapprehension that it is his entitlement to have free of charge both a transcript of, and a copy of the digital recording of, any First-tier Tribunal oral hearingin which he participates.Nothing could be further from the truth.'

57. At this juncture,several general observations are in order. First, there is no automatic right under the European Convention on Human Rights (ECHR) to a copy of a transcript of a tribunal hearing. Nor does the Human Rights Act 1998 provide any such right. Moreover, and perhaps somewhat remarkably, there is no statutory requirement on the First-tier Tribunal even to maintain a record of proceedings, whether digital, audio or handwritten. The Tribunals, Courts and Enforcement Act 2007 is entirely silent on the matter, as are the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009. There is no Practice Direction or Practice Statement that governs the position in the GRC (contra the position in the Social Entitlement Chamberof the FTT). The most that canperhapsbe said is that the Judge is undera duty to take a note of the evidence (see Houston v Lightwater Farms Ltd[1990] ICR 502 at 507, where it was held that a chairman of what was then an industrial (now an employment) tribunal “as a judge, hasin our judgment a judicial duty to make some note of the proceedings before him, including the evidence, for the assistance of an appellate court in the event of an appeal”).'

https://assets.publishing.service.gov.uk...

J Roberts left an annotation ()

Scottish Legal News:

'Sheriff Appeal Court refuses to release expert witness evidence recording to medical negligence pursuer

In her decision, Sheriff Principal Anwar, who noted the “unusual” nature of the motion, said generally: “In my judgment, there must be a cogent, reasonable and objectively demonstrable basis for an assertion that a transcript of proceedings is incorrect. That is particularly so when there is no obvious or material discrepancy between the contents of the transcript and the summary of the evidence contained in the sheriff’s note.” '

https://www.scottishlegal.com/article/sh...

[2021]SAC (Civ) 19AYR-A156-15

https://www.scotcourts.gov.uk/docs/defau...

[7] The appellant explained that he did not recognise many of the statements attributed to his expert witness. It was his position that there were serious omissions and errors in both the sheriff’s note and the transcript.

[9] This is an unusual motion. The court was invited to grant access to a digital recording of proceedings on the basis that the transcript produced was incorrect, incomplete or misleading. Neither party referred the court to any authority which might inform the approach to be taken by the court to this motion. I am not aware of any prior judicial consideration of the issues.

J Roberts left an annotation ()

Judge Poynter refers to problems arising because FTT hearings are not routinely recorded:

RT v Secretary of State for Work and Pensions (PIP) [2019] UKUT 207 (AAC)
https://www.bailii.org/uk/cases/UKUT/AAC...

'5. I recommend that, if practicable, an official recording should be made of the rehearing of this appeal.

22. Those problems would not arise if, as is the case for virtually all other judicial proceedings, hearings before the Social Entitlement Chamber were routinely recorded.

23. In this appeal, however, I do not have to decide whether the procedure followed during the hearing was fair. That is because, given the medical evidence, the Tribunal made a more fundamental error of law before the hearing had even begun.'

J E Garner left an annotation ()

As well as Judges/Chairman's of Tribunals duty to keep a record of the proceedings see following Lord Thomas' High Court case law on the subject:
http://www.bailii.org/ew/cases/EWHC/Admi...
Where there is a dispute over what was said, and where a Tribunal is NOT recorded you can obtain the hand written notes:
See Para 22 & 23
It may be that the Board has failed to distinguish between the notes of the chair which constitute the record of the proceedings and the notes made by the chair or other panel member during the hearing as part of their preparation for reaching a reasoned decision. As Ralph Gibson LJ pointed out, the chair makes a note of the evidence and the proceedings. That part of the note constitutes the record of the proceedings in the way in which the note of the county court judge constituted the record of the evidence and proceedings in the long history of the county courts before those courts were supplied with audio recording equipment: see also Greene v Half Moon Bay Hotel [2009] UKPC 23 at paragraphs 9-10. Similarly in the Tribunals where there is no audio recording, the note of the Chairman constitutes the record: see the decision of Judge Hickinbottom, Chief Commissioner, (as he then was) in R(DLA) 3/08.
The notes constituting the record are quite distinct from notes taken by the chair for his or her own use or notes made by a judge or chair where there "is" (emphasis) an audio or visual recording of the proceedings. Such notes do not constitute the record. Nor do they constitute personal data. They are made by the judge or chair or panel member solely for the purpose of assisting in and in preparation for the reaching of the reasoned decision; they are not a record of the proceedings. Their absolute confidentiality is integral to the independent and impartial decision making function of a judge or tribunal or panel member and the proper administration of justice. They are in effect notes made for the preparation of the judgment. They are no different to a preliminary draft of a judgment. If such notes are held by an administrative officer or on a computer system operated by an administrative body for the judge, tribunal or panel member, they are held on behalf of the judge, tribunal or panel member and remain under the sole control of the judge, tribunal or panel member. No person has a right of access to them. They must never be disclosed or provided to any person.
29 & 30:
Declining to make the note by way of record available

