A controversial policy of destroying recordings of trials after seven years is to be abandoned, the Ministry of Justice (MoJ) has disclosed.
The policy, affecting courts in England and Wales, had been heavily criticised by lawyers and miscarriage of justice campaigners, who said the destruction of court records makes challenging a conviction almost impossible.
They point to cases like Omar Benguit – now the subject of a BBC Panorama investigation – where vital court records were erased.
Benguit’s legal team claim the transcripts from his three trials would have provided invaluable evidence for an appeal – but all were destroyed before they could be examined.
As a journalism lecturer carrying out research into court reporting, as well as miscarriages of justice, I was keen to investigate, and requested more information from the MoJ through Freedom of Information requests.
In its responses to me, the MoJ publicly disclosed for the first time that trial records will now be kept for at least as long as the prison sentence – and possibly indefinitely.
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An MoJ spokesperson said: “This updated policy safeguards continued access to court records for the purpose of appeals, reviews or any other legal proceedings that may arise during the entire period of the sentence.
“Retaining records for the full length of the sentence preserves judicial integrity, and protects the rights of all parties concerned.”
Campaigners who fought for years to halt the policy of destroying court records have welcomed the announcement. Jon Robins, a lecturer at Brighton University and co-organiser of the Open Justice Charter, told me:
This is a sensible result – and a surprising and belated victory for our campaign. We pointed out more than a decade ago that there was no possible justification for such a draconian destruction policy, ever since our courts were dragged into the digital era and began recording proceedings – other than closing off the prospect of challenges from those claiming to be wrongly convicted.
The unnecessary loss of court documents – especially, court transcripts and the audio recordings of court proceedings – has often proved an insurmountable barrier in the investigation of miscarriage of justice cases.
The official guidance for how long records should be retained is set out in the crown court’s Record Retention and Disposition Schedule (RRDS). This currently states that the recordings of crown court trials should be “kept for seven years and then destroyed”.
The MoJ confirmed to me that this policy has now been scrapped. It stated that “effective from October 9 2023 onwards”, staff had been instructed to apply the following retention periods for crown court audio recordings:
- One year for not-guilty verdicts;
- Seven years for non-custodial sentences;
- At least seven years or the sentence length for custodial sentences (whichever is longer);
- And 99 years for life imprisonment.
The MoJ said it will officially publish this updated guidance in the new RRDS later this year.
End of a ‘reckless’ policy
For many years, the policy of destroying recordings of trials attracted a great deal of public criticism.
In January 2016, a letter was sent to the then secretary of state for justice, Michael Gove, urging him to change the policy. The letter – signed by 35 lawyers, academics and campaigners – said: “In this digital age, it is both reckless and irresponsible to systematically destroy the record of court proceedings.”
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In October 2016, Jerry Buting, the American attorney whose defence of Steven Avery featured in the Netflix docuseries Making A Murderer, told The Justice Gap that destroying recordings of court proceedings was “absolutely ludicrous”, adding: “Digital recordings take virtually no space. There is no excuse for the courts to not store forever – at least as long as the defendant is alive.”
A later campaign called Open Justice Charter (OJC) also highlighted the destruction of court records as a key failing in the justice system, stating: “No recordings of criminal court proceedings should be destroyed until at least seven years after the end of the prison term and any post-release licence period imposed.”
What was heard by the jury?
The key concern for those criticising the policy was what they saw as the deleterious affect it was having on those trying to challenge a conviction.
The way the appeal system works is that if a prisoner wants to challenge their conviction, they need to apply to the Criminal Cases Review Commission (CCRC) in order to be allowed to take their case to the Court of Appeal.
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The CCRC will not refer the case unless there is “fresh evidence” – something new which the original jury did not hear. And so, for someone who believes they have been wrongly convicted, their starting point will be to identify exactly what was heard by the jury.
