Can Technology Transform the Judicial System?

January 1, 2002

Since 1997 more than ten million pounds have been spent on judicial IT. More than 1,200 of us are now equipped with modern laptops. We have word-processing and communications software, and Internet access, although, for all practical purposes, none of us are yet networked.

Today over half our judges are using their computers every day as an indispensable working tool. Most of the other half are still struggling on the nursery slopes. This time every judge was allowed up to three days’ basic training at the start. Since getting their new laptops they have been virtually on their own. The Court Service has not been able to afford much by way of refresher training or hands on help.

So far as the court scene is concerned, none of our courts are networked. We have some fairly basic systems in the Crown Court and the county courts. Back office dumb terminals draw information about each case from a database for the purpose of making standard form documents. There are also a few stand-alone systems for court staff in different parts of the Royal Courts of Justice. But in general, in the courts we are miles behind the rest of government, let alone modern business and commerce.

It isn’t all bad news. A lot has happened in the last two years, and a lot more is going to start happening quite soon.

The problems with which we are struggling are largely hidden from view. The public and politicians are not much interested in justice, or in those of us who are doing our best to provide justice, except when they or a friend or a member of their family want a bit of justice themselves. There is a fairly widespread assumption that courts are bound to be slow; that lawyers are bound to be expensive; and that judges are bound to be elderly and a bit weird. All these things are regarded as part of the English scene. Like village cricket and cycling to evensong. Nobody supposes there is very much anybody can do about any of them.

The Judges’ Requirements and the Court Modernisation Programme

In August this year the judges published a report called ‘Modernising the Civil Courts: The Judges’ Requirements’. Its five authors were all judges, and the report contained an Introduction written by the Lord Chief Justice. The report was written as part of the judges’ contribution to the court modernisation programme. In Chapter 3 they described some of the problems every judge in the country faces every day. The list begins: ‘Insufficient staff – high staff turnover leading to the use of inexperienced staff – missing or chaotic files – court orders take too long to be drawn and are often drawn incorrectly – lack of proper administrative support for the judiciary’. Later on in the list they say that very few members of court staff have real IT expertise, and that there is a chronic lack of funds even for basic equipment.

The court modernisation programme is concerned with finding solutions to these problems. Last April Lord Woolf appointed me as the judge in charge of modernisation. I have the authority to speak on behalf of all the judges in England and Wales on the Board which runs the programme. This is the first time a senior judge has ever been appointed to a post like this. What we are doing is all very new, and a lot of it is involved with the use of applied technology.

I am speaking to you tonight from the perspective of a judge. In court we are concerned with hearing defended cases but a lot of what goes on in the justice system is undefended. It goes nowhere near a judge, and a lot of it is already done by a computer in Northampton. For nearly ten years a few major creditors have been using this computer to provide them with a debt collection service. When you fail to pay the final demand for the gas bill, the gas company sends the invoice to Northampton. A claim form is then issued and served by computer. If there is silence for two weeks a default judgment is issued and served by computer. Not a judge or a human being in sight. It is only when you show resistance that the case is sent by post to the appropriate county court, which then handles it as a defended case.

An important part of the modernisation strategy is concerned with handling much more of this undefended back-office work electronically. Many more actions will start electronically, and will be dealt with electronically unless and until resistance is shown. At that stage the electronic file will be sent electronically to a place where staff and judges will also handle it electronically.

We are now starting to test what is called e-filing in pilot schemes. There has been a lot of American experience with this. The essence of it is that anyone will be able to issue a money claim from his home computer or his business computer. He will pay the fee and send the claim off electronically to the Court Service at any time of the day or night. The Court Service will then authenticate and issue the claim, so that many more people and businesses will have the benefits now only available to major creditors. This will take quite a load off court staff.

In Chapter 2 of their report the five judges said that there was a pressing need for common computerised information systems to be introduced as soon as possible across all the civil and family courts in England and Wales. The judges added that these common information systems should also extend to criminal business. They also wrote of the need for our administrative tribunals to benefit from this common approach. In Chapter 4 they described the four interlinked systems which lay at the heart of their proposals: the electronic case record; the electronic case management system; the electronic diary and the electronic file.

The Court Service has told us that they accept the logic behind these proposals. At present work is going on to identify the applications systems which will translate them into reality in England and Wales in every court and every tribunal supported by the Lord Chancellor’s Department. I hope that by early summer 2002 suitable systems will have been identified and agreed with the judges, and that contracts can then be placed to start putting them into the courts which will form the pilot test beds for the programme. Of course there will be a need for a bit of tweaking, as between the different jurisdictions, but there is the making of colossal savings if the same basic systems can be used everywhere.

The power of IT is now forcing the Court Service to involve senior judges in the planning process as never before. In November 40 of us, led by Lord Woolf and Lord Phillips, were at a full day conference at Warwick when I explained the modernisation programme and the leadership role the judges must play in it. Court administrators know all about the back-office problems. We judges know all about what I will call the ‘front-office’ problems. Under court modernisation, the front office and the back office will be jointly networked for the first time. If at the end of a hearing the judge wants to fix the next appointment for a hearing, he will be able to call up the diary system from his computer on the bench and fix a new date there and then. In Appendix 5 of their report the five judges gave three worked up examples of how this provision would enable them to provide a much better service for litigants.

