The digital court revolution has begun, but what will it mean for lawyers and litigants?
Hidden away in south London, in one of those anonymous government tower blocks that have sprung up near mainline railway stations, you will find a huge open-plan office full of people typing on computers. Almost every wall is festooned with a colourful array of stickers and notes, carefully positioned to mark each stage in some inexorable sequence.
The people writing these notes might have been planning the launch of a new sugary drink or designing the layout of a shopping centre. In fact, these programmers and prosecutors, these automation testers and advocates, are doing nothing less than computerising the entire court system of England and Wales; and they have little more than four years to get it done.
To inspect the fruits of their labours, I dropped in on the senior judge at Southwark Crown Court, where a digital case system is being piloted. ‘Not long ago,’ Judge McCreath told me, ‘you would have seen piles of files all round my room. Now when I go into court, all I need is my laptop.’
Sure enough, McCreath was to be found sitting in court a few minutes later, annotating witness statements on a small screen in front of him. There was something faintly anachronistic about a figure in a scarlet gown and an 18th-century wig, touch-typing on a MacBook Air. But the illusion of a paperless court was somewhat shattered when a young defence counsel rushed in from the cells and asked to hand up a written statement that her client had just signed. The judge told her firmly that she was meant to have uploaded it into the system – presumably by photographing it with her smartphone. He reluctantly adjourned the case for 10 minutes so that she could complete the necessary forms online.
But filling in forms on a computer is nothing new. Most new claims in the employment tribunal are already started online, Sir Ernest Ryder, the senior president of tribunals, said in a lecture this month. ‘But once the “submit” button is pressed… a civil servant at the other end has to print the e-form and make up a paper file.’
As Sir James Munby said recently, IT should be used to do the things that only IT can do. The president of the High Court Family Division told lawyers that, in a scheme to be piloted next year, people seeking a divorce or applying for probate will be presented with an interactive series of questions and answers. Each question they are asked will depend on the answer they have just given.
The same approach will be used in the online civil court being designed by Lord Justice Briggs for damages claims worth up to £25,000. Ominously for some, Briggs said it would be ‘the first court ever to be designed in this country, from start to finish, for use by litigants without lawyers’.
As Munby confirmed, ‘some proceedings will be conducted almost entirely online, even down to and including the final hearing. The judge… will interact electronically with the parties and, if they have them, their legal representatives.’
Of course, this is hugely worrying for solicitors. Digital courts are being designed on the assumption that users will be unrepresented. But it has long been the reality that, without legal aid or some other kind of financial backing, most people cannot afford to litigate. The courts are simply recognising, and adapting to, the facts of life.
Less work for lawyers, then, but less justice for litigants? What if you can’t manage the technology? What if the only party who can afford legal advice is your opponent?
‘The judiciary will always become involved when you reach a stage in the process that requires a judicial mind,’ Lord Justice Fulford assured me. Court staff would help litigants use new technology and the proceedings would remain open to the press and public.
As senior presiding judge for England and Wales, Fulford heads the courts modernisation programme. ‘We’re at the beginning of a process that takes us out of a court system that the Georgians would have recognised,’ he said in an interview for Radio 4’s Law in Action.
Online courts will improve the way we do justice, Ryder added. The social entitlement chamber, which deals with appeals against welfare decisions, would soon be piloting online continuous hearings. These will allow an appellant, the respondent government department and the tribunal judge to create and respond to case papers online. The parties will not need to attend court or even join an online hearing at the same time.
Things will inevitably go wrong – but judges are confident they can be fixed without undermining the entire project. As Munby said, the courts modernisation programme is a visionary ambition, unprecedented anywhere in the world.