It is a great honour to have been invited to Edinburgh to give this Fourth Annual Lecture.
Hadrian’s Wall
I have called to-night’s lecture ‘IT and the Courts on both sides of Hadrian’s Wall: the next ten years’ because I am very conscious that we have each got a lot to learn from each other. There are many things which are possible in a small jurisdiction that are much more difficult to achieve in a much larger jurisdiction. I have never felt at all parochial about things like this. Nobody could have grown up in a political family as I did without being very aware over the last 40 years of the strength of feeling in Scotland, Wales and Ireland that England isn’t the centre of the universe, and that fairly strong measures of decentralisation were needed. I’m not sure if I have very much Scottish blood, but I have a lot of Welsh and Irish blood, and although I was born in London, I have never regarded myself as particularly English.
I hope that as devolution makes Scottish institutions stronger, we will be able to cooperate more than ever before in finding ways in which our courts on each side of the border can take full advantage of the IT revolution. I am very pleased that the new BAILII project, which I am helping to organise, is concerned with the laws of all our countries. The law of the Republic of Ireland, the law of Northern Ireland, the law of Scotland, the law of Wales and the law of England – and, to judge from recent suggestions, maybe the laws of the Channel Islands and the Isle of Man, too, all on a single site. This is the way we should be moving.
People object that not all that many people today have PCs with access to the Web, or know what to do when they have got there. My answer is that many people today have no idea of the power that IT possesses to provide the solution to concerns like this very quickly. I remember Richard Susskind telling me that most of us are now drawing down information from the Web as if we were drawing mains water through a drinking straw. Analog telephones translate everything through modems in and out of digital form at each end, and this slows everything down. The widespread use of ISDN lines and broad band technology and digital television can’t be very far away now. People will then be able to draw down the mains water through mains water pipes via their TV sets, and we simply won’t recognise all the tiresome technical problems we have been coping with over the last 15 years. In a few years’ time we will be able to draw down the information we need at quite astonishing speed.
South of the Wall
I will concentrate mainly in this part on the IT help we are developing for judges in England and Wales, because this is what I know most about. This is bound to affect the way our courts do their business. In turn, litigation lawyers will have to adapt to change in a very big way. My experience is entirely based on England and Wales. At a distance I have greatly admired the progress in Scotland. My visit to Parliament House and the Advocates’ Library showed me a number of things where you are ahead of us in London by a month or two.
To understand what we are doing for English judges at present, I will have to say a little about the past. We had something called the JUDITH Project in the early 1990s. This provided 400 of our 1,200 full-time judges with personal computers and word-processing and communications software. Another 120 were provided with communications software for their privately owned PCs. In January last year we started all over again, and more than 1,000 of our full-time judges and magistrates will have been supplied by now with more powerful PCs and more modern software. They will also have been given three days’ basic training. Because judges move from court to court, or from court to chambers to home and back again, their PCs are all portable laptops, with a docking station at their main base.
By next October all these judges will have been afforded Internet access, through a judge-friendly portal, to a mass of legal material, case law and statutes and commentary, on the World Wide Web. They will also be able to make wider use of legal CD-ROMs in their judicial work. For those who get hopelessly stuck, some extremely basic training is being organised by our Judicial Studies Board in the next long vacation. Although these developments have been driven by the need to give judges easy access to human rights materials, they have much wider implications. For instance, the transcript of every judgment in the two divisions of the Court of Appeal and the Crown Office List since 1996 will be immediately accessible online, wherever a judge and his/her laptop may be, unless they are in the jungle or on the open sea. At any one time we have about 16 courts sitting in those two divisions, so that this is quite a lot of judgments.
