The digital drive

Catherine Baksi considers whether lawyers, judges, courts and clients are ready for a digital revolution, the drivers for change, and impact on access to justice

Bulging briefs tied with yards of pink tape and clerks struggling to control errant trollies laden with storage boxes containing dozens of lever arch files – this traditional view of English courts business is to be confined to the history books.

The government wants to introduce paperless, or ‘digital by default’ working in the civil and criminal courts. It committed £675m of IT investment to the court service in the last public expenditure round. As courts are being closed, ministers and judges are looking for alternative ways to solve people’s legal problems, including online dispute resolution and pop-up courts. But are lawyers, judges, courts and clients ready for a digital revolution and what impact will it have on access to justice?

Criminal courts

The key driver for change was the 2010 Spending Review, which required the Ministry of Justice (MoJ) and those under its umbrella to slash their budgets by almost a quarter.

In 2011 the then Director of Public Prosecutions, Keir Starmer QC, outlined his vision of the future to the London Justices’ Clerks’ Society: ‘A prosecutor comes into your court carrying only a laptop. She opens the laptop and begins to prosecute the list. No papers are passed up to the Bench; nor to the defence: both have already received all relevant material electronically and are working from their own computers. At the end of the session, the results are sent electronically back from court to the CPS office, the witness care unit and the police immediately after completion of the case’.

The vision, which he suggested, was neither ‘fantasy’ nor ‘far-fetched’, but a ‘possibility’, was further outlined in the 2013 Transforming the Criminal Justice System paper.

On the imperative for change, justice minister Damian Green, said: ‘Every year the courts and Crown Prosecution Service use roughly 160 million sheets of paper. Stacked up this would be the same as 15 Mount Snowdons – literally mountains of paper.’

The CPS, HM Courts and Tribunals Service (HMCTS) and the Association of Chief Police Officers have led the MoJ’s Criminal Justice System Efficiency Programme, which has digitalisation at its heart. Last summer, the first trial took place where jury bundles were presented on i-Pads – an illustrative example was reported in Counsel (see ‘Trial evolution’,Counsel, December 2015). An HMCTS spokeswoman says the agencies ‘remain on track to deliver a fully-connected digital courtroom by 2020’.

CJS initiatives

To achieve that digital dream, she pointed to initiatives under way:

  • Wifi in the crown and magistrates’ courts – allowing lawyers to access the internet.
  • Data store– introduced in magistrates’ courts to allow automated receipt of case paperwork from the CPS, access for secure users and improved data housekeeping and archiving.
  • An in-court presentation solution for the crown court –introduced at a number of sites to allow trial documentation to be shared by all parties.
  • Digital in-court presentation equipment in the magistrates’ courts – to allow presentation of digital data, such as CCTV, direct from parties’ laptops.
  • Crown Court Digital Case System (CCDCS) – a web-based digital document tool, due to be rolled-out nationally by 31 March 2016, but still being implemented.
  • Expansion and upgrade of video links – to reduce transport costs.
  • The Common Platform Programme– allowing all parties (defendants, victims, witnesses and professional users) to manage cases online, is currently being piloted.
  • Online plea – enables defendants to respond online to police prosecutions for minor road traffic offences. The courts are preparing for national roll-out in 2016/17 for non-imprisonable offences, as an alternative to postal responses.
  • Digital mark-up – being rolled out in 2016/17, to enable magistrates’ courts to put the outcome of cases onto the court IT system instantly.

Mixed views

Practitioners’ views are mixed on the success and desirability of some of the reforms. Supporters say they are long-overdue, while others point to IT failures, the cost of maintaining systems and concern that increased digitalisation may reduce access to justice for some.

The Criminal Bar Association has been gathering evidence about common problems by practitioners. By way of example, one barrister cited the delay caused by a computer jamming after the completion of a plea & trial preparation hearing. While the problem was sorted out, the judge rose and court staff telephoned the DCS help desk, but were held in a queue. No further cases in the list could be progressed, and a courtroom of counsel, defendants and witness were kept waiting.

Paul Keleher QC, who chaired the Bar Council’s working party on court IT, says ‘paperless working is an excellent idea with a promising future,’ but there will always be teething problems and he admits finding pen and paper easier when on his feet.

Doing away with paper altogether, he suggests, would be ‘impracticable and pointless’ as most advocates and juries will always find it helpful to have a hard copy of the core bundle and some exhibits will need to be produced in paper form. Technology, he adds, should be the ‘servant, not the master’.

A joint report from HM Chief Inspector of the CPS and HM Inspector of Constabulary found that while ‘substantial progress’ has been made in establishing a modernised digital criminal justice system, the ‘vision of a digital end-to-end system’ is ‘still some way from becoming reality’.

Its report, Delivering Justice in a Digital Age, says the move to paperless working has been hampered by some ‘out-dated’ and ‘fragmented’ IT systems, that do not ‘talk to each other’, and an uncoordinated approach.

