Sir Brian Neill, who celebrated his 92nd birthday this year, was the judicial trail-blazer in all this. Mine is the first of the seven essays published together in 2003 in book form under the title “Essays in Honour of Sir Brian Neill: the Quintessential Judge”. The book was edited by Mark Saville and Richard Susskind and presented to him at a party given by his many friends to celebrate his 80th birthday. Its introduction contains a tribute to him, written jointly by Lord Woolf and Lord Bingham, both of whom had known him for many years. They spoke of
“his unrivalled contribution to the law of defamation; and his far-sighted, pioneering and determined work to apply the new world of information technology to the old world of traditional court practice.”
My own essay traced the history of the efforts to introduce technology into the judicial process from the time I first met Brian in the summer of 1985 to the dreadful moment in July 2002 when the Treasury refused to support the visionary plans we put forward for the modernisation of our entire court system. It now seems to have changed its mind, but I fear that in many ways it may be too little, too late. We shall see.
Technology and the Judicial Process
This essay was first published in “Essays in Honour of Sir Brian Neill: The Quintessential Judge” (Lexis Nexis UK 2003)
On 15th July 2002 the Government announced its spending plans for the next three years. After 15 years of travail, we had just embarked on a well-designed programme of court modernisation, in which IT was to play a central part. Judges and the civil servants who served them were working together towards common goals as never before. And then the bubble burst. No extra money at all was earmarked for modernising our civil and family courts, although the strains caused by years of under-investment were most obvious in that corner of the court system. Again I had to comfort the walking wounded. I had a very strong sense of déjà vu.
I came onto the law and technology scene in 1985. I had just spent two years away from legal London as Counsel to the Sizewell Inquiry, where I had seen the benefits which well-planned applications of modern technology could bring. Soon after I returned to my practice as a barrister, I was invited to help form the Bar’s first ever computer committee. Our first chairman was a silk who knew what computers could do from his experience as a director of a regional newspaper company. One of the committee’s other members was a young barrister who worked for Rank Xerox. He told us of the advantages of the work station which brought electronically to his desk draft documents, letters and memoranda from his company’s outposts.
One of the committee’s early successes was a series of workshops run for barristers and barristers’ clerks by members of the Society for Computers and Law. The society had been formed in 1973, with Lord Justice Scarman as its first president. Twelve years later Lord Justice Neill had taken over as president. When I went to see him in his room in the Law Courts I remember he told me that he thought he had joined the movement far too early. Since 1973 the cause of technology and the law had gone backwards almost as often as it had gone forwards, particularly with one over-ambitious project. In 1985 the Bar’s resistance to computerised accounting systems was fuelled by over-zealous salesmanship by vendors who did not understand the idiosyncrasies of barristers’ charging systems. Fee notes were still sent out manually from barristers’ clerks’ rooms throughout the Temple and Lincoln’s Inn.
He said, however, that things were now going forward again. He had nearly persuaded the Lord Chancellor (Lord Hailsham) to approve the creation of a joint committee of civil servants and practising lawyers who would study the place which technology could play in our court system. This led to the formation of the Information Technology and the Courts Committee (ITAC), with eight delegates drawn equally from the Lord Chancellor’s Department (LCD), the Home Office, the Bar and the Law Society. Lord Justice Neill was our first chairman, and he told us at our first meeting in December 1985 that the general justification for our existence was the need to improve the running of the courts and to reform the costs of legal services by establishing better chains of communication between Government departments and the legal profession.
One early opportunity for us arose out of the consultation processes being conducted by the Civil Justice Review. A powerful inter-disciplinary team, headed by an experienced businessman, had been appointed by the Lord Chancellor to advise him how
“to improve the machinery of civil justice in England and Wales by means of reforms in jurisdiction, procedure and court administration, and in particular to reduce delay, cost and complexity.”
In February 1986 the Review published a consultation paper on personal injuries litigation. We set up a small working party to respond to it. The paper expressed the view that the present arrangements were “inefficient, dilatory and disproportionately expensive”. I suggested that we should look forward over a 15-year time span when considering how sensible use of modern technology could help, rather than propose any instant solutions.
Some of the ideas we canvassed – for instance, the use of expert systems to help the high street litigation solicitor advise his clients with accident claims – were perhaps too visionary for a real world. Others, such as legal information databases, computerised judicial case control, and widespread use of electronic communications, are today’s accepted wisdom. Ten years before Lord Woolf’s final report, and 16 years before the Government declined to give significant support to the embryo civil and family court modernisation programme, I wrote:
“The advantage of looking at personal injuries litigation as a discrete topic is that this approach is building on what have been the success stories in court administration on the civil justice side in the last 20 years, where an individual discrete topic (employment disputes, commercial disputes, building contract disputes, administrative law disputes) is assigned to a particular group of judges with their own supporting staff: there is no reason why a comparable technique should not be carried over into personal injuries dispute resolution.
