Cross posted with permission from The Transparency Project
On 15th September 2016 the Ministry of Justice opened its consultation into “Transforming Our Justice System”. The 36 page document, accompanied by a statement by the Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals, sets out a “vision” for a radical overhaul and major financial investment in courts and tribunals in England and Wales. The plans for reform include more use of case officers for routine tasks, more decisions made “on the papers” (where a judge can consider representations without a physical hearing), more virtual hearings, and more cases resolved out of court.
The consultation document concentrated on some specific areas of reform including its “assisted digital” strategy (to help users access services), and online conviction and statutory fixed fine plans. The latter would allow for certain routine, low-level summary, non-imprisonable offences with no identifiable victim to be resolved entirely online, whereby a defendant would enter their plea to an online system. If that’s a guilty plea they would be able to view the penalty, accept the conviction and penalty, and pay their fine.
Responses were sought on online convictions and the “assisted digital” strategy by 10th November (extended after an administrative error). It is likely that many of the responses will focus on the access to justice issues and the risks of an online plea system; research by the charity Transform Justice, for example, indicates that “many unrepresented defendants do not understand whether they are guilty or innocent in legal terms – whether they have a valid defence – and certainly don’t understand the full implications of each option”.
However, there’s another major issue which is overlooked in the consultation, that of access to courts and tribunals by members of the public who are not necessarily directly involved with proceedings — this includes members of the media, NGOs and universities, but also ordinary people who wish to observe proceedings and access the information to which they are legitimately entitled.
Although the consultation document contains a pledge that the judiciary and government will “continue to ensure open justice”, access to proceedings and materials is not explored in any detail in relation to the specific reforms outlines on online convictions and “assisted digital”. It states the “principle of open justice will be upheld and the public will still be able to see and hear real-time hearings, whilst we continue to protect the privacy of the vulnerable” (p.5). This sentence points to a very important tension in complex digital environments, and one that needs overt recognition and detailed consideration when designing new access systems for online court procedures in both civil and criminal contexts.
There is mention of “transparency” in the joint statement (p.10) but only in relation to general data about proceedings (i.e. statistics) rather than with regard to access to proceedings. The Impact Assessment on Online Convictions mentions that “Listings and results would be published” (p.5, para 23) with no indication of whether this means to the open web (indefinitely?), or in a physical courtroom. If they intend to publish the full listings for all these summary only non-imprisonable offences to the open web, it is very important that the judiciary and MoJ consider the legal and societal implication of this — it is not something that has previously been done so systematically by the court.
Given that many major criminal convictions are unreported by the media owing to a lack of resource or interest, we could end up in a strange situation where there is greater access via online search for far less serious offences and this must be considered in the context of issues such as equal opportunities and potential barriers to work, as well as open justice and transparency. The MoJ, HMCTS and Judiciary should investigate a range of technological options for sharing data from courts and tribunals and should open these proposals to scrutiny through stakeholder research and official consultation.
In the annual University of Sussex Draper Lecture 2016 in London this week (8 November), Lord Justice Fulford (a summary of which may be found here) said that one option being considered was to provide viewing centres in public buildings, but these were early days and they were still looking for imaginative solutions. It would seem perverse, given the overall agenda of the reforms, for the courts not to consider digital access options that do not require physical travel to court.
On behalf of the Transparency Project I have written a submission to the consultation, raising our overall concern about the lack of attention given to open justice and access to information in these initial documents. Our submission urges the Ministry of Justice and Judiciary to provide more detail on their specific plans for physical and digital access to virtual proceedings and to open these plans to further consultation. Too often, public access to courts information is an afterthought, which leads to mistakes such as the inadvertent release of sensitive and confidential data, or insufficient information and access being made available.
Judith Townend is a lecturer in media and information law at the University of Sussex and a member of the Transparency Project Core Group.