You might think publishing an open data strategy should currently be well down the list of HM Courts & Tribunals Service priorities. Not so, says Dr Natalie Byrom, research director of the Legal Education Foundation: ‘There is no better moment than now for improving the collection and sharing of data – from the characteristics of court users to the publication of judgments.’
Byrom was commenting on HMCTS’s response to her report Digital Justice, published a year ago following a three-month unpaid secondment to the Ministry of Justice. Digital Justice concluded that the £1bn courts reform programme creates an unprecedented opportunity for sharing data about the justice system to improve access to justice.
Its recommendations included disseminating judgments for free and in a structured, machine-readable format. ‘In a common law system, providing access to judgments is crucial in order for individuals to understand their legal position and initiate or defend legal claims,’ the report said.
Covid-19 cannot be an excuse. Rather, the impact of the pandemic on the court service has shone a spotlight on why it is more important than ever to improve the quality of data collection
Legal Education Foundation
In its eight-page response, published after a year, HMCTS welcomes Byrom’s report and maintains that it agrees with almost all of her 29 recommendations. For example, it has already started work on collecting data on court users, particularly those with protected characteristics. It also promises to collect data on the outcomes of cases across different court processes, including online civil money claims. An ‘external-facing data catalogue’, to allow researchers and law tech innovators to know for the first time what data the courts system holds, is already in the works.
But HMCTS is more cautious when it comes to details. This is not surprising given the circumstances in which data about individuals is collected by the courts. ‘We take seriously concerns about risks to privacy for victims, witnesses, complainants and defendants,’ the response states. And in a reference to judicial suspicion about the use of technology to analyse and compare individual judgments, it notes: ‘It is also important to recognise the potential risks to judicial independence.’
This caution applies even to the most basic data. Byrom proposed as a starting point that HMCTS consider introducing unique identifiers for individual users to enable proper studies to be made on access to justice and outcomes. HMCTS agrees that understanding of users ‘should be deepened’, but says unique identifiers ‘are not part of the current scope of work’.
On the dissemination of judgments, the Byrom report condemned the current system as ‘opaque and complex’ and HMCTS merely says it accepts the principle that ‘more work is needed’ on access to judgments: ‘This is a complex area and we will work with [the] MoJ and the judiciary to develop proposals over the next 12 months.’
HMCTS says it is committed to becoming ‘an increasingly data-driven organisation’. It recognises what it calls ‘potential interest from a wide range of users’ and supports ‘properly governed access to data to catalyse growth and innovation’. This includes for the first time depositing court data with the Office for National Statistics to allow ‘accredited researchers’ to securely access de-identified material.
But the Legal Education Foundation says progress is ‘disappointingly slow’.
‘Covid-19 cannot be an excuse. Rather, the impact of the pandemic on the court service has shone a spotlight on why it is more important than ever to improve the quality of data collection to enable the digital transformation of the court service.’ It points out that the time to embed such procedures, including the necessary safeguards, is when systems are being developed rather than expensively adding them as an afterthought.
There is a broader issue. ‘One of the government’s own key objectives, rightly, is to improve access to justice for all whether that means white working class men in Wakefield, inner city black teenagers in Tottenham or disabled pensioners in Ipswich.’ Unless the Byrom recommendations are implemented, services will continue to be designed without the necessary evidence that shows that they are fair to people from different backgrounds.
‘It will undermine the whole point of the reform programme to improve the judicial system, reduce costs and ensure everyone has access to justice. The government will have failed its own test.’