The Courts Bill 2017 has reinstated the legislative underpinning of the courts modernisation programme that began during the last government. But the UK’s long history of bungled large-scale IT projects looms over the current development of the Online Court.
Can it succeed where so many before have failed? And are people really ready to access justice in the same way as online shopping or holiday booking?
“By the year 2022, most civil disputes in England and Wales will be resolved through an online court.” This is the startling announcement that begins Joshua Rozenberg’s recent book, The Online Court: will IT work?
The online court is one of 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 budget 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 system using bricks and mortar courts (many of which have already been sold off).
The legislative underpinning for this, and in particular the necessary rule-making power to provide a set of procedural rules for the online courts, had been included in the Prisons and Courts Bill which was lost in the “wash-up” at the sudden death of the last parliament. The new Courts Bill is a less ambitious piece of legislation, leaving prison reform to be dealt with separately.
The ghost of failures past
A note of caution has been voiced by Professor Roger Smith, in a recent post on the Law, Technology and Access to Justice blog, discussing an earlier online court project in the Netherlands, which did not live up to its ambitions.
The Rechtwijzer, developed in conjunction with the Dutch Legal Aid Board and Ministry of Security and Justice, was intended to be an innovative way of assisting those going through family problems to negotiate settlements. It employed a three-stage online mediation model which has been adapted elsewhere – including most recently in British Columbia, Canada. But in March this year the Dutch project was effectively wound up, having failed to gain acceptance.
Mindful of this, Professor Smith thinks the UK should wait until the Canadian version, which only started taking claims in June this year, has been tried and tested and lessons learned. “Personally,” he says, “I would give it at least a year before I spent a single penny.”
Those involved in the UK’s online courts project are conscious of the burden of past failures but they say their new approach is different. “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.
Involvement of judges
It also means involving the judiciary in the development process in a way that’s never been attempted before. One of those playing a key role in developing the new online court is Sir Adrian Fulford, a former Lord Justice of Appeal, who has recently been appointed the first Investigatory Powers Commissioner.
Giving a speech at the Law Society last November, he dismissed fears about “Cyber judges” and “robot courts” and explained that, 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. Hearings in court would take place only when necessary and proportionate. Otherwise they should be conducted online, which could include video conference style hearings.
Involvement of ‘legal geeks’
Earlier this month, over 200 dedicated coders and legal geeks got together at the University of Law in London to see what they could come up with in the way of applied technology in support of the online court. The 23-hour Online Courts Hackathon was jointly organised by the Society for Computers and Law (SCL), Legal Geek, the Judiciary of England and Wales, and HMCTS.
The organisers of the event identified eight real life challenges that face online courts: form filling, order drafting, continuous online hearing, argument building, outcome prediction, negotiating & settlement, dispute classification and bundles. Teams including members of London’s top law firms and leading UK universities, as well as tech companies and others, competed to provide solutions.
Awards for the best solutions were given out at the end by the Lord Chief Justice, Lord Thomas of Cwmgiedd, who has been a driving force in the promotion of court modernisation, alongside current president of the SCL, Professor Richard Susskind, and two former SCL presidents, Sir Henry Brooke (who wrote about it on his blog) and his predecessor, 93-year-old Sir Brian Neil.
Involvement of users in an online court
Whether you call them claimants, or customers, or indeed defendants, the users of the online court will be critical to its success. Concerns have been raised in relation to the criminal side of the online court, which at this early stage will be confined to things like pleading guilty to rail fare evasion and other low level offences.
But Penelope Gibbs, of the charity Transform Justice, has voiced concerns about defendants being tempted to plead guilty by pressing a “call to action” style button on their phone app and ending up with a criminal record that might affect future employment prospects.
She has also identified risks to fairness with the untested use of technology in relation to virtual hearings and the use of video links instead of trials in open courts, particularly where defendants are vulnerable and/or unrepresented. In one recent blog post, she points out that “Most of virtual justice is an evidence free zone”, citing the woeful lack of properly evaluated and up to date research.
Another, entitled On screen but disconnected? The reality of virtual justice, recounts her experience of visiting a magistrates court that dealt with all the cases remotely, and her concerns about the effect on vulnerable witnesses and defendants.
In terms of the civil side of the online court, while initially it will be confined to small claims, there is a risk that users will either be put off by the effort involved (the Rechtwijzer online process had an average completion time of 24.3 hours!) or the court fees (the MOJ has a regrettable record on this) or the lack of legal assistance and advice while presenting or defending claims.
On the other side of the coin is the risk that, if the process is too easy and cheap, it will provoke a flood of claims, including vexatious ones, or give vent to a form of “litigious trolling” to harass businesses on political or ethical grounds.
However, these are early days and there is plenty of evidence from the amount of the resources being promised, the involvement of the judiciary (at a very senior level) and the enthusiasm of the legal technology geeks that the online court could actually become the success that bucks the government IT trend.
Paul Magrath is Head of Product Development and Online Content at the Incorporated Council of Law Reporting for England and Wales (ICLR). He tweets as @Maggotlaw.