It happens from time to time, though infrequently, that in a tribunal where there is no visual or audio recording of the proceedings there may be a dispute as to what a witness has said. That is often resolved by the judge or chair looking at his or her own notes in the light of the notes made by others at the hearing and reaching agreement. In the present case the solicitor for the claimant sought no more than the resolution of such a dispute.
It is, perhaps, most unfortunate that the dispute was not resolved by the chair looking at his or her own note in the light of the observations of the claimant's solicitor and her note. In the event that the notes could not be reconciled by the chair, or the chair considering his or her own notes to be accurate, the notes of the chair as the record would prevail and be made available, if necessary, as the record for use in the further proceedings. The claimant's solicitor was entitled to have the point on the accuracy of the summary in the decision letter considered and it should have been resolved in this way. It would have taken little time and avoided these proceedings.
Finally at 34:
It would plainly be a wholly disproportionate burden for the notes by way of record to be transcribed and/or made available after each hearing. The circumstances in which it will be necessary to examine the notes by way of record and thereafter to make them available will be very infrequent. We would hope those circumstances would be obvious – the most common is likely to be a dispute over what was said in evidence either for the purposes of a judicial review or for use of the evidence in a further hearing before another panel of the Parole Board. When such a dispute arises, we would hope it will always be resolved in the pragmatic manner we have suggested at paragraph 30 without the need for the Parole Board to formulate policies or lay down guidance.
So in other words if your hearing is not recorded you can obtain a copy of the Judge/Chairman's notes according to this case law precedent.

J Roberts left an annotation ()

Thanks for your comment. Paragraphs 34 and 30 stand out for me:

'34. When such a dispute arises, we would hope it will always be resolved in the pragmatic manner we have suggested at paragraph 30 without the need for the Parole Board to formulate policies or lay down guidance.

30. It is, perhaps, most unfortunate that the dispute was not resolved by the chair looking at his or her own note in the light of the observations of the claimant's solicitor and her note. In the event that the notes could not be reconciled by the chair, or the chair considering his or her own notes to be accurate, the notes of the chair as the record would prevail and be made available, if necessary, as the record for use in the further proceedings. The claimant's solicitor was entitled to have the point on the accuracy of the summary in the decision letter considered and it should have been resolved in this way. It would have taken little time and avoided these proceedings.'

It is normal for a chair to make two sets of notes:

'22. It may be that the Board has failed to distinguish between [1] the notes of the chair which constitute the record of the proceedings and [2] the notes made by the chair or other panel member during the hearing as part of their preparation for reaching a reasoned decision.' (I have added the numbers in parenthesis)

Let's assume that [2] confirm the observations of a claimant's solicitor and [1] do not. Lets also assume that after checking their notes [2], the chair mistakenly claimed they reflected [1]. Would this not mean that the solicitor could not get to see [2]?

J E Garner left an annotation ()

J Roberts
Thank you for your interesting observations.
The Chair/Judge only makes one set of Notes.

If the hearing is being recorded, then the notes are minimal and could effectively be written on the back of a fag packet, as nobody would ever be allowed to see them, they are his/her own personal notes and observations for him/her to reach a decision.

Whereas if the hearing is NOT recorded, his/her notes become the record of the proceedings.

However in this case, if his/her notes differed from the Solicitor's notes, it would appear that the Judges' notes would take precedent, if anybody considered them right or wrong, in which case an Appeal would be required.
It is assumed Judges never get anything wrong......

J Roberts left an annotation ()

In EL-HUSEINI v GMC [2021] EWHC 2022 (Admin) Judge Jacobs alerts us to the possibility of an appellant granted permission to audio record having that permission withdrawn at the substantive hearing:

'53. Dr El-Huseini was permitted to have one other person to assist him. The GMC was only permitted one person in court, with any other interested parties attending remotely. A large court room was made available. Dr El-Huseini was permitted to make his own audio recording of the proceedings, subject to various conditions and subject also to the possibility that the judge hearing the substantive appeal might withdraw that permission. (I did not withdraw that permission).'

https://www.bailii.org/ew/cases/EWHC/Adm...

(The appellant walked out of court (para 65) and his appeal was dismissed.)

J Roberts left an annotation ()

The Gazette:

'Other recommendations include exploring AI-powered transcription to reduce the cost of court transcripts, enabling magistrates’ sentencing remarks to be recorded and transcribed on request, and reviewing existing contracts to ensure transcripts are more accessible to journalists and the public.'

https://www.lawgazette.co.uk/news/improv...

Open justice: court reporting in the digital age

Date Published: 1 November 2022

https://publications.parliament.uk/pa/cm...

J Roberts left an annotation ()

The Gazette:

'Some of the recommendations could be implemented quickly.

Every court, for instance, should publish an email address on its website to enable the media and public to request access to remote hearings.

HM Courts & Tribunals Service should provide regional communication and information officers whom journalists and the public can contact with access enquiries or to complain.
...

The Ministry of Justice should consider expanding its proposed digital portal for court and tribunal lists to include case outcomes, reporting restrictions and court documents, modelled on the US-based Public Access to Court Electronic Records.
...

The MoJ can look to Australia where, APPEAL points out, many courts, including the Federal Court of Australia, use automated speech-to-text technology.'

https://www.lawgazette.co.uk/news-focus/...