If a judge, assisted by a team of all the talents comparable to the Advisory Committee in the Civil Justice Review, emerged from the review process with the personal responsibility of overseeing and putting into effect the ideas for harnessing modern technology in support of personal injuries litigation which are ultimately approved, and clear lines of communication were established with court users, lay and legal, and the suppliers, such a structure would probably ensure that the new thinking was smoothly implemented up and down the country.”
In the end ITAC submitted two papers to the review. In July 1986 we drew attention to all the different ways in which technology could help solve some of the issues with which the review team was grappling in the field of personal injuries litigation. A year later we advocated greater investment in debt recovery systems and in listing, case management and management information systems. No doubt driven by Law Society caution in the search of a consensus we were hesitant about advocating over-rigid systems of computerised case control from the centre.
The Review team’s views were clear. In their final report, published in 1988, they said crisply that computer facilities for the management of court lists and individual cases should be made available as a matter of priority. They were equally crisp in expressing their view that judges and administrators each had a role to play in running the civil court system. They recommended that a major programme should be mounted with the aim of improving the quality and quantity of management information available to both judges and administrators, particularly at circuit and local level.
Very little was done to implement either of these recommendations, so far as the judiciary was concerned.
I have in my possession many of the papers which record the meetings and discussions over the next ten years. Throughout that time far-sighted judges, led by Sir Brian Neill and, later, Lord Saville, pressed for greater investment in technology to support the judicial function. It is easy with the benefit of hindsight to see what went wrong.
LCD was a small department. It had grown up haphazardly. The Lord Chancellor’s Office was originally formed to support the judges, although the Lord Chancellor had also had a traditional responsibility for the condition of our civil and family law. Over the years there had been accretions to its functions. The most notable of these had been in 1971, when it took over the responsibility of running all our criminal courts, and in 1988, when the state took over from the Law Society the responsibility for running a demand-led legal aid scheme whose finances were running out of control. In comparative terms, however, the department spent so little money that it was only quite recently that it was considered appropriate or necessary for the Lord Chancellor to be supported by a junior minister in the House of Commons.
In those days the judges were generally content that the Lord Chancellor could obtain sufficient resources from the Treasury to meet their needs. In turn they respected the convention that because they could not be accountable for the expenditure of public money it would be inappropriate for them to be anywhere near the place where decisions on spending priorities got taken. In any event most judges possessed little by way of administrative or management skills, and nothing at all was done to help them acquire them. On the whole judges were agnostic about issues relating to the appropriate way to run the courts. Two cultures co-existed side by side in the courts, the judicial and the administrative, each dependent on the other, but with few points of well-informed contact in the places where policy was being formed.
Another tradition was that there was very little cross-fertilisation of staff between LCD and other departments of state. While investment in IT steadily increased across Whitehall, the court system remained an oasis of manual records and manual accounting. In any event there was very little money for forward investment. The department only knew for certain what money was allotted to it for a year in advance, and IT projects had to justify themselves by being able to pay for themselves quickly in terms of the savings they achieved. While it was wise to avoid rushing into major spending projects without careful small scale piloting, no strategic plan existed to support future investment in court IT systems, or at any rate none which the judiciary was invited to take part in devising. Year by year in the early 1990s I had to comfort the head of the department’s small IT branch after its fairly modest request for increased resources had been turned down.
In February 1989 a working party of the Society for Computers and Law prepared a powerful paper advocating the use of computers in the Official Referees’ courts. These courts were chosen for special treatment because the six Official Referees were all housed together in a newly refurbished court building, and the courts’ clientele contained many for whom the use of modern technology in their businesses was a commonplace. Most of the recommendations in this report formed part of the thinking behind the court modernisation plans developed by the Court Service a decade later. Its message was summarised in these terms:
“We conclude that the computerisation of the administration will:
(i) provide the court with the ability to monitor and report on the state and progress of all cases in the Official Referees’ list, and take appropriate early action;
(ii) improve trial listing performance;
(iii) encourage early settlement of cases by monitoring compliance with orders such as a costs estimate order, or other orders requiring action to be taken which is directed to be notified to the court.
(iv) speed up the production of formal orders and certificates;
(v) cater for cashless payments of fees;
(vi) remove the need for stamping of documents to be carried out in the Royal Courts of Justice;
(vii) automate accounting procedures.
