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November 11, 2017

Click here to plead guilty – the latest on online courts

It has gone a bit quiet on the online criminal court front. The Queens’ Speech in June announced a Courts Bill which would “enable those charged with some less serious criminal offences to opt to plead guilty, accept a conviction and pay a statutory fixed penalty online which will free up court time for more serious cases”.  But it is not clear when the Courts Bill will be tabled, or whether, as well as online criminal convictions, it will include previous proposals to introduce online pleas (admissions of guilt or innocence made on a computer/tablet/mobile phone).

But it’s worth reviewing what is happening and some recent concerns expressed about digital reform. HMCTS has said it will “digitise the single justice process [where magistrates deal with low level offences on the papers in a closed court] in Lavender Hill for Transport for London fare evasion cases to include TV Licensing and DVLA cases enabling greater numbers of high-volume, low-level offences to be dealt with more efficiently”, and they are improving their existing system for making online pleas for traffic offences. And for civil offences HMCTS have launched, or are about to launch online divorce, probate, civil money claims and social security appeals.

One of my greatest concerns is about the democratic accountability of these reforms. Most have not been subject to public consultation, and none to active parliamentary scrutiny. If legislation is necessary, I presume the government have used secondary legislation. HMCTS have made huge efforts to engage people they know or know of – to invite them to events, and set up online forums. But, in the end, this type of consultation is not transparent, and is not open to all. The beauty of public consultation is that anyone can respond. Often public responses are ignored (as in the recent consultation on criminal litigators’ fees) but at least the questions are explored, and the analysis of responses published.

MPs and peers may not always be that thorough in scrutinising legislation (eg they missed the criminal courts charge) but, given the opportunity to do so, their scrutiny usually results in vastly improved legislation. The current revolutionary and costly digital court reform programme appears to be by-passing primary legislation altogether. And HMCTS are mostly communicating what they are doing, not asking experts and others whether the reform plan is a good idea. Because there is no parliamentary process, there is little media scrutiny and few outside the world of criminal law know what is going on.

I am not the only one with concerns. Dame Hazel Genn, one of the most admired legal academics in the country, gave a lecture on this subject recently. She mainly focused on civil justice but her concerns are applicable across jurisdictions. I can’t do justice to this as yet unpublished lecture (see this storify for more) but would highlight her concerns about the way the digital court programme is being evaluated and researched:

“I am aware that HMCTS have been engaging in ‘user’ testing and that a group of advice organisations have been advising about how best to adapt processes to be accessible. Testing and development has to be a continuous and iterative process involving a wide range of potential claimants and defendants and those who advise. And the objective of testing and evaluation should go beyond usability, and address questions of perceptions of procedural fairness, comprehension of the significance of procedural steps, and substantive outcome”.

I would add that it would be good if HMCTS could publish their research methodology, how it is being applied, the contracting process for researchers, and the outcomes of that research.

Dame Hazel also questions how the new digital and virtual processes will affect trust in the system: “the critical factor shaping popular legitimacy of the justice system is an evaluation of the fairness with which the courts exercise their authority. Being seen as fair involves transparency in procedures, conspicuous impartiality and consistency, explanation of rules and decisions, and the promotion of procedures that give parties a voice in the proceedings”.

Malcolm Richardson, departing Chair of the Magistrates’ Association, voiced similar misgivings this week in relation to online criminal convictions, which would see defendants convicted “without any judicial involvement at all. In our view, this would be a step too far. Our justice system requires verdicts and sentences to be given by an independent, impartial judiciary. How can we build society’s confidence in a justice system they can’t see?”

The senior judiciary, HMCTS and the Ministry of Justice are sincere in their wish to create a better justice system for users. But by prioritising convenience and ease of access, they may be jeopardising some of the fundamental principles of our justice system.  I hope they are not, but the lack of democratic accountability and transparency surrounding the project means that it has not been subject to the rigorous challenge any reform programme needs.

NB I have written a summary of progress on online criminal court processes – if I have got anything wrong do let me know.