Our 2017 review continues with developments in the courts.
Internet Newsletter for Lawyers
Edited by Nick Holmes and Delia Venables
Articles filed under Access to justice
Co-operative Legal Services (CLS) looked set fair little more than five years ago to become a world leader in the commercial provision of access to justice for low income clients.
In 2011, its then newly appointed director, Christina Blacklaws, announced: “we … want to push the boundaries in delivering advice in other ways for people who would rather access legal services in different ways.”
Alas, early optimism has been tempered; Ms Blacklaws has long gone; and now “Recovery stutters at ABS [alternative business structure] standard bearer” reports The Law Society Gazette. The Co-op once offered a world-leading package of external funding, corporate ownership, unbundling and web-based services.
How did it all go wrong and should we temper expectations of the potential role of technology in low income practice more widely? The answer to this crucial question may well be dependent in England and Wales on the digitalisation of the courts.
I don’t meet many people working in the justice system who disagree that we need to change, but people do often question whether we will be able to do what we have said we will, and whether our reforms will be implemented well and will work properly. They point to criminal justice or wider Government IT problems of the past to illustrate these worries.
The ambitious courts modernisation programme known as HMCTS Reform continues to grapple with the process of creating a justice system that not only is suitable for the digital world of today but also won’t look out of place in fifty years’ time. How is it getting on?
Courts in England and Wales have been struggling with information technology for so long now, that expectations of any improvement remain stagnantly low. Nevertheless, the current project to create an Online Court with its own procedure and staff goes beyond anything hitherto attempted. Can it overcome a long history of failed IT projects and deliver something that not only matches its own ambition but overturns our low expectations?
And if it does, what will happen to the principle of open justice and accountability, not to mention law reporting, when court hearings are conducted in a virtual realm without the press bench and public gallery of a traditional physical courtroom?
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.
On 6 October 2016 Professor Richard Susskind delivered the annual Society for Computers and Law lecture, entitled “Upgrading the Law”, marking 20 years since the publication of his The Future of Law. How had he fared in his predictions?
He was not shy about confirming his successes but did not gloat and admitted that his predicted expert systems solving complex legal issues hadn’t taken off as he’d envisaged. Whilst legal and compliance rules are increasingly built into systems, the artificial intelligence that has arrived is generated by brute force processing rather than elegant, encoded reasoning.
As to recent developments and his hopes and fears for the future, I pick two that have elicited further comment.
Professor Richard Susskind OBE is well known within the legal profession for his numerous books predicting a dramatic transformation in legal practice, and calling for an overhaul of 21st century lawyering.
In February 2015 he made national headlines for his proposed eBay-style scheme for online dispute resolution (ODR) and the recommendation that HMCTS introduce a new, internet-based court service, known as HM Online Court (HMOC), to be launched in 2017. As Chair of the Civil Justice Council’s ODR Advisory Group and IT Adviser to the Lord Chief Justice, he had been tasked with finding a way to resolve low-level civil claims more cheaply.
Law is a complicated subject and its effect on people’s lives can be hard to explain. But in certain areas the traditional media, particularly at the tabloid end of the spectrum, are notoriously prone to bias and misrepresentation.
Three areas of law where this is particularly noticeable are family, crime and human rights.
In all three areas, lawyers who are fed up of seeing cases misrepresented in the press have got together to provide a solution: websites which aim to clarify the issues, dispel the myths and help the general reader to understand what is really going on.
Most people would now agree that public information should not only be publicly available, but also freely available. In the area of law, this is assumed to include not only legislation but also case law.
This is, after all, the law of the land, ignorance of which is considered no defence. It is probably impossible to know all of the legislation currently in force, and certainly impossible to know all the common law, developed incrementally, case by case, over hundreds of years. But we should at least be able to refer to it. As public information it should certainly be accessible. Does that mean it should also be in public hands?
This article looks at the pros and cons of placing the custodianship of public legal information in public, private or – a third way – charitable (or non-profit) hands. It looks at the situation as it was, as it is now, and as it might be in the future.
Richard Miller, Head of Legal Aid at The Law Society, said of our Access to Justice Campaign, launched in September 2104, “I am very keen that [it should] include guidance to our members about what they can do to make services more affordable to clients; and that, of course, includes how they can use technology either to deliver old services in new ways or to find new services to provide.”
Neither the scale of the challenge nor its seriousness should be underestimated. On the one hand, the Legal Aid, Sentencing and Punishment of Offenders (Laspo) Act 2012 sliced £330m out of the annual civil legal aid budget; on the other, according to Oxfam, one in five of the UK population lives below the poverty line. This is a toxic combination for us all, not just those, mainly recipients of help but also providers of services, who are directly affected. In the Law Society’s view, in the absence of access to justice, people are unable to have their voice heard, exercise their rights, challenge discrimination or hold decision-makers to account. Access to justice is the foundation of a fair and democratic society and an attack on those foundations is an attack on us all.
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