In the second part of this article, I’ll talk about the need for the courts to move on from a sticking plaster approach to digital transformation and maximise its potential to make justice accessible to all.
As we explored previously, courts are undoubtedly using more technology than ever before, but it’s still limited to specific tasks - there is no evidence that they’ve “fully” embraced technology.
The key challenges facing them remain:
Access - given the unequal access in our society to devices, broadband and skills, we risk a digital divide developing if we don’t have a comprehensive approach that enshrines access to justice for all and reduces the barriers for those in digital poverty.
Fairness - Artificial Intelligence (AI) offers the promise of streamlining decision-making in sentencing, parole and allocating judges, among many other possible roles. This would clear backlogs and speed up the dispensation of justice. There are some promising examples around the world of its application in assisting justice systems, for example using algorithms that amplify and improve the decision-making process for risk assessments or for proactive policing.
Security - with court records and proceedings moving to digital platforms, how do we ensure that sensitive data isn’t stolen or misused, and that proceedings aren’t subverted or sabotaged by malicious intruders?
Skills - we can’t leave the people who are responsible for dispensing justice behind as we move to new digital ways of working. This means that any programme must have people at its centre – understanding their needs and concerns and providing the training they need to be productive and engaged.
The answers to all these concerns revolve around two fundamental success criteria: we need a coherent, joined-up approach that drives technology decisions and we need quality, accessible data.
A coherent approach provides a clear vision for an end-to-end justice system — and what that means in terms of overall outcomes for its users - as opposed to fixating on specific technologies in themselves as the solution. They may be part of the picture but they’re not the whole solution.
And by quality, accessible data I mean data that’s accurate, complete and collected right across the judicial journey, from before someone appears in court to long afterwards, so that we can design the right systems and processes to cater for everyone. As strategy guru Geoffrey Moore famously said: “Without big data, you are blind and deaf and in the middle of a freeway.”[1] Dr Natalie Byrom, Director of The Legal Education Foundation and a fellow speaker at the recent ‘Next steps for court modernisation’ seminar, said in the Foundation’s report that “capturing data is vital for ensuring the system is working fairly”.
Take the issue of access. If we don’t have the right data, how do we know who’s vulnerable and in need of support? If we don’t accurately record and analyse every interaction between citizens and the courts, and make data-driven decisions, how do we know whether we’re getting it right, and improve where we need to? We need sound data to ensure that everyone, including vulnerable people, has equal access to justice.
AI is another example of the importance of data. The major concern here is bias and lack of transparency in decision-making. The best way to counter bias is to ensure that the algorithm has quality, complete data (not just a lot of it) to work with. Transparency is also vital: the algorithm’s inner workings must be open and explainable to all, and so must the data that drives it.
Data infrastructure, policy, processes and access must be designed up-front with security as a core principle. It should be intrinsic to how data is used, not a separate layer. And we’ll need a coherent digital security policy to make sure we don’t end up with haphazard implementations and inconsistencies that give cyber criminals a way in.
Upskilling courts staff so that they’re ready for digital ways of working will take more than good data, but here too it’s the starting point. What skills do we have? Where are the gaps? And, as training starts, are we closing those gaps? Are we seeing progress in the right areas? Accurate, accessible answers to these questions will allow courts to make the best use of their people.
There’s plenty of inspiration to be found from the progress that’s been made in other countries - 2020, there were more than 81.5m judgments and other judicial documents on the China Judgments Online website, representing the world’s largest digital repository of judicial information Several European countries are using automated decision-making .systems for justice administration, especially for the allocation of cases to judges, for example in Georgia, Poland, Serbia and Slovakia.
The pandemic has demonstrated that there’s enormous potential in virtual justice platforms and we have something very tangible to build on. Now we have to focus on developing a coherent approach and using quality data to solve the challenges of access, fairness, security and skills in delivering a truly transformative digital courts system.
1 Geoffrey Moore, title of book chapter in: The Business Book, 2014. Dorling Kindersley Ltd, p. 316
