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?
Digital by default
“By the year 2022, most civil disputes in England and Wales will be resolved through an online court.”
This stark prediction opens Joshua Rozenberg’s ebook, The Online Court: will IT work? (Kindle editions, £3.99).
He said much the same when giving a lecture recently at Gresham College, entitled Justice Online: just as good?
As he went on to explain, what is ultimately envisaged goes much farther than the relatively modest, low value dispute resolution and summary offence processing system that was the subject of the recent Transforming our Justice System consultation, the government response to which was published in February 2017.
In fact there are a number of related justice modernisation projects all taking place under the general umbrella of something called HMCTS Reform. HMCTS is Her Majesty’s Courts and Tribunals Service, an executive agency of the Ministry of Justice (MoJ). The programme as a whole has been promised a budge of over £1bn. This is a massive sum to commit at a time of austerity, but if it succeeds it will save something like £250m a year by eliminating many of the costs of running a paper-based bricks and mortar court system. It also compares favourably to the £10bn said to have been wasted on a failed NHS patient records IT system.
“Gone are the days of single, large scale, beginning-to-end government IT projects handed to multinational IT consultancies” HMCTS’s digital director Kevin Gallagher said last year. The new approach is described as “agile development”, which means building and testing in small steps, with intense involvement and feedback from users.
It marks a decisive break from the approach taken in the past. For example, when Lord Woolf was Lord Chief Justice from 2000 to 2005, he wanted court officials to install IT in the civil courts as part of his civil justice reforms. They set about wiring the courts at enormous expense, but then ran out of money and could not complete the job. Meanwhile the wiring had become completely redundant once everyone had wifi.
(For more accounts of the sisyphean frustrations of getting IT into the court process, see the blog of Sir Henry Brooke, the former Lord Justice who was once the judge in charge of modernisation on the old Court Service Board, eg “November 2004: Court modernisation and the crisis facing our civil courts”).
“One reason why attempts to introduce IT in the courts failed so badly around the turn of the century,” Rozenberg explained, “was that the judges had no effective voice in running the courts in which they sat.”
All that has changed with the establishment of HMCTS and the involvement of the judiciary in its leadership and in the management of the Reform programme. The greatest lesson learned in the early days was the need to consult at every stage, and to build the system together.
One of those playing a key role in developing the new online court is Sir Adrian Fulford, formerly Lord Justice, who has recently been appointed the first Investigatory Powers Commissioner.
Giving the 2016 University of Sussex Draper Lecture at the Law Society last November, he began by conjuring up an image of the pre-IT legal world that had existed when he began his career, and that had remained unchanged for a century or more. It was a world symbolised by the pink ribbon in which documents had been bundled together in a practice stretching back to the sixteenth century. There were judges of his generation, he said, who had been brought up solely on paper, who had begun their careers before the advent of the photocopier, when copies had to be typed in triplicate or made on roneo machines, leaving ink all over your fingers.
Because of a chronic lack of investment, the judiciary remained rooted in practices recognisable from 300 years ago, but no longer manageable in the modern world. The slender bundles in pink ribbon were now stacked cardboard boxes full of paper. Even if it wasn’t printed out, the amount of electronic material on laptops was huge. There were “mountains of costly nonsense” in Dickens’ phrase.
Now those traditional ways of working were, he said, about to disappear. The conduct of litigation would finally catch up with a world in which users booked holidays online and bought books from Amazon.
However, this did not mean that judges would be replaced by cyber judges or robotic courts. Despite the increasing use of algorithms and machine learning techniques (for example in predicting risks or outcomes based on analysing bulk data), every decision respecting a person’s substantive rights would still be made by a judge.
The true revolution would be in the simplification of the process. Under the new system, every case would be (i) initiated, (ii) progressed, (iii) case managed and (iv) decided online. All papers would be electronically filed. Information would only need to be keyed in once, and then re-used and passed onward in digital format. Cases would be bundled and stored electronically, and shared with other agencies or parties electronically. The aim was to remove all paper from the operating process. No couriers. No problems with photocopiers. No lost files.
Hearings in court would take place only when necessary and proportionate. Otherwise they should be conducted online.
Criminal trials, with witnesses and physical evidence examined before a jury, will still need to be held in traditional court rooms; but the paperwork can be stored and accessed via computer, as can video evidence, as Joshua Rozenberg demonstrated during his lecture with some recent pictures of an electronically equipped Crown Court where, using something called a ClickShare dongle, everything can be relayed from laptops onto a big flatscreen monitor on one wall.