Networking the Courts
We are also addressing the challenge of networking the courts. A system called CREST has been in the Crown Courts since 1992, and some glorified typewriting arrangements called CASEMAN have been in our county courts since 1997. These have brought a measure of networking into courts’ back offices. The Royal Courts of Justice, where I work, were left out when these arrangements were introduced. The cable ducts are now in place even there, and all we need is the money to enable the cabling to be introduced. A secure intranet is bound to be available in the next few years, linking the Court Service with judicial users, and a court’s networks will include the judges of the court as well. Court users will have appropriately controlled access to the services they need, as they do now in all the United States courts where electronic filing systems have been introduced. This means that every litigation lawyer’s office needs to start planning now for the day when a great deal of their business with the courts is going to be transacted down the ISDN telephone line between computers.
What is just as important is that effective joint planning machinery has now been arranged to take this revolution forward. We have had some fairly tricky relationships in the last 20 years, and we have been devising much better ways in which judges and court administrators will be able to cooperate in future without prejudicing our independent status as judges.
Short-term reforms are being driven by a body called the Judicial Technology Group, chaired by Lord Saville, in which a representative group of judges has been meeting senior Court Service officials four or five times a year. Longer-term thinking on IT issues on the civil justice side is driven by a committee within the Lord Chancellor’s Department, which will produce its first report this summer. There is another body called IBIS struggling with incompatibilities between criminal justice organisations.
More importantly, Court Service Programme Boards are now in place for planning our medium-term future, and senior judges now sit on these boards. I represent the English judges on a board that is concerned with modernising the civil courts. A senior circuit judge who sits in North London, Judge Shaun Lyons, sits on an equivalent board on the criminal justice side. The terms of reference of that board are bound to be enlarged when Lord Justice Auld reports early next year.
The Future Needs of Judges
So far as judges’ future needs are concerned, Richard Susskind has told us of a number of areas in which greater use of well-tested IT would make things better. I will say a bit about each.
Document creation
First, document creation. More and more of us now produce our judgments on our own PCs. There are a few software incompatibilities at present, but they are bound to be ironed out quite soon. Voice-activated software will make a huge difference when it becomes more user-friendly than it is at present. Some of my contemporaries believe that keyboard skills are miles beyond them, but they are already beginning to talk to their PCs direct with remarkable results. To help with the production of documents, a standardised ‘judgments template’ is now being distributed to the clerks of all Supreme Court judges, and to every judge who asks for it. In a few years’ time a mass of macros and templates will be available to help with the task of writing judgments and with order production.
Communications and internal information resources
In the 1990s a system called FELIX introduced us to the world of electronic communications. In the next ten years FELIX will be superseded by a mass of securely firewalled conferences and electronic noticeboards within a future Court Service/judicial intranet.
This communications network has already proved to be very valuable. In the old days in practice, we used to wander into each other’s rooms to seek advice when we were confronted by a legal problem we couldn’t solve on our own. I remember that in the 1960s what we called personal injury ‘quantums’ often gave me an excuse to waste other people’s time. For judges, and particularly judges in small court centres, this kind of help is not available. However, they can now post up a cri de coeur on FELIX and be fairly sure of getting a number of well-informed answers within 24 hours.
Since last autumn I have been putting transcripts and summaries of Court of Appeal decisions on our new Civil Procedure Rules up on FELIX as soon as I receive them from Court of Appeal staff. Over 300 judges now access this service. There is always a worry about information overload, but this network is bringing benefits to our judges that were unimaginable ten years ago. We are planning a similar service for all our judges when the Human Rights Act comes into force in October.
Some of us already use communications software to enable the parties’ lawyers to send us skeleton arguments or witness statements or judgments online. I am doing this at the moment in connection with a very heavy commercial appeal we are hearing in two weeks’ time. Facilities like these, and facilities for giving online directions in simple matters, will grow and grow as more and more people appreciate their value.
Our Judicial Studies Board has already put a lot of practical information, like draft jury directions, on its Web site www.jsboard.co.uk. This will be available online to more than 1,000 judges before October. Judges with particular skills in this field are now working alongside relevant Court Service and JSB staff to prepare a range of electronic Benchbooks for the judiciary. Modern IT aids, like hypertext or dynamic document linking, will revolutionise a judge’s ability to move from textbook to supporting case or statute law and back again. This revolution is now spreading to our magistrates’ courts and tribunals too.
