Soon, technology will mean the judge and the parties in a legal action can file claims and evidence online
When new recruits join the Black & Decker sales team, they are shown an image of the company’s latest power drill. “Is this what you’re selling?” the sales director asks. They nod, cautiously. “No,” the rookies are told, “what your customers want is this” — and the image changes to a perfectly drilled hole.
Anyone who has attended a presentation given by Professor Richard Susskind over the past 30 years will remember these as his opening slides. In his new book Online Courts and the Future of Justice (OUP, £18.99), Susskind finally admits that his Black & Decker story is apocryphal. But in 2017 he really did tell an audience of 2,000 experts in brain surgery that neurosurgeons were not what their patients were looking for: it was health.
It follows, he argues, that people who find themselves caught up in a legal dispute don’t want judges, lawyers or rules of procedure. They want outcomes. And if a case can be resolved more cheaply and effectively without lawyers turning up in court, what’s not to like? Unless, of course, you happen to be a lawyer.
Visit any courtroom — even the lowliest magistrates’ court — and you can see the impact of technology. We used to know the hearing was about to start when a leatherbound notebook was brought into court and placed reverently on the bench. Now, a clerk will plug in the judge’s personal laptop.
Assuming, of course, that the court is still open for business. Between 2010 and 2018, 162 of the 323 magistrates’ courts in England and Wales were closed; along with 90 of the 240 county courts; 28 of the 83 tribunal buildings; 17 of the 185 family courts; and eight of the 92 Crown Court buildings. Selling redundant court buildings has contributed more than 22 per cent to the total cost of a seven-year £1 billion reform programme launched in 2016.
These reforms are the most ambitious in the world. Anyone can now log onto the gov.uk website — despite promises that the service would be given its independent judicial branding — and bring or defend a small money claim, apply for probate or seek a divorce.
But, in a report published just before parliament was dissolved for the general election, the Commons justice committee reported that “poor digital skills, limited access to technology and low levels of literacy and legal knowledge raise barriers against access to new services provided by digital means”. MPs said that the courts and tribunals service had not done enough to support vulnerable users.
People who could not complete forms online needed face-to-face help at walk-in centres. Those who needed to reach rural courts by public transport should no longer be required to leave home before 8 am or return after 6 pm.
Though Susskind keeps an eye on these little local difficulties, his own sights are set much higher. New technologies, he says, “will allow us to deliver court services in ways that were neither feasible nor imaginable a few years ago”.
That’s because what we have seen so far is merely the digitisation of existing processes. Thanks to video links, the parties no longer need to be in the same place at the same time. But the proceedings are still recognisable as successors to the courts established around 900 years ago.
Next up will be asynchronous hearings. Instead of the parties being in different places at the same time, they and the judge can be in different places at different times. You file your claim and evidence online; the judge assesses it a few hours (or days) later and sends the defendant some written questions; the defendant responds within a few days; and the process continues until the judge is ready to rule.
What other disruptive changes we can now expect? The phrase “artificial intelligence” springs immediately to mind. “Ah, robot judges,” says the sceptical lawyer. “You’re not going to tell me that a computer could decide whether it was unlawful to prorogue parliament for five weeks in the run-up to Brexit — or even to predict the outcome?”
Not at all, says Antoine Dusséaux, co-founder of the legal search engine Doctrine. “If human experts cannot predict the outcome of a case, neither can a machine.” But by analysing a large number of judgments it may be possible to predict how an individual judge will decide something like an asylum application.
The judiciary in Dusséaux’s native France is so alarmed by the emerging litigation prediction and analytics sector that the French government has recently made it an imprisonable offence to “evaluate, analyse, compare or predict” the professional practices of named judges.
However wistfully British judges may look at this reform, it is hard to imagine similar restrictions on freedom of expression being imposed in the UK. If they were, the machines would probably find a way round them.
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