The testing of online courts should not simply be about whether the technology works, said Andrew Langdon QC, chairman of the Bar at an event on 16 February hosted by the UCL Judicial Institute, ‘The Case for Online Courts’.
He sensibly pointed out the ‘human process’ of law, and the potential impacts of the transition to digital over face-to-face technologies.
Langdon was one of a number of experts responding to Professor Richard Susskind’s lecture on his vision for online courts, and online civil dispute resolution in particular.
Susskind, IT Adviser to the Lord Chief Justice, re-capped his 2015 recommendations for Online Dispute Resolution for low-value civil claims, which received a positive media and judicial response at the time; the legal profession (as reflected in later responses by Langdon and Robert Bourns, President of the Law Society) had more reservations.
To some extent this is expected, said Susskind; all professions are resistant to change, as he explored in his book – co-authored with his son – on the future of professional expertise. It doesn’t seem to have fazed him: he offered a lively rebuttal to the criticisms he’s heard, arguing that his proposals will improve access and the court user experience, rather than diminish it.
He suggested that if the state doesn’t provide, the private sector will, which poses risk to the Rule of Law. In his view, it was vital that the state offers public digital services that offer low cost and efficient dispute resolution.
As well as Langdon and Bourns, we heard from Susan Acland-Hood the new Twitter-active CEO of HMCTS (@CEOHMCTS); Sir Ernest Ryder, senior president of Tribunals, with UCL’s Professor Hazel Genn as chair.
[You can find some of my tweets from the evening here]
Change in ‘bite-size’ chunks
Acland-Hood describe the culture of reform in HMCTS as one of incremental change with user ‘engagement’ and testing at every stage. She later suggested that lawyers should be advising, not navigating clients through administrative processes.
We were shown screenshots of a ‘Money Claims’ service currently in ‘alpha’ testing stage; and a Divorce application service in ‘beta’ – complete with adultery or otherwise tick boxes to indicate the reason.
Her emphasis was on the necessity of this change and she used the analogy of modern banking. How many people would now give up online banking and ATMs if they had to choose between those services and face-to-face meetings with the local bank manager? Her point being – presumably – that we can have both: online services for straightforward and simple processes and face-to-face for situations that necessitate it.
Following Acland-Hood’s contribution, Sir Ernest Ryder made clear that the judiciary understood it wasn’t a ‘one-size-fits-all’ solution. An advocate of online and virtual processes where appropriate, he discussed their benefit (e.g. allowing participation from overseas) but also limitation when a lack of digital access or skills prohibited participation.
Open justice and digital publication
So what was missing from the discussion? I’m aware that I sound like a broken record but I was disappointed we didn’t hear more on the access plans and implications for online and virtual courts.
Susskind touched on the open justice concerns prompted by ODR proposals, and suggested that ODR could in fact increase access and transparency for civil litigation. In his view, an internet-based based court service is likely to be more transparent and visible to larger numbers of people.
He’s probably right (many civil claims are either abandoned or settled out of court away from public view) but I think there’s more to be discussed on this point. What sort of transparency is required? How should open justice look in contemporary digital society? How much courts data should be available to the public and media, and in what formats?
In the Q&A that followed Penelope Gibbs of Transform Justice asked the panel about plans for systemised publication of online conviction results (mentioned very briefly in the recent ‘Transforming Our Justice System’ consultation, accompanying Impact Statement and Response). Sir Ernest Ryder indicated that legal implications for data protection and rehabilitation are being considered by the judiciary and legal opinion sought.
In my view, this answers the ‘legal process’ question, but not the ‘human process’ one (in Langdon’s terms). It is worrying that – to date – the MOJ has not publicly consulted on its open justice plans.
It is meeting with stakeholders and its ‘engagement groups’ but I think it needs to go further than this. These plans will have very real social impact and this needs to be anticipated and considered.
Ryder expressed his desire to maintain and uphold open justice and suggested that much of this data (e.g. listings) is already available. I would add that some of this data is public, but in a very chaotic and patchwork way. Systematic publication of trivial offence listings and results (rail fare evasion, for example) will be a new innovation and needs thinking through. Bizarrely, as Penelope Gibbs has previously pointed out, if a person pleads guilty and accepts an online conviction, they may face more exposure than if they are convicted in a physical hearing having pleaded not guilty (she says this isn’t a reason for publishing all convictions online).
Furthermore, open justice discussions must not be limited to representatives from the media and legal professions. There are a whole range of courts users and observers who have an interest in open justice and whose views need to be heard in order to design fair and effective access systems. These include legal and justice NGOs, academic researchers, civil litigants and their family members, criminal defendants and people with convictions, witnesses and victims. HMCTS must talk to representatives of these affected groups.
I will continue to raise these points and try and engage with members of the judiciary, MOJ and HMCTS as far as they will let me! The forthcoming Prison and Courts Reform Bill (promised in the last Queen’s Speech) may offer opportunity to engage with Parliamentarians too.
My fear is, however, based on last night’s debate, is that once again access to courts data is an afterthought – understood as a practical issue to resolve internally with a few selected stakeholders, rather than one of fundamental importance to the rule of law and respect of human rights that needs open, independent and external scrutiny.
Plans for future online communication of courts will have a whole range of ‘human’ impacts and we need robust research and an open policymaking process to help the judiciary and HMCTS devise fair and proportionate systems for public and media access to modern court and tribunal proceedings.
Judith Townend is a lecturer and researcher based at the University of Sussex and a member of the Transparency Project core group. This post originally appeared on her blog and she can be found on Twitter @jtownend. If you’re interested in participating in future research on this topic please get in touch via judith.townend <at> sussex.ac.uk.