The International Online Courts Forum was held in London on 3rd and 4th December. It was organised jointly by HM Courts & Tribunal Service (HMCTS) and SCL, a charity committed to greater understanding of the impact of IT on law and legal practice.
The event was held at the London offices of DLA Piper and was jointly chaired by HMCTS Chief Executive, Susan Acland-Hood, and SCL President, Professor Richard Susskind. It was attended by around 150 people, including judges, legal professionals, academics, court administrators and think tanks, from more than 20 countries.
The event was opened by the Lord Chief Justice, Rt Hon Lord Burnett of Maldon, and was also addressed by the Lord Chancellor, Rt Hon David Gauke MP.
The reality of justice
In her opening remarks, Ms Acland-Hood, reflected on the importance of people to court reform – and that the focus of exciting and innovative technological developments should always be on their impact on the people who required the support of an effective justice system.
Acland-Hood considered the huge benefits to be gained from partnerships and collaboration, and how international experience had played a significant part in the development of HMCTS’s Reform Programme in England and Wales.
In his opening remarks, Professor Susskind contemplated the startling fact that while more than half the world is online, only 43% of the global population has access to the protection of the law.
Susskind spoke about how the model of the traditional court cannot be scaled up to meet the demands of dispute resolution: while technology is being used to try to ease some of that burden, it is largely being applied to the existing justice system – grafting new on old – and at best will provide a temporary sticking plaster.
Susskind argued that wholesale change is required and such where all interested parties are on board, including the judiciary and policymakers. Only with such leadership and determination can online courts become a reality.
An international comparison: a race to digital justice
Day One of the Forum saw a number of attendees from across the world present summaries of the progress of reform in their particular jurisdiction.
HMCTS is not alone in wanting to develop the online court. All of the more than 20 countries represented at the Forum are all looking to promote digital reform, recognising that some legal systems worldwide can often become overly complex and inefficient. Lawyers are increasingly deploying their skills to navigate the system, rather than to provide legal advice. Consequently, alternative forms of resolution, like mediation, are not front of mind. Instead, going to trial remains the cultural and behavioural end-point.
HMCTS’s plans are certainly ambitious, with a six-year £1bn project to modernise the courts. Aimed at creating a more expeditious and intelligent response, the project is already driving change with new online services publicly available enabling the public to apply for divorce and probate, make civil money claims and appeal against welfare decisions.
Judge John Aitken spoke about the positive results of the project in the first-tier Tribunal. By offering an online process for resolving challenges to the awards made by the Department for Work and Pensions, the Tribunal has reduced the time (and costs) of case management and – as importantly – seen a public willingness to engage online.
One of the key authors of the online court, Lord Justice Briggs, also spoke about the benefit of accessibility that online justice can bring. Briggs reported on progress in the Supreme Court, which includes the live streaming of judgments around the world.
However, hearing from other jurisdictions including Singapore, Portugal, Japan, China, Denmark and the US confirmed that most countries are at the start of their ‘digital journey’. That includes getting the infrastructure right (including online access in countries like India), as well as addressing cultural challenges (such as the adoption of new ways of working among within justice systems). All speakers agreed that the pragmatic realities of achieving online courts are some way behind the aspiration. Identifying the obstacles now will be as important as finding solutions to them, to ensure that the benefits of technology outweigh the risks.
Overall, three universal messages were delivered:
(i) the best way to develop technology is by small, incremental steps
(ii) data capture is vital to inform ongoing development
(iii) be careful to not over-promise what digital can do.
Ethics by design: going online
Day two of the Forum turned to the importance of preserving the bedrock of the justice system: transparency and fairness.
Lord Justice Briggs spoke about the need to maintain the rule of law – addressing challenges such as hacking and cyber security to ensure transparency is protected. He recognised too that we must continue to offer the same options that exist now with regard to dispute processes. Commercial disputes are a good example of where the individual can choose between transparency and privacy: arbitration (securing privacy) or litigation (affording transparency). Briggs argued strongly that such choices must prevail. Civil society remains essential.
The shift from the offline face to face exchange to the online exchange also shifts the architecture of engagement, raising an important question: what meaning does transparency have when we translate it to BlackBox algorithms?
Indeed, could the organic way in which our jurisprudence develops be adversely impacted by artificial intelligence?
Design questions, therefore, become more sophisticated; more advanced and more complicated. And there are a number of lenses through which to consider the question of design:
- Process substance – to ensure the public’s understanding of the procedures underpinning the justice system is preserved (and improved).
- Procedural justice – to ensure the avenues to a decision are presented as being balanced; recognising the need for the court user to feel heard.
- Human machine – to understand the impact of substituting face to face interaction with an online decision maker.
