Andrea Coomber examines proposals for a digital courts system and explains how JUSTICE is working to ensure such a system improves access to justice for those currently excluded from it.
Last autumn, Transforming our justice system – joint statement
(Ministry of Justice (MoJ)/HM Courts & Tribunals Service (HMCTS), 15 September 2016) announced a new vision for our courts and tribunals service. With the senior judiciary very much in the driving seat, the bold statement envisages a court system where most disputes are initiated, many progressed and some finalised online, with far less recourse to ‘paper’ and the need for physical court buildings.
It is easy to be sceptical. While most of us accept that technology is here to stay and that the justice system needs to catch up, the fear of the unknown is palpable. There are concerns about the historic failures of major government IT projects, about how poor and vulnerable people unused to using technology will access justice, and – in more hushed tones – what all of this will mean for the legal professions.
Moreover, there are concerns about the motivations. The explicit aims are of increasing access to justice and of propelling our justice system into an internet age. From government, there is also an assumption that online justice will save public money, for example, with fewer matters proceeding to full judicial consideration and fewer hearings meaning fewer expensive-to-run courts.
These concerns are all legitimate, but would be all the more powerful if our current system provided anything approaching accessible justice. The truth is that it doesn’t generally serve the needs of the majority and hasn’t done so for some time. It is with the needs of ordinary users in mind that the organisation I head, JUSTICE, has been at the forefront of proposals for a radical rethink of how our courts operate. While the government may be motivated by cost, we at JUSTICE are very much motivated by expanded access to justice, a motivation we share with the judiciary. Obviously, if money can be saved in the system through digitisation and streamlining, the redirection of funds to the neediest would be an added advantage.
Our court system is too slow, too costly, largely unintelligible to non-lawyers and becoming more antiquated by the day.
While often lauded as the best in the world, the reality is that our court system is too slow, too costly, largely unintelligible to nonlawyers (and often to lawyers!) and, as IT skips ahead, becoming more antiquated by the day.
Is access to justice access to a lawyer?
When legal aid was introduced in 1947, roughly 80 per cent of the population was eligible for support (Steve Hynes and Jon Robins, The Justice Gap: whatever happened to legal aid?, LAG, 2009, page 21). The justice system was ‘democratised’ and most people were either able to afford a lawyer or eligible to have one provided for them. Our adversarial court system thrived, as did the legal professions.
But over the past 30 years, state funding for legal advice, assistance and representation has contracted. Thresholds for eligibility have risen and scope for legal aid has shrunk. Most dramatic was the coalition government’s Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which saw most social welfare and family cases excluded from the scope of legal aid. A lot has been written about the devastating effects of LASPO – on the decimation of crucial ‘early advice’, on the creation of ‘advice deserts’ and on the rising numbers of people fending for themselves in courtrooms across the country. This article doesn’t rehash the effects of LASPO, which these pages have covered in detail in the past; suffice to say that it has highlighted that our adversarial system – predicated on everyone being represented – is no longer fit for purpose.
While LASPO has been the final straw, the truth is that as legal aid has decreased over the past 30 years, the majority of the population have been excluded from our courts. For years now, most ordinary people wouldn’t qualify for legal aid and realistically would never be able to afford a lawyer, nor be able to sensibly expose themselves to the costs risks associated with civil litigation. With 20 years of working for NGOs under my belt, I count myself among this group. For those faced with a possible civil claim, the options become to represent themselves (most likely, poorly) or to give up on the courts altogether. Research by Citizens Advice suggests that 71 per cent of respondents would think twice about commencing legal proceedings if unable to afford a lawyer (Responsive justice: how citizens experience the justice system
, November 2015, page 13). While there is much talk of our courts being clogged up with litigants in person, in reality many people are just staying away.
Transforming access to justice
A few years ago, Australian Family Court judge Deputy Chief Justice Faulks wrote that when a system is faced with large numbers of litigants in person, there are three possible solutions: make people lawyers (through public legal education); give people lawyers (through legal aid); or change the system (Self-represented litigants: tackling the challenge
, Managing People in Court Conference, National Judicial College of Australia and Australian National University, February 2013, para 3).11 See also Liz Trinder et al, Litigants in person in private family law cases, MoJ, November 2014, pages 112–113.
JUSTICE is very much in the business of system change.
In 2014, a working party of our members, chaired by Sir Stanley Burnton, started work on ascertaining how the civil courts and tribunals might operate differently. Our work revealed that much of judges’ time is taken up by tasks that could easily and better be done by someone more junior, through an investigative rather than adversarial system. Most matters going to court aren’t legally, or even factually, complicated; in many cases, people just want to know if there is ‘anything in it’. With a lack of free legal advice, they end up in court before a judge, who is often the first lawyer they’ve spoken to. This is a difficult and unedifying process for everyone, and obviously not the best use of expensive judicial time.
