Digitalization of the Courts: Commendable or a Calamity?

According to the government and the judiciary, embracing the technologies of the digital age seems to be an answer to a vast number of problems facing our current court process. We already have paperless courtrooms, video bail applications for prisoners and the ability to stream the testimonies of vulnerable witnesses. However, recently an ambitious £1.2 billion has been poured into a court digitalization project that attempts to reform our entire system, but that focuses mainly on relatively small civil claims. 

There’s no doubt that our current courts have a somewhat long list of faults. At the moment, we have a complex system that trips over itself in its attempt at protecting the rights of all. Despite being one of the forerunners in domestic justice worldwide, cases take a long time to resolve, are cumbersome, costly, unintelligible to the layman and seem out of step with the digital world. Part of delivering justice is having and maintaining a speedy and efficient process: an aspect that (despite all its redeeming qualities) the UK’s legal system does not successfully deliver.

In addition to this, large cuts in legal aid have led to a vast influx in litigants approaching the bench without legal representation. These cases can take up to three times as long to resolve due to lack of legal knowledge; this results in a need for far greater resources, and due to the lack thereof, the question of digitalizing the legal system is raised again. 

The question then arises that if a daunting process means people may not seek justice when they should, will a simple online procedure mean that they are more likely to pursue it? Is such a thing possible with such a complicated system? 

The way the government is pitching these massive changes certainly seems appealing. Claim cases under £10,000 have no cost allowance; this means a vast number of people are going to court without representation, the dangers of which we’ve already seen. Shifting claims online appears to streamline the process: a service has been implemented whereby answering a series of questions online to seek a valid small claim has been used over 70,000 times in just over 12 months[1]. What’s more, nine out of ten users are very or simply satisfied with it[2].

Some other reforms include enabling online applications for a divorce or probate, appealing against welfare benefit decisions, or entering plea for many low-level, summary and victimless offences such as speeding or fare evasion. Susan Acland-Hood, Chief Executive of the HM Courts & Tribunals Service even claims entire hearings that are to be held via video conference are in the works[3].

On the other hand, this is uncharted territory. Professor Susskind, legal tech expert, acknowledges that some of the innovation ‘will go spectacularly well; some will no doubt fail’[4], but he states that what matters is our ability ‘to learn and improve’[5]. Human nature tends to be rooted in safety, tradition and what we know; should we press ahead? Or shy away? After all, it’s important to remember that the consequences of an uneducated blunder will have a massive impact on countless lives.

Various other benefits include police officers being freed-up from hours of travel to and dawdling at court (sometimes to trials that were postponed or dropped). Moreover, efficiency has certainly been proven as a benefit. For instance, according to Reform, a Westminster think tank dedicated to public service reform, more than 40% of completed divorce paper forms had to be redone because of handwritten mistakes, in comparison to less than one per cent online[6].

However, it’s when we try to widely increase use of tech that the idea tends to fall through. When those who already do not trust the law and view it as a constant barrier are forced to have private consultations on camera (for less than 15 minutes at times) to prepare them for a court hearing, they may feel disconnected from the court process: ‘it’s almost as if they’re being processed by a machine’[7], says Penelope Gibbs, Director of Transform Justice Video links, lawyers complain, are fracturing the lawyer-client relationship, destroying trust and short-changing defendants[8]. The links mean defendants are more likely to plead guilty, are more likely to get longer prison sentences, and are less likely to be adequately represented[9]. Further still, they are more stressed and the chances of them acting out are increased as it is much easier to get frustrated at a screen. Overall, these technologies, rather than ridding us of barriers, appear to be posing even more impediments in the pursuit of justice.

Another issue at the forefront of the debate is transparency. Is having the process take place behind (maybe not closed but certainly not open) doors a threat to having a critiqued and scrutinized system? The principle of open and fair justice may be infringed upon, potentially resulting in an even greater loss of trust in the system.  

Then there’s also the question of the precise role of lawyers within the digitalized process. Research has shown that pre-action advice is extremely helpful in classing what type of suit to pursue and whether to pursue it.

About a year a ago, a report was issued by the Public Accounts Committee (PAC): it provided a worrying account about the speed of the reforms and the number of courts being closed down in favour of them (as of 2019, half of magistrates courts have closed since 2010, resulting in further issues such as long journeys to court). ‘HMCTS has not properly tested the use of new technology in accessing justice’ [10] the PAC commented. ‘We share concerns raised by legal professionals and in written submissions that, without sufficient access to legal advice, people could make uninformed and inappropriate decisions about how to plead, and that the roll-out of virtual hearings could introduce bias and lead to unfair outcomes.’[11]

“Sir James Mathew once quipped that justice in England is open to all, much ‘like the Ritz Hotel’ [12]; the proposed digitalization of the courts appears to do little for those who are in need now.”

