How can justice be “seen to be done” in an online system?
The government is proceeding hell for leather with online justice both in the civil and criminal spheres. This week it published a response to its consultation on aspects of the “Transforming Summary Justice” programme. Foremost amongst these is a considerable extension of the system for online criminal justice. Currently this is only available for a small number of motoring offences. The idea is to expand the online system so a range of non imprisonable offences (where the defendant pleads guilty) can be dealt with entirely online.
I have several concerns about the proposals, but some of the devil is in the detail, so we need to wait. My greatest fear is about something where we have no information – whether listings and convictions will be published online with full public access. The government’s response is vague: “In relation to transparency, we are currently developing a solution which will ensure that the principle of open justice is maintained as we move to digital channels. We will ensure that all interested parties, including victims, witnesses, the public and the press, will have access to case listings and outcomes where appropriate.”
The current situation is that nearly all criminal hearings are open to the public, except those of under 18 year olds. Anyone can wander into a magistrates’ court, look at the listings, and observe the court cases. Members of the press or public can publish details of cases they have observed, including names and (?) addresses. But few cases are in fact observed, let alone written about. This is worrying, since lack of information perpetuates ignorance about the system and facilitates minor miscarriages of justice (such as the misuse of the secure dock). Open justice where justice is seen to be done, as well as done, is a core principle of our system, which I espouse. Courts should look and feel more open, and far more information should be available to visitors.
How to translate open justice principles in the online sphere is a conundrum. So far my understanding is that the proceedings of the online traffic offence system are not open at all. But if online justice is extended what then? The government has said it will give the public access to listings and outcomes “where appropriate”. So the easiest option would be to publish everything online. This would align England and Wales with USA, where information about criminal convictions (except in the case of children) is freely available, but distance it from nearly all European countries which forbid publication of criminal convictions. I have a number of concerns about any proposal for the government to publish all these convictions online:
1) All research on rehabilitation says stigma and labelling are some of the biggest barriers to people moving on in their lives. And there is no evidence that the prospect of being “named and shamed” is an effective deterrent to crime. This underlies the Spanish approach: “while Spanish law treats a criminal defendant’s past convictions as relevant for sentencing, it does not recognize shaming as a legitimate anti-crime or deterrence strategy; indeed, Spanish jurists ﬁnd that idea appalling . The preference for keeping an individual’s criminal history conﬁdential is reinforced by Spanish law’s strong commitment to rehabilitation as the primary goal of criminal sentencing”. It is a key purpose of sentencing in England and Wales too.
2) Safeguards on ongoing publication of information will be impossible to enforce. Under the rehabilitation of offenders act, information about any conviction that is “spent” (ie the legal rehabilitation period has expired), should not be published – unless there is a very good public interest reason. So any government published information about convictions will need to be time limited. But social media and newspapers websites are already littered with information about very old convictions. Most people with convictions probably don’t even know this labelling is (in most cases) illegal, and the media are hardly ever sued for it. But if information on convictions is freely available online, people will be able to screenshot it, or simply photograph it, and keep it for ever. This is likely to lead to information about thousands more convictions being available online. Abuse of the information after the rehabilitation period is likely to be rife, and the law will be both unenforced and unenforceable.
3) If personal information including address and birth date of those with convictions is published, this could compromise the safety of individuals, particularly from fraud.
4) What about equity? If those who pleaded guilty online have all their details published online, but those who go to court and are found guilty in person do not, is that fair? This is not an argument for publishing more convictions online, but an observation that this may discriminate against those using the online system.
5) Open justice can be achieved in an online world without open online publication of convictions. I understand the argument that the public should have the opportunity to “observe” criminal cases, but this could be achieved through making listings and outcomes data available on a computer terminal in the magistrates’ court on the day the guilty plea is entered and the day the case is resolved. This would enable anyone who goes to the court to get the relevant information.
Does the public have a right to information online about criminal convictions? I think not. They have a right to attend court to find out about criminal convictions and to observe hearings. But Transform Justice, and all European countries, feel the harm of open online publication overrides any benefits.