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Online justice: why courts should explore emerging digital possibilities

The Guardian // 12th February 2017
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Powered by Guardian.co.ukThis article titled “Online justice: why courts should explore emerging digital possibilities” was written by Louise Tickle, for theguardian.com on Monday 16th January 2017 06.31 UTC

People in all societies have disputes. In advanced legal systems the dominant approach to resolving them has been to instruct lawyers and appear before courts. But with the internet, advanced hardware and cutting-edge software coming on-stream, the days of fetching up in front of a judge with bulging case-files are beginning to change – though rather faster in some parts of the world than others.

Professor Richard Susskind, IT adviser to the UK lord chief justice, argues that there are four compelling reasons why courts should explore the emerging digital possibilities. “The system is costly for users; it’s usually too time consuming and disputes take a long time to resolve; it’s largely unintelligible; and it also seems out of step in the internet society,” he says. “Citizens have a growing expectation that services will be delivered digitally.”

The most visible problem – piles of paperwork that are hard to reference and often even harder for the parties to access – has now been solved in the higher criminal courts in England and Wales, which completed the transition to fully digitised evidence files in April 2016. Civil courts in England and Wales, however, have not yet made that leap, and though a government consultation is being held (pdf) on an fundamental rethink of how civil justice is delivered, many other countries are far further ahead with their e-justice revolution.

Turkey, which won the UN’s public service award in 2012, now has a national electronic service across all its judicial functions. Lawyers and citizens can examine files, pay application fees, submit their documents and claims and file cases electronically to any court in the land. As a case progresses, they can access all relevant information and learn the day fixed for the trial without checking with court staff by phone or in person.

Turkey’s transformation of the data aspect of its judicial system has resulted in a service that is faster, more transparent and more cost efficient, said judge Servet Gul, head of information technologies at the ministry of justice, speaking at a UN meeting. Advanced video conferencing facilities also mean there is less need to transfer prisoners to court. The system has nearly 2 million users, had led to savings of $100m and has created a virtually paperless working environment, so is greener, too.

In Australia, the federal court was the first judicial setting to put in place electronic court files, and is now seen as global leader in how to manage digitised court documents. Australia is now moving on to upload all administrative records in its various registries.

While the US is clearly an altogether bigger and more diverse jurisdiction, many state courts there are also on their way to become paperless, “with an obligation for lawyers to electronically file documents that judges can access via laptops and other devices,” explains Dr Judith Townend, director of Information Law and Policy Centre at the Institute of Advanced Legal Studies, University of London.

In addition, she observes, the US supreme court is planning to introduce full electronic filing of different types of motions and applications, with free public access to these materials on the court’s website – though it seems that once bedded in, paper filing will still be required, which will perhaps somewhat frustrate the intentions of modernisers.

Countries that lag behind in efforts to reach a more streamlined, accessible online judiciary are often struggling not just with the upfront costs of investment, but have not yet convinced lawyers and court clerks who are deeply entrenched in the minutiae of existing protocols that there could be another way of doing things.

Training can be an issue, as it requires judges and lawyers who may already be overstretched to take time out. There can also be capacity issues. In India, for instance, there is only a single training centre working to support professionals wanting to learn more about the practice and principals underpinning the delivery of e-courts.

But novel approaches are also being tried to kickstart a more fundamental transformation of the way justice is delivered. Online dispute resolution systems developed by tech companies such as eBay and Nominet have inspired some countries not simply to substitute electronic documents for bundles of paper, but to replace the physical courtroom with a judicial service operated over the internet.

Earlier this year, British Colombia in Canada launched the nation’s first ever online civil tribunal aimed at allowing citizens to resolve small-value property and land disputes: initially voluntary, it will soon be made mandatory. For cases involving sums of less than $25,000, the benefit is that applicants can now avoid a pricey trip to the supreme court where legal costs could easily end up higher than the sums in dispute. According to the Vancouver Sun, the pioneering system includes party-to-party negotiations. “If that fails to reach an agreement, there is a facilitation phase akin to mediation, and, finally, an adjudicator can make a ruling with the same force as a court ruling.”

In Pakistan, writing about the online case management system introduced in the high courts of Islamabad and Lahore, lawyer Taimur Ali Khan Mohmand points out that digitising case files is only a very basic first step on a journey that, he believes, should see fully automated and digitised e-courts introduced across the country, with trials conducted over Skype. An electronic judicial service, he suggests, would not only stamp out corruption would also improve the justice system to make it more accessible for those who live far from legal centres or who struggle to afford the costs of seeking justice.

Though it may not be surprising that countries such as Pakistan and India are struggling with some aspects of modernising their judicial service, Townend says the UK too is “far behind” similarly developed countries such as the Netherlands, where the ministry of justice and security has created a service that offers automated legal guidance through matrimonial disputes including divorce and matters of custody and maintenance.

There are inherent risks when asking people to rely on an electronically-delivered judicial service at what is likely to be one of the most stressful points of their life. Trust in a system is vital. Governments will need to anticipate concerns that the critical quality of human judgment could be lost, and that citizens will end up being processed through anonymous online pathways that are as alienating as many of the dispute resolution services used by large corporates.

Challenges to a more modernised, digitised judicial system also include the potentially negative attitudes of professionals working within it, acknowledges Susskind, who highlights that “the question of execution” is also critical.

Talking about his hopes that the UK will soon take the leap to instigating a fully online civil dispute resolution system, Susskind says that what’s needed to achieve success is “to move away from the idea of a blueprint, to being more incremental”.

Large government IT contracts, he observes, do not have a happy history, and so making each advance a modular step that is thoroughly tested before the next one is taken will go a long way to allaying fears both within the notoriously risk-averse legal profession, as well developing faith in users that their case will be heard fairly, and that justice can truly be done.

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