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March 20, 2016

The holy grail of the digital court

Judges and HMCTS staff seem to have put their faith in digitisation to resolve most of the problems besetting our courts.  Digital courts will mitigate a lack of resources, the closure of local courts and court delays.  I can see the benefits of digitisation, and the most thoughtful of our senior judges Lord Ryder, the President of Tribunals recently gave a speech ‘The Modernisation of Access to Justice in Times of Austerity’ in which he suggested that our courts system is still in the Victorian age but that “justice, and access to it, should lie at the heart of the community”.  He sees digitisation as a means to create “a much simpler system of justice, with the judiciary at it’s heart, citizens empowered to access it, using innovation and digital tools to resolve these cases quickly, authoritatively and efficiently”. He realises that we should not be simply replicating our current system digitally: “digitisation presents an opportunity to break with processes that are no longer optimal or relevant”.  So far, so good. But the reality of the actual digitisation of criminal courts so far, and the planning, don’t meet his vision.

One of the first moves in the digitisation of the criminal courts has been to put all case files online.  All the professionals involved in the case have access to the files via a secure email system. But this week the twittersphere was alive with lawyers bemoaning the break down of this new email system. The MoJ wrote that “There has been a growth in usage of the service over the past few months beyond what was expected and over the last couple of months demand has outstripped the capacity of the service”. Criminal lawyers are not very sympathetic to MoJ problems at the best of times.  On this they were scathing.  As bloggers like Tuesday Truth and crimbarrister pointed out, all criminal practitioners had been instructed to register for the secure email service, so it was odd for the MoJ to suggest that usage was unexpectedly high. And crimbarrister also complained that even when the system was working “THE SYSTEM TAKES AN HOUR TO UPLOAD A ONE-PAGE DOCUMENT AND APPEARS TO HAVE BEEN DESIGNED BY THE FLINTSTONES!”  The MoJ has now said that practitioners should use a POP3 email system, which may be insecure and/or print off all documents at their own expense.

Suffice to say that one of the cornerstones of the new digital criminal courts system seems to have fallen at the first hurdle. And to have been designed for the wrong capacity.  This does not bode well for the good use of the millions of pounds allocated by the Treasury to the wider courts digitisation programme.

I hope this is just a teething problem, but the design of new digital case file system does also symbolise a wider problem about the digital courts programme – one hinted at by Lord Ryder.  I’m not convinced that the needs of court users have been integral to the design of the programme.  At least 10% of all defendants in magistrates’ courts are unrepresented.  In traffic cases the proportions are much higher. Unrepresented defendants need the case files too, and many would prefer to see them online.  But unrepresented defendants are totally excluded from the new system.  If the system works OK, they will receive all the files they need in hard copy by post.  But evidence from the courts suggests that unrepresented defendants often don’t receive any papers at all, and arrive at court having seen nothing of the evidence or the prosecution case.  Getting them papers causes delay.

So the whole new digital file system has been created without taking into account the needs of a significant minority of potential users.  In an ideal world I would urge HMCTS and MoJ to step back and really assess how the whole courts system could be redesigned digitally to better meet the needs of users. This is what Lord Ryder is suggesting – that the redesign comes before the digital tools.  But I fear that the government is under such pressure to improve the chaos in the courts, that they will redesign existing systems rather than radically redesign the system.