For the prisoner and their legal team, this means getting access to the transcriptions of the trial. Without these, they risk submitting an application based on evidence that is not considered new, or omitting evidence that could be highly significant.
Some applications to the CCRC may come many years – even decades – after trials have happened, meaning that not even the prisoner will be able to fully remember what happened in court. For example, one miscarriage of justice victim, Peter Sullivan, was freed 38 years after a jury wrongly convicted him.
Leading legal figures such as Michael Mansfield KC, who acted for the Hillsborough families, has argued that the destruction of records hugely disadvantages those seeking justice. He told The Guardian: “Equally important is access to the record of proceedings and case documentation, without which injustice can be washed away.”
Emily Bolton, who founded Appeal, the charity and law practice dedicated to challenging wrongful convictions, also described the destruction of court records as “a complete roadblock to investigating miscarriages of justice”. She added: “What is the British system afraid of? It’s a public trial, and there should be an accessible record of it.”
More groundbreaking than it first appears
Despite all of this, the MoJ took years to revise the policy. In response to my FoI requests, it explained the decision had nothing to do with the criticism it had received:
The change from ‘seven years to seven years or the life of the sentence’ was driven by new legislation (at the time) called The Parole Board Rules 2019. Those revisions were of particular importance so as to ensure that audio records remain accessible for the entire duration of a custodial sentence, particularly when the sentence exceeds seven years.
But a close analysis of the MoJ’s responses to the FoI requests reveals something intriguing – that the change may be far more groundbreaking than it first appears.
While the MoJ may be reluctant to spell it out explicitly, it appears that the official policy has quietly moved from a position of court records being routinely destroyed, to one where they will now be retained indefinitely. And the reason for this is not legal or political – but purely down to technology.
The destruction of court records was really a legacy of the analogue age; a time when stenographers quietly tapped away in court and any recordings were kept on physical tapes.
In 2012, all of that was swept away when proceedings in crown courts began to be recorded by the Digital Audio Recording Transcription and Storage (Darts) system, meaning there was no longer any need to physically store recordings on tape, and therefore no logistical reason to destroy them.
So, while the new policy dictates that records will be retained for at least as long as the prison sentence, the new technology has essentially removed the need or justification for ever deleting any more court records. The MoJ came very close to admitting this to me when it said: “Crown court audio recordings are retained within HMCTS Digital Audio Recording Transcription and Storage system. To date, none of these court audio recordings have been deleted.”
If the Darts system had been storing recordings since 2012, and the MoJ policy was to destroy recordings after seven years, then they should have started erasing cases since 2019.
Significant costs
While the change is very significant and should dramatically improve access to court records, one critical barrier remains.
While the audio recording of the trial may now exist, it is not possible – except in very limited circumstances – to listen to it, so it must be professionally transcribed. And this can prove to be very – even prohibitively – expensive.
In 2023, MP Sarah Olney revealed that a rape victim had been charged £7,500 for a transcript of her assailant’s trial. And former government minister David Davis told parliament in 2024 he had been quoted £100,000 for a transcript of the Lucy Letby trial at Manchester Crown Court.
Many victims, particularly those who suffered sexual violence, are now calling for transcriptions of trials to be made free. This new campaign echoes an argument that miscarriage of justice campaigners like Bolton were making a decade ago. She said in 2016:
In this country, the system was privatised, and now profit-driven transcription firms hold justice to ransom, demanding thousands of pounds to provide sections of transcript of a trial. Neither the Legal Aid system nor individual prisoners or their families can afford this, and so the recordings languish unreviewed, and the system goes unaudited.
Robins told me: “The next step for accountability in our courts is to make the audio recordings or transcripts of proceedings available at an accessible price. In an era when there are free AI transcription services, these costs make no sense.”
The decision by the MoJ to stop destroying recordings of trials means that court records will now be available – as long as someone can afford them. It brings to mind the quip by 19th-century judge James Mathew, who said that “in England, justice is open to all – like the Ritz Hotel”.
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