- Digital divide – to understand the implications of the shift from access (to courts) to use (of an online system).
Overall, the speakers agreed about the importance of building fairness and ethics into AI. Protection of human considerations must be built into AI systems so that they represent intelligibility and transparency. The regulatory framework underpinning AI systems need to adopt a principle-led approach, rather than being overly prescriptive, so that we do not risk undermining trust in the judicial system.
The human experience
The recognition that court users must be at the heart of the design of online courts ran through the event. Solutions need to be tailored that open up the perception of access to justice, as well as the vehicle to it.
Christina Blacklaws, president of the Law Society for England and Wales, spoke at length about the ethical challenges, including whether it is undignified for decisions to be handed down by computers?
To that end, the inaugural lecture delivered by Shannon Salter – and sponsored by Kennedys – posed a simple question: can online dispute resolution humanize the justice system?
Drawing on her experience of designing the Civil Resolution Tribunal in British Columbia in Canada, Salter presented a compelling case in favour of the work towards online courts. If used properly, technology has the potential to resolve claims on a more efficient, humanized, simpler and inclusive basis.
Salter offered five guiding principles to the development of the online court. For it to succeed, it must embody the principles of being:
- Timely – with a focus on early resolution.
- Flexible – providing a range of ADR options and the capability of continuous improvement.
- Accessible – offering 24/7 access and free legal support.
- Affordable – presenting staged fees and simple fee waivers.
- Efficient – allowing active case management and tailored processes.
What Salter offered though was a salutary reminder that those charged with designing the technology to create an online court must use it to allow benefit, rather than create obstacles.
Hard-wiring for understanding
Dr Sandra Wachter, Research fellow and Oxford University, explained how care is needed when training machine learning algorithms. Whilst algorithms can achieve pattern recognition and regularities in data, most of the time we are not able to figure out the true function that always make the correct predictions. The other reason is that algorithms rely upon an assumption made by humans about how the computer should learn and this assumption can introduce a bias. In other words, algorithms can also learn nonsensical patterns.
Well-engineered systems will, therefore, be paramount. Continuous monitoring must be an integral part of the process, to check if bias is entering the system and correct it. Unless biases are extracted they will be hard-wired into the system.
As Orlando Conetta, Head of SmartDelivery at Pinsent Masons, argued – we must first question whether or not we have developed a scientific understanding of what we do as lawyers? AI can assist with the finding the answer and it should, if applied properly, enable us to determine how lawyers are doing their job and offer a consistent high standard of competency; thereby helping us understand ourselves better.
Put another way, algorithms are capable of making better decisions than humans, but we need to define what a good decision is first. As Wachter explained, there is no neutral data, it all contains bias. Similarly, she pointed to at least 21 different definitions of fairness, which are always changing. Ethics starts at the design phase and must be a lifelong process (and commitment).
Challenges for policymakers: how will judges and lawyers operate in a more iterative and inquisitorial process?
Professor Dame Hazel Genn, Professor of Socio-Legal Studies at UCL, spoke about the importance of creating a system that meets all of the needs of various users and maintains the most valued aspects of our public justice system. Digital illiteracy is not the only aspect to be alive to. General literacy and comprehension of the process must also be a factor to ensure the online world does not exclude those already using the courts, including litigants in person and other vulnerable users.
Genn, like so many other speakers, implored the audience to understand the importance of data capture. We must make provision now to collect data to answer the questions we are asking. Effective data collection and evaluation is paramount to realising the opportunities for understanding and improving our justice system.
Professor Pablo Cortes, Chair in Civil Justice at the University of Leicester, spoke about the value in extending the monitoring role to the performance of the judiciary to ensure best practice. Online courts will promote centralisation (together with digitisation) and will require specialist judges and adjudicators rather than judges with more generalist expertise.
Conclusion
Technology is the tool not the master. In using it, we must question everything about the justice system to determine if it – the system – is fit for purpose in achieving the goals of fairness, proportionality and justice. Only when we are confident that we have placed the human experience at the centre of the system should we deploy technology to streamline the process and help deliver the outcomes.
Broad input is required in the design of digital justice and monitoring the impact. Public interest is key and government needs to step up to the plate, to ensure that the legislative and regulatory frameworks try to keep up with the technology and the decisions it will be making.
As the Lord Chief Justice summarised, we are only at the foothills of digital reform. The advantage that presents is that we can get the design right – allowing us to move away from the ‘secret garden’ that the legal system has become to one that allows increased accessibility, transparency and inclusion. Technology gives us the opportunity to open up access to justice to the court user, which is a truly worthwhile objective.
Thanks to Kennedys for preparing this report and for sponsoring the event