Document management
I use this term here to mean the ability to incorporate into one’s work the products of other databases. These may be legal materials, such as statutes or case law, or the produce of the current case – transcripts, skeleton arguments, witness statements and so on. In ten years’ time the courts are bound to possess their own electronic case file. The ‘statements of case’ or the indictments, the case management applications and orders, and the evidence on which they were obtained, the notices of appeal and the judgments under appeal will all be available electronically to everyone who has a ‘need to know’. Information will pass digitally between lawyers and advocates and the courts (and back again). The challenge for judges will be to learn how to access and move and handle these blocks of information.
In 1997, when I was at a conference in Washington, I saw a CD on which everything in a heavy patents appeal was available to the appeal judges on a single disc. All the evidence, including imaged photographs and plans, all the relevant case laws and statutory material, all the pleadings and transcripts, complete with hypertext linking. I think some of the material carried sound as well. I am sure that this sort of service must be arriving on our side of the Atlantic quite soon.
Case management
Here there are problems with terminology. ‘Case management systems’ are usually seen by our Court Service as a working tool for their back-office staff. They enable them to carry out their supporting role without the delays and expense (and the risk of lost files) which manual systems bring with them. Judicial case management support systems are different. One of the reasons why the development of IT systems to support the Woolf reforms got delayed was that we insisted, on Richard Susskind’s advice, that when we were building our new court systems we should be preparing this time the foundations of a 12-storey block, and not another bungalow. When these systems are in place in a few years’ time, a procedural judge will be able to access all the information he or she needs in a case without having to wait for court staff to produce a file in which all the documents have been placed back to front. Gaps in diaries will be obvious to the judge fixing a date for the next hearing; and court lists can be planned flexibly by a judge in a way that is not at all easy at present.
Courtroom technologies
Two years ago I visited Professor Fred Lederer’s ‘Courtroom of the Future’ in Williamsburg, Virginia, and saw all sorts of gadgets which were being used in different courts in the United States. We are now setting about experimenting with these gadgets in a controlled way. Last week Lord Irvine announced that the Treasury had provided £23 million for our new Crown Court Programme. This will enable the experiments of the last five years to be carried forward in ten pilot Crown Court Centres more systematically. The tools being tried out will include digital audio recording, video conferencing, telephone conferencing, real-time transcription, and the use in court of imaged documents and computer graphics. If their usefulness is proved by rigorous testing, they will be deployed more widely. Quite soon, I hope, the ‘Modernising the Civil Courts’ Programme will be able to take forward similar experiments on the civil justice side. Traditionalists will have no more chance than Canute of stopping the tide. What will be vital will be the application of prudent controls to temper the pace of change, and we are bound to have a lot of those.
Promulgation
In the last three years we have been moving steadily forward to a world in which the most recent judgments of the courts will be available free online to everyone who wants to access them. We have now nearly arrived. You are doing much better than we are in Scotland. I am sure that within the next few years the process will be complete on both sides of the border.
BAILII
This brings me naturally on to the second part of my talk tonight, which is about the BAILII project. I spoke about this at Warwick University just before Easter. I was joined then by speakers from Australia and the United States, and I remember being very conscious that those two countries were miles ahead of us in using applied computer technology in aid of the courts. I first started to become interested in issues concerned with IT and the law 15 years ago, and I was very struck by the way that Australia was forging ahead of us even then. So far as the United States were concerned, we might as well have been on another planet.