In one of these examples, a five-day case settles unexpectedly a week before the hearing date. The electronic diary is then used to interrogate the system to see if there are any overbookings at that court or at neighbouring courts to fill the judge’s list. Three possibilities are identified. E-mail messages are sent to the solicitors in each case to ask whether the cases are still effective. When told that they are, the system spots that there is a disabled litigant in one of them, and earmarks a ground floor courtroom for that case. The system can also check that the new cases will be assigned to a judge who is appropriately qualified to hear them. The court diary arrangements are updated to show the new listing arrangements. The parties’ solicitors are then informed bye-mail of the new arrangements.

At present every step in that process is done slowly and inefficiently by telephone and a card index system. In a modernised court every step could be taken automatically. Alternatively, some of these steps could be made subject to judicial decision, or the decision of a court administrator of appropriate seniority. If a more senior judge has to be involved, his authority can be sought and given electronically from the faraway court at which he is sitting. All of this is light years away from the present ways of doing these things.

The report also speaks of video-conferencing and tele-conferencing; of electronic presentation of evidence; and digital audio-recording. Pilot schemes are now taking each of these technologies forward in courts up and down the country. They are already showing benefits. For instance, district judges and High Court masters are now regularly conducting hearings on procedural matters with solicitors who do not have to leave their offices once the tele-conferencing link has been set up. One judge in the west country has the whole of his morning list arranged by a telephonic usher, courtesy of BT.

In the conjoined twins appeal last year, Mr Justice Johnson, sitting in London, received all the evidence from the consultants and nursing staff at the Manchester Hospital by video link. None of them had to travel to London for the hearing. On the appeal, we heard oral evidence from the consultant surgeon in person. On another occasion there would be no good reason why similar video-link arrangements could not be made with the Court of Appeal. Recently, Lord Phillips and two of my Court of Appeal colleagues heard an appeal in Cardiff, and later delivered their reserved judgment by video link with Cardiff. A lot of money was saved when nobody had to travel to London. Last week my own clerk used his brand new e-mail system to send copies of a very long draft judgment to the offices of 15 different lawyers involved in six heavy appeals. He normally has to produce 15 hard copies, which people then have to come and fetch.

This, then, is what the modernisation programme is all about. I believe that as things stand, the Treasury is not requiring us to show quick returns on the investment. We couldn’t do it when embarking on change on such a scale. It is currently costing over a million pounds just to put the wiring into one major London Crown Court complex. The Programme Board is looking at the need to make a pretty massive investment of public money if we are to pull our courts and tribunals out of the doldrums. I have no reason to suppose that if we and the Treasury keep our nerve, we cannot pull off major benefits for everyone involved with our country’s justice system.

Four Major Issues

I want to close by raising four major issues for debate. The first is that by our fairly low standards this is a massive programme. It is being handled for the most part by people who have a pretty poor track record. We now have fine managers at the top of the Court Service, but the reports on the failures of major IT projects in the public sector on both sides of the Atlantic provide room for concern. Closer to home, the Home Office’s IBIS systems and the magistrates’ courts’ LIBRA programme haven’t exactly been given a clean bill of health in recent months.

I have read some of these reports, and it is clear to me that the arrangements we now have in place don’t yet provide satisfactory answers to the advice we are receiving. For example, one of the messages from the United States is that a court-based IT modernisation scheme has no hope of success unless the judiciary plays a leadership role. Our constitutional arrangements don’t allow this to happen. Instead, we are dependent on making effective partnership arrangements with the Court Service, in which we are the junior partners. I keep on asking myself: will this prejudice the success of the programme? Ought we to be pressing for even greater changes to the way we do things? The snag is that most judges like judging: they don’t want to become administrators.

Next, human factors. The Americans tell us that programmes of this kind will not succeed unless the human tendency to resist change is carefully addressed within all the organisations that are affected by the change programme. This doesn’t simply mean court staff. To make the programme a success, we are going to have to address the fairly conservative cultures of the judges, the magistrates, the Bar, the solicitors, the Crown Prosecution Service, the police and all the other agencies that use the courts. Where do we look for help in understanding how to change all these people’s attitudes towards an electronic court culture?

Thirdly, knowledge management. A fortnight ago I spent two hours at a very large London law firm, and I was very struck by the provision they made for their staff and their paying clients. Within the judiciary there is an immense amount of valuable knowhow, just waiting there to be tapped for the benefit of other judges, but I was told by that firm that they used 30 editorial staff to keep the service up to date. How on earth does a public sector body develop and maintain such a resource?

Finally, we need to understand how to accommodate the needs of litigants in person. Many of them are likely to feel left out if we switch to an electronic culture. What provision should we be making for those who are incoherent or illiterate or innumerate – those who can’t type and don’t know how to use a computer, even if they could access one? At a court technology convention in Baltimore last August a black Harvard professor warned us how in the United States a lot of the people in all these categories came from ethnic minorities. Technological change suited educated middle class white Americans. It made many Americans from the minorities feel even more excluded. What should we be doing about this? Is it a reason for not trying to modernise at all? Or are there fixes we can use to minimise the problems?

Judicial Working Group

The Report of the Judicial Working Group to which Lord Justice Brooke refers was published by the LCD and is available in pdf format at the recommendations and findings of the report are likely to be very influential. Lord Woolf, the Lord Chief Justice, described it as ‘a major step forward in the plans for modernising our courts’.

The Working Group’s central recommendation is for common computerised information systems to be introduced as soon as is practicable across all jurisdictions. It also goes on to describe the four systems that will provide judges and the Court Service with the essential tools to meet the fundamental requirement of a modern justice system: electronic case record, the electronic file, the electronic diary, and the electronic case management system.