While 92% of cases are sent from the CPS to the police electronically, it says a reliance on manual processes to input information results in ‘numerous clerical mistakes’ and wasted cost.

Despite significant public funds being invested, the inspectors found ‘little evidence’ of identified financial savings, or positive impact on victims and witnesses. They also questioned how the ‘digital age embraces the unrepresented defendant’.

More positively, the Lord Chief Justice, Lord Thomas of Cwmgiedd, told the House of Lords Constitution Committee in April that progress has been ‘good’.

He acknowledged that court IT projects have in the past been ‘disastrous’ but said the current programme is enabling judges to do all the interlocutory work in criminal cases online.

‘Going into a pre-court listing room and finding there is no paper there is wonderful,’ he said, in ‘complete contrast to the civil courts… If you were to go to the Central London County Court, every bit of floor space is covered in paper.’

Civil justice

And those paper-strewn civil courts are set for an even more radical overhaul. Last February the Civil Justice Council, backed by the Master of the Rolls, Lord Dyson, called for the creation of an eBay dispute-resolution-style online court to resolve claims of up to £25,000.

In December, Lord Justice Briggs, said the idea was the ‘single most radical and important structural change’ in his interim review on civil court reform. He said it will enable civil disputes of ‘modest value and complexity’ to be justly resolved without the ‘disproportionate cost of legal representation’.

Cases would be dealt with in three stages, beginning with a largely automated, interactive online process to identify the issues and lodge documentary evidence, followed by conciliation and case management by case offices, before resolution by a judge.

Writing in April’s edition of Counsel, Lord Briggs provided an update on the likely impact of his proposals, prior to his final report, which is due in the summer (see ‘The Online Court’,Counsel, April 2016). As a measure to aid access to justice when high court and lawyers’ fees are putting justice ‘out of reach’, Lord Thomas backed the plan, together with the idea of holding courts in pubs, town halls and hotels.

But practitioners have raised concerns that lawyerless courts will have the opposite effect, particularly for the vulnerable. Bar Council Chairman, Chantal-Aimée Doerries QC, ‘fully’ supports modernisation, increased efficiency and increased use of technology, but fears online resolution might create ‘two-tier’ justice. ‘I strongly favour retaining a system where parties have the right to have their disputes resolved at, or following, a hearing by a judge, where the parties have legal representation, if they choose to do so, and are able to recover reasonable costs,’ she asserts.

But in his lecture The Modernisation of Access to Justice in Times of Austerity earlier this year, the Senior President of Tribunals, Sir Ernest Ryder, gave the idea a massive judicial thumbs up.

‘Like the citizens it serves, justice can be delivered in many ways… in modern hearing rooms, or in mental health hospital units, community halls or remote locations; by video links, on laptops, tablets and smartphones, and online.’

To serve the needs of a 21st century society, Ryder stresses that the justice system ‘must be digital by default and design’. He cites examples of where progress has already been made: the majority of new employment tribunal claims begin online; immigration and asylum appeals can be issued through an online portal; and Money Claims Online has been in operation since 2001.

He insists that digitalising frontline processes when a civil servant still has to print e-forms and make a paper file, is not enough and almost goes back to the ‘Dickensian model of justice via the quill pen’.

Ryder wants to see an entirely online court, like the Michigan Cyber Court, created in 2002. The US venture failed, he says, because it was ahead of its time. In 2002 the idea of a digital or cyber court, he says, was something ‘more at home in Star Wars or Star Trek’. But: ‘The view from today is markedly different. It is an idea that is in tune with the zeitgeist.’ Indeed, he is to trial a digital, paperless process in the Social Entitlement Chamber.

The judge takes an inquisitorial, problem-solving approach and unless a hearing is needed, for example to determine a credibility issue, the matter is decided without a physical hearing.

‘Digitalisation,’ says Ryder, ‘presents an opportunity to break with processes that are no longer optimal and create one simplified, seamless system of justice, with a single entry point and, as far as possible, amalgamate the rules and processes.’

‘Not one size fits all – but the right size for the right case – delivered through the right process.’

Contributor Catherine Baksi is news editor of Counsel and a freelance legal journalist

DIGITALISATION IN PRACTICE

Benefits

  • ability to search all the case paperwork
  • not having to carry around dozens of lever arch files
  • ability to access case papers anywhere
  • instantly showing the jury a map or even a street view on Google maps
  • showing the jury photographs without printing out dozens of copies
  • instant communication by email in court between all counsel and the judge to transmit documents

Common problems

  • laptops too old or too full to work properly
  • insufficient familiarity with new court software
  • lack of experience working with digital documents
  • not signing up for secure email in good time
  • not registering to use CCDCS before getting your first case
  • not registering to use WiFi and unfamiliarity with it

 

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Catherine Baksi

Catherine worked as criminal and immigration barrister before becoming a journalist. Previously a reporter at the Law Gazette, she is now freelance and writes for a range of legal publications including Counsel.