Why were we so far behind in the United Kingdom? I could think of five reasons immediately. The first was that we were very firmly in the grip of a traditional book-bound legal culture which didn’t much like the idea of change. The second was that the Lord Chancellor’s Department and the Scottish Courts Administration were in those days small departments which didn’t really have a wider vision, much less the funds to support such a vision. The third was that in this country there was then no tradition of judges and court administrators and businessmen and academics – let alone politicians – meeting together to make common cause to drive our court systems forward into the future. The fourth was that our public sector capital spending arrangements didn’t permit for outside investment, and a government department could only be sure of what money it had for one year at a time. The fifth was that law publishers wanted to conserve their markets for book sales, and were mostly very slow to capitalise on the possibilities of electronic publishing. Most of all this has changed now, but we still have a lot of skeletons from the past about, obstructing progress.
Why have I always been so enthusiastic about the need for free provision for primary sources of legal information? My answer is that I have always been keen to establish a level playing-field in access to the law. Our great long-established universities have always had wonderful law libraries. So have the Inns of Court and the Advocates’ Library here in Edinburgh and our leading lawyers’ offices in this island and their equivalents in Belfast and Dublin. But what about the universities which started developing law faculties from 1960 onwards? What about the smaller lawyers’ offices, particularly those away from big urban centres? What about the courts themselves, particularly the smaller courts, and the judges and magistrates and sheriffs who sit there? What about law centres and pro bono units and citizens’ advice bureau? What about the poorer countries of the Commonwealth, particularly in Africa and the Caribbean, which are desperate to obtain access to UK law texts?
The world I watched developing in the 1990s was a world in which the gap between the haves and the have-nots was widening. As the courts provided more and more of their judgments in written form, the lawyers involved in the cases had the precious transcripts photocopied or scanned onto their electronic databases, available only to their comparatively charmed circle. Electronic publishers got hold of these unpublished court transcripts and created subscription services for those customers who could afford to pay for them. Unless there was a brief summary in a newspaper law report, the rest of the market was left to wait for the report eventually to be published in one of the series of law reports to which they had access. Often they had to wait a long time.
More and more specialist law report series were also being created, and there was a limit to the number of law reports most people practising or studying or teaching the law could afford. As a judge I watched the way in which the leaders in the field had access to recent case-law which was not readily available to the rest of the market. The fees they charged their clients reflected, in part, the benefits they could give them from this privileged position.
Five years ago, when I was chairman of the English Law Commission, I introduced a law reform bill (sponsored by both our Law Commissions) to a House of Lords committee. It was designed to modernise and codify the part of our private international law which was concerned with the law of tort and delict. I remember referring the committee to a paper it had received from Professor Anson, a great Scottish scholar on this topic. He said that one of the great merits of the bill was that it would make the law accessible to those who didn’t have access to very specialist law libraries in the charmed triangle of Oxford, Cambridge and London. I picked up this theme when I told the committee that the English and Scottish Law Commissions wanted to put legal advisers (and their clients) in Wigan and Inverness on an equal footing with those who served their clients from inside that privileged triangle, and that this bill would help to achieve that aim. Parliament approved what we were proposing, and the bill is now law. IT gives us even greater opportunities to do much the same sort of thing much more widely.
Chatham House Meeting
Last November I chaired a meeting at Chatham House in London at which Professor Graham Greenleaf of AustLII was the main speaker. It was a bit like a revivalist prayer meeting. There were people there from government and the judiciary, from both sides of the legal profession, from the academic world and the world of legal publishing, from the worlds of law librarians, consumer associations and advice centres. They came not only from England and Wales and Scotland, but from Northern Ireland, Ireland and the Channel Isles, as well. The mood of the meeting was unanimous. We all wanted to see in these islands the creation of an electronic legal information service like the one Professor Greenleaf had showed us, giving access to our primary sources of law, both statute and case law, free at the point of delivery. £100,000 was raised before Christmas to enable work to start quickly, without things getting tangled up in red tape and committees.
Where are we now, and where are we going? We have made progress on a number of fronts. The most visible has been the creation of the Web site called www.bailii.org. This we owe almost entirely to the efforts of the three directors of AustLII. Andrew Mowbray built the databases, Philip Chung developed the interface and Graham Greenleaf generally encouraged and negotiated BAILII’s development.
