Digital Justice Strategy:A view from the courts
Speech by Lady Dorrian at the launch of The Digital Strategy for Justice in Scotland
Victoria Quay, Edinburgh
20 August 2014
It is common knowledge that High Court judges are not renowned for their radical tendencies or willingness to embrace new ideas.Indeed, the last Lord Chief Justice of England and Wales, Lord Judge,expressed his concern that those on the bench were viewed as “working in an old-fashioned, fustian atmosphere, with old-fashioned, fustian colleagues”[1].
But we all know that this reputation is ill-deserved – certainly North of the Border, and no doubt in England and Wales too. It should therefore come as no surprise to you that both the judiciary and the Scottish Court Service are keen to pursue, and pursue vigorously the current agenda to ensure that our justice system embracesthe digital revolution – and indeed anticipates where it might take us next. And that is because we believe that such modernisation is essential to maintain and enhance the quality of the administration of justice in Scotland.
That need to modernise arises from a number of sources. At the most basic level, it arises because thecurrent justice system suffers from a number of problems that need to be addressed, and doing so may involve solutions in which new technology will play a key part. Even though there have been substantial improvements to criminal procedures over the past fifteen years, the problem of delay and churn in the system is a persistent one. It seems that it is taking longer for cases to come to a conclusion, particularly in the busiest courts.There are of course a variety of factors contributing to this.Cases are becoming more complex, with a greater array of technical and forensic evidence that requires analysis and careful presentation in court. Video evidence needs time to be examined thoroughly.Witnesses who are cited for court maynot turn up on the appointed day. There may be issues around the timely disclosure of evidence. All of these factors might be mitigated by the application of digital solutions – as evidence can be collected and shared electronically, for example or witnesses reminded of their need to attend court by text or email, as now happens. There are technical fixes to many of these problems which we can and must pursue.
But there are more fundamental reasons why it is important to ensure the justice system keeps abreast of the digital revolution. In any modern society, the administration of justice must retain the trust and confidence of the people it serves. And it will only do that if it keeps pace with the times, and remains relevant to the experience of the people and organisations it serves. We are now in anera, accordingto research published earlier this month, whenBritons spend more time using technology devices than they do sleeping.[2]If people and businesses communicate instantly by email, Skype or Facebook, they will expect public services to do likewise. They will increasingly failto understand, or have sympathy with, any system that still relies on extensive documentation, sent by post, and by the requirement to appear in person for the handling of routine matters. And yet, as the Lord Justice Clerk set out in a lecture last year to the Law Society at Murrayfield, many of the rules and procedures we apply today, particularly in our criminal courts, are little changed from the Victorian era.
And the need to modernise also stems from the fact that technological innovation represents a huge opportunity – an opportunity to make justice more accessible to a wider number of people, to make evidence more reliable and more readily available, and to make processes and procedures more efficient. This is not just about fixing the problems of the current system, tinkering with what we have; it should be about taking advantage of new technologies to design a justice system that will meet the requirements of society in years to come. That means a system which is truly accessible to all: digital innovation will allow greater transparency in proceedingsmake it easier for people to participate in the system - whether making applications, submitting documents, giving or providing evidence, paying fines – wherever they are and at a time that suits them. We should also aspire to a system where courts always consider what is genuinely the best evidence available, in the interests of justice; and a system where cases can be properly managed throughout to deliver timely, effective and clear decisions.
We should acknowledge the progress that has already been made. We have, for example, already seen the introduction of live TV links in certain situations to make court appearances more efficient and effective. Appeals against sentencecan now be carried out using a video link to the prison; and this is done whenever possible. I know that there is further work on extending the use of video links to other parts of the system, such as between agents and prisons, and between the police and the courts. We should grasp the opportunities that this presents.
Digital practice has penetrated the “old-fashioned, fustian atmosphere” of judges’ working lives. There now exists the “Judicial Hub”, a dedicated online facility for judges and sheriffs, containing news, links to guidance, checklists, bench books and to training opportunities. It is an invaluable resource. If you will permit me, for a moment, to bring things to the personal level, since it might help illustrate some of the practical effects, my own practice is routinely to take all notes electronically: and to ask for all documents – pleadings, productions, authorities, notes of argument and submissions – to be provided in electronic form. That helps me make my notes more accurate (and legible) and also helps me get my written opinions out more speedily when the case is done. Thus, for example, a five-week civil proof where the documents amounted to 1000s of pages was rendered far more easy to manage by putting all the documents onto DVD, and making them accessible through one laptop while I could continue to take my notes on another. This is an approach which,increasingly, other judges are adopting.