To provide more meaningful help to litigants, our Delivering justice in an age of austerity
report of April 2015 proposed the use of what we called registrars, picked up by government and now termed case officers, to facilitate early triage: engaging in early neutral evaluation or mediation with parties, discussing the implications of the litigation and referring complicated matters to a judge. We proposed greater support for users of the system, through accessible and affordable integrated telephone and online advice, with much more being done online. In an internet age, our court system’s absolute reliance on paper and on in-person proceedings seems out of step. A similar approach was recommended by the parallel report of the Civil Justice Council’s advisory group on online dispute resolution (Online dispute resolution for low value civil claims
, February 2015), chaired by Professor Richard Susskind (who also served on our group).
I am delighted that our work has been picked up by the powers that be and is now shaping HMCTS’s reform programme, supported by an unprecedented £1bn investment from the Treasury in the modernisation of the courts. In the middle of last year, Briggs LJ’s Civil courts structure review: final report
(Judiciary of England and Wales, July 2016) proposed the adoption of a system very much in line with that suggested by JUSTICE for claims of up to £25,000. And it’s not just civil justice: family, crime and the tribunals are all going online.
As noted above, last September the lord chief justice, the senior president of tribunals and the lord chancellor agreed a vision of the courts of the future in Transforming our justice system – joint statement. This white paper envisages a more accessible justice system, with more done on the papers or online, and less recourse to court attendance. The use of remote, virtual and online proceedings is set to expand in all areas with, for example, a Briggs-proposed ‘Online Solutions Court’ for certain lower-value civil proceedings, an online guilty plea procedure for minor criminal offences and initiation of private family matters online.
Challenges posed by technology
Technology offers exciting opportunities to improve access to our courts and, at the earlier stage, access to legal help in identifying and addressing a problem. For example, ‘chatbots’, translation software and video conferencing might fill the gaps in accessing justice in everyday civil matters like debt. However, despite the promise of improved access to justice for ordinary court users, there is a risk that certain people will be left behind. These include those who lack access to the internet, without the language, IT or other skills, or generally the ability or willingness to operate in an online environment.
The degree of digital exclusion remains unclear. One source, the official Digital Inclusion Strategy, published on 13 April 2014 during the coalition government, brings together statistics on internet use from a range of reliable sources, eg, Ofcom and the Office for National Statistics. The most recent data
indicates that, as of 2017, almost 5m people in the UK had never used the internet, of whom more than half were older than 75. Of adults aged 16–34, though, 99 per cent were recent internet users. Obviously, ‘using’ the internet and being in a position to engage in a court case on it might be quite different propositions.
Beyond numbers, it is important to look at the demographics of the digitally excluded. A recently published analysis (Ellen J Helsper and Bianca C Reisdorf, ‘The emergence of a “digital underclass” in Great Britain and Sweden: changing reasons for digital exclusion
’, New Media & Society
, vol 19, issue 8, August 2017; originally published 3 March 2016) comparing reasons for internet non-use in Great Britain and Sweden suggests that, over time, ‘non-user populations have become more concentrated in vulnerable groups’ (page 1), ie, those who are ‘increasingly older, less educated, more likely to be unemployed, disabled and socially isolated’ (page 27). Interestingly, ‘lack of interest in the internet’ was an important reason cited by non-internet-users in 2013. The authors describe an ‘[e]ntrenchment of digital exclusion among the most vulnerable’ in both countries – the advent of a ‘digital underclass’ (page 27).
As our justice system goes online, the needs of these people will have to be prioritised. We know vulnerable people have frequent need of the protection of our courts and tribunals; however, there is no point pretending that they enjoy full and meaningful access to our current system. They are already being let down. Very many are denied access to justice, along with people of modest means. This latter category is largely excluded from access to legal services at the moment, but may feel comfortable pursuing justice online. While an online court undoubtedly poses challenges for access, those who oppose it don’t seem to be proposing a realistic, more inclusive alternative.
This autumn, JUSTICE will launch a new working party of our members to explore and make recommendations on support for the ‘digitally excluded’ in a 21st century justice system. We will propose ways of ensuring that technology enhances rather than hinders access to justice. This will include exploring the necessary features of simple and accessible online interfaces, identifying groups that lack access to technology and/or the ability to use it and recommending solutions to assist them. We need to ensure that online justice is adaptable to the needs of ordinary users and puts them at the heart of designing, funding and running such systems.
Around this time, we expect a new Courts Bill, which will start to shape how our online justice system will operate. With all three major political parties making manifesto commitments to modernising the court system, hopefully we will soon be on our way to a legislative foundation for the next evolution in our court system. While ours is the most ambitious plan for modernisation internationally, there are lessons to be learned from systems adopted in the Netherlands and particularly from the launch last summer of British Columbia’s Civil Resolution Tribunal for small and common strata civil claims. Obviously, it will be critical to scrutinise proposed fee structures and to ensure a generous and simple process for application for fee waiver online.
While we often boast that our justice system is the best in the world, it risks being a system of two parts: all-singing, all-dancing justice for big business and wealthy individuals able to pay for outstanding lawyers to represent them in court; and, at the other end, a system struggling under the weight of people who are fending for themselves in the face of antiquated processes that are too expensive, too slow and unnecessarily complicated. The innovations planned go some way to start redressing this imbalance of experience. The justice system has always evolved; this latest stage offers the possibility of putting the needs of ordinary people at the heart of reform.