The Pilot Site
They have created a pilot site which includes a lot of the primary source materials that are now accessible free of charge and free of copyright restrictions. It is already the single largest free access law site for the United Kingdom and Ireland. It obtained 14,000 hits on its first day. Site watchers in early April saw the volume of English case law multiply more than a hundredfold overnight. This occurred when Smith Bernal, the official shorthand writers since April 1996, showed their belief in the project. They made available to us free of charge to BAILII three years’ worth of their archive of transcripts from the two divisions of the Court of Appeal and the Crown Office List.
This pilot site will grow and grow. It has all the House of Lords cases since November 1996. It will soon have a great many Privy Council opinions. There are problems at present with the availability of recent cases from what we call our Supreme Court – the High Court and the Court of Appeal. There is already a growing collection of case law from Scotland and from both sides of the border in Ireland. We have had wonderful help from people in all these countries. I hope that a lot of valuable statutory material will follow soon. I am also hopeful that before very long there will be a further colossal explosion of material onto the BAILII site.
Organisation
We are also developing our organisation. For the last six months the project has been steered by a small group of us, all very busy people but not too busy to meet at 8.30am from time to time to take this project forward. We have two more meetings planned in the near future. There was never any idea that a project on this scale could be managed long term by a small group of very busy people meeting early in the morning on an ad hoc basis, but we had to start somewhere.
Two months ago there was a successful meeting in London when members of the steering group met people from a number of universities who were interested in what we were doing. It is now broadly agreed that the academic community within the five jurisdictions in these islands should create a fledgling management body, and these ideas are now bearing fruit. This management body would draw this year on our sponsorship funding to employ two people who would be trained by AustLII and then planted into a university under the tutelage of a sympathetic Dean to take over the data management from AustLII, using AustLII’s software and know-how. We will also be discussing with AustLII what additional resources they will need to maintain and continue the growth of the BAILII pilot service for the next 6 to 12 months. At the same time a nine-month study will be conducted to consider the long-term needs and ramifications of the undertaking on which we have embarked.
Six distinct elements of the project have been identified: funding, capture, archiving, delivery, infrastructure and supplementing.
Funding and Data Capture
Funding speaks for itself. For the first year, whenever it starts, we have the funds already pledged. Year 2 funding has not yet been sought, but I am told that it is anticipated that there will be no difficulty in raising at least £250,000 once the databases have grown and the service begins to attract large-scale traffic. After that, the scale of the permanent funding which will have to be sought, and the sources of that funding, will depend partly on the outcome of the nine-month study. This in turn will inform the decisions which will have to be taken in due course on how best to provide the databases in the future.
Capture refers to the process of acquiring data, assuming that permission has been granted by the judges and (where relevant) by government. This is quite complicated, because our arrangements, at any rate south of the border, haven’t ever been geared for a project like this.
Archiving
Archiving was quite a controversial topic at first. We do not want this pro bono project to stagnate because it is a monopoly. All the materials supplied direct to the project will therefore also be stored elsewhere, probably by SCL in the first instance. It is not intended in the pilot phase to spend money on making this a separately intelligible, searchable or Internet-accessible archive. It is merely a duplicate store.
During the pilot phase, materials will be sent to BAILII and to the archive store simultaneously. In the final, permanent, outcome it may well be that publishers will wish to fund this archive so that it is intelligible and accessible in a format suitable to their needs. It will still, however, remain in place as a guaranteed free source of data to anyone who wishes to emulate what we are doing on a bona fide basis.
Delivery
Delivery is the visible part of it all. The pilot will use the AustLII tools and know-how for automatic additions, hyperlinking and searching. Long-term provision may or may not involve those tools. It also may or may not be in an academic environment, although our friends in AustLII would certainly have things to say about the use of their software if we decided to change to a non-academic environment. It would be easy for us to assume now that the concepts behind the BAILII pilot project cannot be bettered, but we are all conscious that many things may change, and we may learn a lot during the next two years or so, which may lead to a change of direction.
