With the creation of the online court, the principle of open justice must not be overlooked, said Lord Justice Fulford, giving the annual University of Sussex Draper Lecture 2016 at the Law Society on Tuesday, 8 November. Justice, he said, must not “disappear down an Alice-style rabbit-hole”. But it soon became clear to many in the audience that the question of public scrutiny and reporting of the online courts was very much an afterthought.
Paul Magrath was there and provides this account of the talk based on his notes. (Update: watch the video on YouTube.)
Lord Justice Fulford (pictured) began the evening by indulging in a brief nostalgic view of a lost world that was now slipping out of view. It was a world symbolised by the pink (or white) ribbon with which slender bundles of documents had been held together in a practice stretching back to the sixteenth century. A world of horsehair wigs and gowns of stuff. There were judges of his generation, he said, who had been brought up solely on paper, who had begun their careers before the advent of the photocopier, when copies had to be typed in triplicate or made on roneo machines, leaving ink all over your fingers.
Although that might seem like a lost paradise now, many judges still worked in essentially the same way. Because of a chronic lack of investment, the judiciary remained rooted in practices recognisable from 300 years ago. However, the slender bundles tied in ribbon were now cardboard boxes full of paper. The amount of paper had simply become unmanageable. The amount of electronic material on laptops was huge. There were “mountains of costly nonsense” in Dickens’ phrase.
Now, however, those traditional ways of working were about to disappear for ever. The conduct of litigation was going to catch up with the world in which users booked holidays online and bought books from Amazon. It was a clever and bold idea, a profound revolution, for which the funding (some £738m) had finally been provided.
Under the new system, every case would be (i) initiated, (ii) progressed, (iii) case managed and (iv) decided online. All papers would be electronically filed. Information would only need to be keyed in once, and then re-used and passed onward in digital format. Cases would be bundled and stored electronically, and shared with other agencies or parties electronically. The aim was to remove all paper from the operating process. No couriers. No problems with photocopiers. No lost files.
All judges had now moved onto a cloud-based system called e-judiciary, through which they could access email, use Office 365 software and access the internet for legal research from anywhere. All the judges had been issued with laptops. All magistrates now used iPads to manage their rotas. In ten months’ time, all the Crown Court judiciary would move to a paperless Digital Case System, using digital bundles to manage cases. Most of them loved it and some had described it as “brilliant”.
Building on its success, civil and family courts would follow. Court users would no longer need to lug bundles to court in their car or await their arrival by post. Instead, an online portal would give them access via the cloud.
Of course, all new systems experienced irritating gremlins, but these were minor and remediable. It was important to get the system right. The greatest lesson that had been learned in the early days was the need to consult at every stage, and to build the system together. The development team were now obsessed about talking to users.
The development provided an opportunity to rip up the rule books — the procedural barnacles that had accumulated over the years, with all their “refinements of complication” — and to provide a simpler set of rules appropriate for the online court. In crime, for example, it turned out that a lot of the pretrial hearings could be replaced with a few phone calls or done online.
Hearings in court should take place only when necessary and proportionate. Otherwise they should be conducted online. That raised the question of open justice. The question was how to make the hearings accessible to the public. With orders of the court being issued straight from a laptop, any interested member of the public needed to have access to what was decided. Justice must not disappear down an Alice-style rabbit-hole.
One option being considered was to provide viewing centres in public buildings. But this was early days and they were still looking for imaginative solutions.
Finally, his Lordship wished to reassure the judiciary that there would be no judicial redundancies as a result of these reforms. The Cyber Judge of the title was a joke, though it had not been appreciated as such in a previous lecture. There was no such thing as a robotic court that would put judges out of business. The true revolution would be in the simplification of the process. Despite the increasing use of algorithms and machine learning techniques, for example in predicting risks or outcomes based on analysing bulk data, every decision respecting a person’s substantive rights would still be made by a judge.
As Lampedusa had observed in his novel The Leopard, we have to change in order to keep things the same. Thus we must change root and branch, in order to preserve all the essential elements of an excellent system of justice — which is run by and on behalf of human beings.
Q and A
Following the talk, there was time for a few questions. Professor Chris Marsden of the University of Sussex law school raised again the question of open justice and asked whether any thought had been given to making judgments available to law reporters and publishers such as ICLR.
Fulford LJ admitted that in developing the online courts they hadn’t really focussed any attention on this. He recalled the difficulty he used to have in the old days of accessing Court of Appeal Criminal Division transcripts via the court office, in the pre-internet era, which now seems extraordinary. Times had changed – there had been a revolution in making judgements available to the public. So his guess was that with the online court, as part of the process of making everything public, that would include the judgment.
Another aspect of transparency touched upon — in response to a question from the floor — was that of the algorithms. Should they not be subject to public scrutiny, to ensure the system was fair and accountable? Unfortunately my notes don’t record the answer, if any, given by the speaker. However, it is a hot topic, as algorithms are increasingly deployed by or on behalf of public authorities, and very often developed or managed by private enterprises.
The robustness of the servers against the risks of hacking or Distributed Denial of Service (DDOS) attack was also touched upon. The recent experience of Tesco’s banking arm had not been reassuring. His Lordship said there would be backup servers.
It is clear from as much of Lord Justice Fulford’s talk as I have been able to capture, and from his answer to Prof Marsden’s question, that little thought has been given either to the idea of open justice, or to any equivalent, for the online court, of the press bench and public gallery in a traditional bricks-and-mortar courtroom.
This is a major oversight, and one about which ICLR, as official publishers of The Law Reports, should be very concerned. It may be the case that, initially at least, any hearing involving a substantive point of law, particularly if the law itself is in dispute, will take place in a physical courtroom to which law reporters will have access, so they can follow the argument as well as recording the judgment. But that may not continue to be the case.
Some consultation has been conducted in respect of the likely impact of the online courts on different types of court user; but the interests of reporters and public access to information do not appear to have been adequately considered or consulted upon and that is something that needs to be put right before it is too late.
It occurs to me, thinking about Fulford LJ’s idea of viewing centres in public buildings, that an ideal location might be the old Wednesbury Gaumont cinema at the centre of one of the most famous reported cases (on judicial review), Associated Provincial Picture Houses Ltd v Wednesbury Corpn  1 KB 223, CA. It seems the old cinema has fallen into disuse: see this earlier post from our Case Law on Trial (ICLR Vote) series. Might this be a perfect opportunity for the Ministry of Justice to acquire a piece of legally historic real estate and put it to good, transparency-compliant use?
This post was written by Paul Magrath, Head of Product Development and Online Content at ICLR, who also tweets as @maggotlaw.
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