Lost voices in the process of courts digitisation
Digitisation of courts processes is fundamental to providing efficient and equitable justice in the 21st century. This does not mean that all physical events (such as courtroom hearings) should necessarily become digital ones, but that the justice system is supported by digital technology that is reliable, accessible and cost-effective.
At times, the Ministry of Justice (MOJ) and its executive agency, HM Courts and Tribunals Service (HMCTS), may have felt a little bruised by some of the criticism levelled at the current reform programme gradually being tested and rolled out; Parliamentarians, members of the profession and civil society groups have not held back from raising concerns about the impact of digitisation on the delivery of justice.
It is quite right, however, that the reform programme is scrutinised and open to robust challenge from a range of court users. In particular, there’s a need for scrutiny of the commercial interests at play and the cost effectiveness and dependability of privately contracted consultancy and technology services.
The danger of the current approach is that quieter, less articulate or unrepresented voices are overlooked; in particular, individual litigants in the civil and family courts (especially those who are self-represented), and witnesses, victims, defendants and their families and friends, in the criminal courts.
This is where empirical socio-legal research, ideally independent, is critical: in identifying the needs and vulnerabilities of court users and developing technology to be supportive rather than obstructive – and above all, fair.
Another missing voice is that of the ‘public’. Who speaks for the wider public interest in the proper functioning of justice? The mainstream media has taken a sporadic but generally muted interest in digital justice reforms and when policy interventions have been made, they have often focused, understandably, on issues pertaining to the news industry and journalists, rather than other types of court users and observers.
While the press plays an important and vital role in safeguarding justice, it is not the only watchdog around, and does not necessarily represent all public views. While there have been several public consultations initiated by HMCTS, with Judicial support, the views of the wider public have been neglected.
None of the consultations to date have explicitly asked the general public, media and civil society, about their views and experience of observing and accessing the courts. How should justice be observed, recorded and reported in physical and digital contexts? Should the data generated in the courts processes be published wholesale and freely online, or should some access restrictions apply? What should ‘open justice’ look like in digital environments?
These are among the questions that I and others have been grappling with for some time, which are problematic from a philosophical perspective as well as legal and practical ones. Behind the scenes, and with the media, the Ministry of Justice is also considering some of these issues and, in my view, it’s vital that proposed models for the future handling of courts data are opened to public consultation.
Finally, in introducing innovative technologies across the different jurisdictions (civil, criminal, family and tribunal), ethics must be at the core, using tools such as a Data Ethics Canvas, which helps manage ethical issues arising from data collection, storage and sharing. A core principle should be that new digital models prioritise the public good, rather than private gain.
It’s of course important to think about justice reform in terms of legal principles, to ensure that new mechanisms uphold the rule of law. But ethics are crucial too, in remembering the human impact of the tools wielded by the state and judiciary in the pursuit of justice.