Infrastructure
In order to set up a formal body, we need to agree the structure that will be needed to run the project effectively across our five jurisdictions fairly soon. The strategic management of the project and its day-to-day direction will have to be put onto a proper, and properly accountable, footing.
Supplementing
The provision of raw data, which is essential in itself, has a lot of limitations, although these can be alleviated to some extent by the use of sophisticated tools and search engines. What is going to be of real value is the provision of material which summarises and digests and comments on the raw material. We do not envisage that the pilot phase will offer much scope for the supplementing of the databases with metadata on any basis, free or paid for. On the other hand, this is likely to be a significant feature of any permanent service, and may well be a source of self-generating finance.
I see my own main task as speeding up the delivery of approved judgments from the High Court and the Court of Appeal in London. For example, I want to see all approved written judgments on the Human Rights Act available to everyone on the Internet within an hour from the time they are delivered in court. When Lord Woolf recently handed down the major judgment of a five-judge Court of Appeal on the future level of personal injury damages, he announced in court that the judgment was being posted on the Court Service Web site as he spoke.
I also want to see an acceleration in the processes of transcribing ex tempore Human Rights Act judgments and then approving and publishing them, because everyone will be keen to have access to them, particularly in the early years of the Act, as quickly as possible. But the full text of the court’s judgments will be of limited use to most of the market. We need to think about those in central and local government, about busy judges and magistrates and sheriffs and lawyers and those who work in tribunals, and about everyone who provides advice through the new Community Legal Service, those concerned with families (Article 8) or the media (Article 10) or the police (Articles 5 and 6) or the prison service (Articles 3 and 6). The list is endless, and what all these people will need is a rapid summarised digest of the courts’ decisions, not the actual transcripts themselves.
Other Matters
There are a great many practical problems which we still have to overcome. One breakthrough we have made, a few months after the same thing was done in Scotland, is that the Judges’ Council has agreed that our judgments in the High Court and the Court of Appeal should be given paragraph numbering. I hope that the new Lord Chief Justice will soon announce our decision to introduce a system of neutral citation for all courts with an official shorthand writer. The remaining problems I am struggling with will take a little longer to resolve.
One difficulty we face is that it is Government policy that civil justice should pay for itself. But the ideas I have been discussing have very little to do with the normal service of the English Court Service or the Scottish Courts Service to litigants who pay court fees in order to take forward their litigation. They are all about making the law of England and Wales, or Scotland, or Northern Ireland, or Ireland available to the people of these islands free of charge, preferably so that they can resolve any disputes they have without the need of paying court fees in litigation. When digital television is introduced, my dream is that people will be able to access the law, if they want to do so, through their television set at home.
The extent to which taxpayers’ money should be available for this new service of enabling everybody, rich or poor, to have free access to all the law on a Web site like this is a matter for Government as a whole and not really for the English or Scottish Courts Services. It may be that we will need to go forward with a mix of public and private money. This remains to be seen.
Conclusion
I have mentioned just a few of the ways in which we are trying to harness IT to help the courts and the judges to do their jobs more effectively. If we succeed, we will also have succeeded in making our law available much more widely to the public and to those who advise the public at grassroots level. A great deal more is being done and thought about along similar lines in different parts of the legal system. I can already foresee a lot of changes in the way courts do their business. We will always have judges conducting hearings. But I can foresee a smaller, leaner complex of courthouses in many of our towns, with the old back-office functions being switched to national or regional data centres, just as the banks have been doing.
In the midst of all this change, there will be a need of clear vision and strong leadership from the judges and from both sides of the legal profession. I believe very strongly that SCL will have an increasingly important role to play in plotting out this future. I am only sorry that I am unlikely to live long enough to see every single one of my dreams come true.
