Transforming Justice: Government Reassurance and Continuing Concerns

February 22, 2017

In early February, the government published its response to
the input on its consultation paper ‘Transforming Our Justice System: summary
of reforms’, which was published back in September. You can access the
government response

Two particular aspects of the reforms are of special
interest to anyone concerned with the development of the justice system and its
attempts to embrace the technological revolution: (i) the assisted digital
strategy and (ii) the proposals for the automatic online conviction and
statutory standard penalty.

The concerns that were raised during the consultation period
are met with reassurances. The main problem with these reassurances is that
most people will not believe a word of them and will think that the great
driver for the MoJ is not for justice but for cost-saving. The cost of properly
meeting all the reassurances may prove prohibitive, in which case, those
reassurances will be hollow. But I am prepared to suspend disbelief, for the
time being at least.

One factor that applies in respect of both the assisted
digital strategy and the proposals for the automatic online conviction and
statutory standard penalty is the immutable stupidity of people. This is
especially relevant in the case of the automatic online conviction system but
it is not only relevant there. In the online world we all (yes, even the vast
majority of tech lawyers) blithely tick our way through boxes, selling our
online souls for an easy life. The more serious the advance of online into the
legal world, the more one will see stupid people fail to distinguish between
the serious and the trivial, ticking the box that makes life easier in the
short-term with little thought for the repercussions.

Assisted Digital

Virtually all my concerns about the assisted digital
strategy are echoes of what I say above about stupid people. My one very
specific concern is that the government response, very predictably, focuses on
digital incompetence when the inability to lucidly express a case, or even
recognise the existence of points that support a case, is a greater problem.
The answer is to operate the sort of legal aid system that we could somehow
afford as a nation back when we were much poorer but cannot afford now
(apparently). But I have spat into that wind before and seem incapable of
understanding how we can all be better off as individuals but cannot afford
much collectively.

The assisted digital strategy relies for the provision of
services on ‘partner providers’. My concern about ‘partner providers’ and their
likely standard of service is that there seems to be a vanishingly small chance
of the individuals providing that service having the vision to recognise
crucial legal points. Their focus will necessarily be on ‘what do you want to
do?’ and not on what should be done. The gap between the two can be a chasm.
Note that the worked example in the government example is quite specific: ‘the
adviser does not give legal advice, advice on the merits of the case or which
plea to enter’.

Quite who these advisers will be is an interesting question.
Given the dearth of tech skills in this country and the premium available to
all with minimal tech skills, we are likely to see the recruitment of those
with just enough knowledge to fill out the forms – and they are unlikely to
have the nous to think outside the box(es).


As one can see from the heading above, the scheme for
automatic online conviction and statutory standard penalty suffers from one obvious
defect – it has a silly acronym. Had they re-ordered the words to ‘automatic
conviction online’ nothing much would have changed in terms of sense (perhaps a
mild change in nuance) but we would have ‘ACOSSP’. References to ‘it’s a fair
ACOSSP’ would appeal.

At a more serious level, the proposals for the scheme for
automatic online conviction and statutory standard penalty are undoubtedly the
thin end of the wedge. But not all wedges are unwelcome and this is not in any
way underhand. Indeed, the reassurances covering an extension of the system
(initially focused on rail fare evasion, tram fare evasion and possession of an
unlicensed rod and line but declared to be intended to be applicable to certain
motoring offences) is limited to an observation that extension will require an
SI and Parliamentary approval. Hands up all those who have faith in that
barrier to extension.

If stupid people and the dangers of trivialising the
procedure are of concern in all aspects of digitisation and due process, those
dangers are writ large in the context of criminal offences. While my learned
readership is probably fully aware of the ingredients of the offence of being
in possession of an unlicensed rod and line, and the relevant defences, I
suspect that many are not. Ditto the apparently simple offences of train and
tram fare evasion. These offences will be trivialised and the innocent will plead
guilty – that’s not a risk, it’s a certainty. But it has to be acknowledged
that we already have a system which accepts the trivialisation of certain
offences, starting with pleas of guilty by post (road traffic), through the
fixed penalty scheme (which extends to retail theft (shoplifting) – once an
offence that might have been thought to merit a Crown Court trial) and on to the
use of cautions for a surprisingly wide range of offences (eg assault). In each
of these examples, an unwise acceptance of guilt ‘for an easy life’ can have a
life-changing effect. This new initiative just adds to the mix.

One extraordinary suggestion in the government response
needs highlighting. The system is applicable, we are told, only to defendants
who ‘offer no mitigating circumstances and crucially, opt in to the automated
process’. But show me an advocate who has stood before a court and declared
there to be no mitigation and I will show you an extraordinary set of circumstances.
There are almost always mitigating circumstances: youth, lack of means, stress,
the special impact of the penalty – the list is endless. The Sentencing Council
has yet to issue guidance that does not list mitigating factors. What is really
meant is that a standard penalty will be issued where nobody can be bothered.
The trivialisation is not just a product of the system but an essential
ingredient of it. The extent to which the system is stretched to cover more
serious offences is key to whether that amounts to a critical fault.


Despite my concerns, I broadly welcome these proposals. They
represent an extension of the use of technology but, carefully monitored, it is
an extension that makes sense. Whether the MoJ can deliver on its reassurances
is debatable and finding a way to monitor that is going to be tough. But I
continue to have some faith in
government’s ability to deliver digital solutions; like most faith, one needs
to ignore some facts to maintain it.

Finally I note the very interesting comments that have been
raised about transparency/open justice and, inter alia, disproportionate
publicity arising from online conviction. I refer those interested to this
piece from Judith Townend
and her earlier writing on related topics and various
submissions from Penelope Gibbs including this.
I cannot do justice to the complexities here. I would only observe that, while
a balance has to be struck, little is currently done to publicise fixed penalty
convictions or cautions (indeed only the victim and the police are likely to
know) even though they may cover more serious offences. As currently envisaged,
I can see no reason why automatic convictions should fall into another