But preliminary hearings can be conducted by conference call, obviating the need for advocates to be physically present with the judge in court; and pleas of guilty and the imposition of lower level penalties can be dealt with online. Subject to that, criminal justice will continue much as it has done since Victorian times.
The real difference will be in civil justice, whose transformation, according to the current Lord Chief Justice, Lord Thomas, will “achieve the most radical reform since 1873” (which saw the fusion of law and equity, and the consequent reorganisation of the courts and their procedure).
Though IT will provide the means for the transformation of civil justice, the philosophical backing for it has come principally from the Briggs Report, commissioned in 2015 and published last year. This recognised that the great strength of the civil courts of England and Wales lay in the excellence of their judiciary but the great weakness lay in the fact that hardly anyone can actually afford to use them. The problem was that the courts had been designed by lawyers, for lawyers. With the large-scale withdrawal of legal aid, many had been left to represent themselves as litigants in person, or forego justice.
But for the first time, Briggs said, there was now an opportunity to “design from scratch and build from its foundations a wholly new court for the specific purpose of enabling individuals and small businesses to vindicate their civil rights in a range of small and moderate cases … without recourse of lawyers or with such minimal recourse that their services can sensibly be afforded.”
In Rozenberg’s view the system will not do away with lawyers altogether. For example, a claim by a consumer against a business defendant could be handled by lawyers on the defendant’s side; and the claimant might still obtain “unbundled” advice on the prospects of his claim without needing lawyers to manage the actual litigation. That would be covered by imposing fixed costs on the losing side.
But the online court will not require lawyers to manage the process of litigation. Instead, the system will provide an online “decision tree” questionnaire to enable the user to classify and formulate the legal and factual issues in dispute. This could be done on a desktop or laptop, tablet or smartphone, using downloaded software or a dedicated app.
Supporting evidence could be scanned and filed online. For most claims, the process of filling in the online forms will help to clarify what the claimant wants, and the exchange of claim and any response may be enough to arrive at a settlement. Case management and some sort of mediation provided by a legally qualified case officer, acting under judicial supervision, will constitute the second stage of the process.
If no settlement is achieved, the case will proceed to the third stage, in which the court either resolves the case without a hearing, or a hearing will be arranged, perhaps by telephone or video conference (Trial by Skype as it has been called, or perhaps FaceTrial would be more appropriate). If necessary, seemingly as a last resort, there would be a face to face physical hearing, with all parties present in one room (though some witnesses might give evidence by video link).
Legal advice and information
The online procedure may also provide basic legal guidance, and indicate sources of free or affordable advice. Whether it will go farther, and provide links to primary sources such as statutes and case law remains to be seen. There is certainly an opportunity here, for some enterprising vendor of easy-to-use legal advice triage systems such as are available in other jurisdictions: see, for example, this article from Law, Technology and Access to Justice about Victoria Legal Aid’s online triage tool.
It’s clear that what’s currently under development will be only a first phase, and that once bedded in and tested the online court will be developed to handle ever more complex disputes. When that happens, the system will need to accommodate not just electronic filing and exchange of documents and evidence, but also the exchange of legal materials such as the contents of “authorities bundles’ — those over-stuffed lever arch files full of printed PDFs of law reports and statutes so beloved of the clerks who have to heft eight sets of them to court in trolleys.
The days when law reports were fetched off the shelves in the court by the usher and handed up to the bench are long gone; so, soon, may the days when legal argument is presented orally in a victorian oak-lined courtroom in the RCJ.
But where is the press bench in the online court, and where does the law reporter sit?
The current proposal seems to be to provide “viewing booths” in court buildings (those that haven’t been sold off, presumably) where press and public could view ongoing trials, to the extent that anything viewable was going on, and subject to reasonable restrictions to prevent recording or misuse of the broadcast material.
Eventually it should be possible to view proceedings and access court records from anywhere — just as one can now access most of the judgments handed down in the senior courts on the British and Irish Legal Information Institute (BAILII) website. Such access to information should be no more dependent on physical location than the process of litigation itself.
It may be the case that, initially at least, any hearing involving a substantive point of law, particularly if the law itself is in dispute, will take place in a physical courtroom to which law reporters will have access, so they can follow the argument as well as recording the judgment. But that may not continue to be the case.
Some consultation has been conducted in respect of the likely impact of the online courts on different types of court user; but the interests of reporters and public access to information do not appear to have been adequately considered or consulted upon and that is something that needs to be put right before it is too late.
(For more on this aspect, see also Judith Townend’s article Online courts: the human impact.)