In an evidence session held by the House of Commons Judicial Committee in July of 2019 discussing the digital court and tribunal reforms, there was extensive discussion about the degree of internet access members of the public enjoy and the digital literacy of the most vulnerable[13]. 10% of all adults will never have basic digital literacy skills. The law should strive to protect all; yet, this new system seems to be leaving them behind. It’s not as if the court process will be entirely online – there will of course be the paper route option but, for example, many people who use pay-as-you-go phones won’t be able to afford telephone-based support. Take the poignant example of the I, Daniel Blake film. One of Blake’s biggest hurdles in the film being filling out a form on the Internet, which may seem a simple task to some, but it takes him hours and a large amount of help to complete, with no alternate route and no helpful telephone advice from the outsourced company. 

All of this combined with the lack of sufficient research as to the results of  such extensive reform has certainly caused a stir in the crowd. The reforms have been badged as increasing convenience yet this is arguably not that much of an important factor to consider when discussing access to justice. We need a system that is easy to use but that also delivers a substantive (and more importantly, just) outcome. We also have to question why £1.2 billion has been poured into this scheme, whereas a mere £11 million has been channeled into legal aid for the people who need help navigating the currently plagued system[14].

Sir James Mathew once quipped that justice in England is open to all, much ‘like the Ritz Hotel’[15]; the proposed digitalization of the courts appears to do little for those who are in need now. Nevertheless, the impact of this process is yet to be seen. Will it serve to rid us of the current issues that plague the courts? Or will it fashion yet another barrier to justice? 

[1] Susan Acland-Hood, 'Rethinking Justice' (Liberata 2019) <https://reform.uk/sites/default/files/2019-06/Delivering%20Digital%20Courts%20-%20Corrected.pdf> accessed 1 December 2019.

[2] ibid.

[3] ibid.

[4] 'Justice Committee Hears Evidence On Digital Courts And Tribunals' (Lag.org.uk, 2019) <https://www.lag.org.uk/article/206556/justice-committee-hears-evidence-on-digital-courts-and-tribunals> accessed 20 November 2019.

[5] Aidan Shilson-Thomas, 'Delivering Digital Courts For All' (Liberata 2019) <https://reform.uk/sites/default/files/2019-06/Delivering%20Digital%20Courts%20-%20Corrected.pdf> accessed 27 November 2019.

[6] ibid.

[7] Penelope Gibbs, 'Putting Users At The Heart Of Change' (Liberata 2019) <https://reform.uk/sites/default/files/2019-06/Delivering%20Digital%20Courts%20-%20Corrected.pdf> accessed 30 November 2019.

[8] Ibid.

[9] Ibid.

[10] 'Transforming Courts And Tribunals - Committee Of Public Accounts - House Of Commons' (Publications.parliament.uk, 2018) <https://publications.parliament.uk/pa/cm201719/cmselect/cmpubacc/976/97605.htm> accessed 22 November 2019.

[11] Ibid.

[12] James Mathew 1830–1908 Irish judge: R. E. Megarry Miscellany-at-Law (1955) as cited in Susan Ratcliffe, Oxford Essential Quotations (4th edn, Oxford University Publishing 2016). 

[13] 'Justice Committee - Weekly Update - News From Parliament' (UK Parliament, 2019) <https://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/news-parliament-2017/update-12-july-17-19/> accessed 1 December 2019.

[14] Bryan R, 'Innovating The Bar: Digitisation Of The Courts | Legal Insights Europe' (Legal Insights Europe, 2017) <https://blogs.thomsonreuters.com/legal-uk/2017/05/04/digitisation-courts/> accessed 20 November 2019

[15] James Mathew 1830–1908 Irish judge: R. E. Megarry Miscellany-at-Law (1955) as cited in Susan Ratcliffe, Oxford Essential Quotations (4th edn, Oxford University Publishing 2016). 

About the author:
Rebecca Ludden is a second-year law student at the University of Warwick. Her research interests are primarily Family Law and public legal education. She hopes to pursue a career in diplomacy, currently looking towards the Foreign Office. 

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