The benefits of some recent innovations are yet to be fully understood and realised. The Digital Strategy makes reference to Police Scotland’s consideration of the use of body-worn cameras. We know also that the Metropolitan Police in London are currently undertaking a major trial of this technology, using the most up-to-date equipment available. There are a number of issues to consider, not least relating to the storage and possible editing of the recorded images. But this is clearly a potentially powerful source of real-time evidence; the justice system should look to make full use of it when the technologies are proved. This will mean having the right infrastructure in the Police service, the Crown Office, Defence agents offices and the courts; a widespread understanding of how best to use this kind of evidence; and appropriate adjustments to the law to allow its admission in court in a manner that is fair to all parties. But this should – and must – be achievable.
For me, one of the most important statements in the Strategy comes towards the end, at the bottom of page 10. It is the commitmentthat “we will revisit and revise the Justice Digital Strategy over time to take account of changing circumstances and improvements in digital capability”.
If there is one certainty, it is that technology will continue to develop, and with itpeople’s expectations of how the courts and the justice system more widely should operate. We need to continue to look ahead, and anticipate – as far as we can – how new technologies will allow us improve our processes and procedures. That is why the judiciary and Scottish Court Service areexploring the scope for increasing the use of pre-recorded video evidence in criminal trials.
At first sight, there are potentially huge benefits to be gained from capturing evidence from witnesses, available for use in court, at an early stage. These benefits might come in a better quality of evidence, with witnesses recounting events only hours or days after the event, rather than months or years; they may come in better case management, where the principal evidence is available to all sides at an early stage in proceedings, irrelevant material can be edited out and issues resolved earlier; and they may come in significantly reducing the amount of churn in the system caused by witnesses failing to attend court on the appointed day. This exploratory work is in its early stages, but it is an indication of our determination to keep looking for ways in which the increased quality and availability of technology can help us improve the quality and accessibility of justice.
I do, however, sound some notes of caution. New technology is not a panacea, and can present more problems than it solves. Our experience of teething problems with the video links in the High Courthas made it clear that the best results come only whenthe equipment is of sufficiently high quality. This is something we have heard from other jurisdictions at the forefront of digital justice practice, who have said that poor quality video evidence, for example, can be a real barrier to a proper and fair consideration by the finders of fact. It is worth investing and investing well in the right infrastructure. And that particularly applies when establishing links to remote areas, where access to web services can still be an issue.[3]
It is also imperative to acknowledge that changes to the way the justice system operates, and the equipment it uses, will only succeed where there is a willingness on behalf of all practitioners to make it work. Changes in technology and changes in procedures cannot happen in isolation – they must be accompanied by changes in the attitude and behaviours of those using the new technology. It is very encouraging that the Digital Strategy has been the product of wide-spread collaboration across the justice system; this suggests that there is a willingness to embrace change in all quarters, at least at the leadership level. It is vital that this willingness is spread further, and that is best done by making real - for all those involved - the benefits that innovation will bring. Examples from around the world show that where all the interests involved – judiciary, courts, advocates, solicitors, government and others can agreeto a new approach, provide the training and support to their members or staff that is necessary, and seek to embed new methods in working practices in a way that supports a common agenda, then real progress can be made.
So the view from the Bench, and from the courts more generally, is this: we are excited by the opportunities that digital innovation may bring – to speed up our procedures; to make justice more accessible and more manageable; to improve the quality of the evidence placed before the courts; and to maintain, or even enhance, the credibility and trust placed in the justice system by Scottish society. We know that change is not always made easily, especially when dealing with such a complex subject as the law and with such an extensive network of interests. But change we must, and it is best we do so enthusiastically, with an eye for the gains to be made. The judiciary and courts are keen to play their part in making this happen, and Ilook forward to the development of a digitally enabled, flexible and innovative system of justice in Scotland.
[1] In his Foreword to The attractiveness ofsenior judicial appointmentto highly qualified practitioners: Report to theJudicial Executive Board, Professor Dame Hazel Genn DBE, QC, December 2008
[2]Ofcom: The Communications Market 2014,see 7 August 2014.
[3] Nb this was strong message from our Australian contacts, with ref to video links in rural Australia.