Further, if the proposed computerisation of the administration is linked to an external network accessible to solicitors, this would:
(i) provide for electronic issue of writs;
(ii) provide for the electronic issue of summonses, and the fixing of dates for the hearing;
(iii) enable electronic communication with court staff or court clerks, to supplement the use of the telephone and fax”.
Very little came of any of this. The report, however, coincided with the development of a legal information communication system called LIX by a barrister, Sean Overend, and a solicitor, John Mawhood. This was later to be adopted as the basic tool for electronic communications and conferencing between members of the judiciary, a role for which it is still in use today.
At this time two major projects were consuming most of the resources available to LCD’s planners, so far as IT support to the courts was concerned. The first was called CREST, a project designed to automate the back-office systems within the ninety or so Crown Court centres. The other was the construction of a Summons Production Centre, coupled with a Computerised Bulk Claims Centre, at Northampton. This provided an electronic debt recovery service to a number of major creditors. They would post their unpaid final invoices to Northampton, which would issue court process electronically, and follow up with the issue of a default judgment electronically if the debtor showed no inclination to defend the claim. The department hoped at that time that it might be able to reinvest the savings in court staff which these projects would achieve in other IT investments which might not be able to show such dramatic short-term savings.
A 1990 departmental IT strategy identified the need to give priority to products which had the potential for making the most effective contribution to the department’s business needs. Strategic thinking was inevitably inward-looking, because this is what the Treasury required. LCD’s business managers were charged with evaluating IT projects by criteria which included “return on investment”, “strategic match”, “policy analysis review effectiveness” and “management information for operational effectiveness”. The judges were not invited to take any real part in the creation of these strategies. Savings in judicial time, or greater efficiencies in the services the courts could render to litigants (other than by back-office efficiencies), did not seem to feature. The quality of justice was not an attribute which civil servants were mandated to measure in money terms. It did not therefore appear in their calculations.
How different things were in Australia. Among my papers is the April 1990 newsletter of the Australian Institute of Judicial Administration. In Western Australia the Chief Justice was taking the lead in organising case management seminars. In that jurisdiction a local area network linking judges and masters of the Supreme Court was already being installed. A similar tale was told by a member of the Supreme Court of South Australia. There was also a meeting in Melbourne of 24 Australian and New Zealand judges, summoned for the purpose of comparing notes on the state of computerisation in the courts in each of their jurisdictions. The New World was forging ahead of the Old. It has been in the lead ever since.
In 1990 the Head of the Court Service invited the Deputy Chief Justice to help the Service identify the ways in which computers could be used to help judges. For this purpose a small, broadly based group of judges, chaired by Lord Justice Neill, met three or four times a year to examine the possibilities. One of the driving forces behind the Judicial IT Help (“JUDITH”) project that emerged from this initiative was Judge Michael Mander, of Shrewsbury County Court, who had attracted national media publicity by using his laptop PC to take notes when sitting on the bench for a jury trial. Another was Judge Anthony Thorpe, later the resident judge at the Chichester Crown Court, who was aghast on his appointment as a civilian judge to discover the lack of the IT support for judicial officers which had been taken for granted within the Armed Services. Sean Overend, now a circuit judge, was also a tower of strength in those early days.
To launch this new initiative the judiciary was allocated one tenth of one civil servant’s time and two tenths of another and, crucially, enough money to hire a consultant, Mr Peter Hardie-Bick, whose task it was to go out into the field and prepare a report on the way in which the provision of computers could help the judiciary do their jobs better.
His report, delivered in 1992, was positive. In addition to a word-processing function, he identified a communications function as one of the possibilities we should explore. Judges do lonely jobs. A lot of them are on the move from court to court, with quite limited library facilities available, and some High Court judges have to be away from their base, and their homes, on circuit for weeks at a time.
The report provided the necessary leverage for the release of money for a pilot scheme, embracing 25 judges, to try out the possibilities. WordPerfect 5.1 for DOS was chosen for word processing, since this was what the Court Service used at that time, and LIX developed into FELIX, with a variety of open and closed conferences, a messaging system which allowed for the attachment of files, and the facility for posting longer files centrally, available for draw-down by any judge who wished to read them. The laptops, supplied by Siemens Nixdorf, who provided helpdesk support, had a 186 central processing unit, which seemed at that time to be powerful enough for any foreseeable judicial future.
This pilot scheme was a success, and with the help of a convincing business case JUDITH in 1993 chopped off the head of Holofernes, in the form of Treasury scepticism, and sufficient money was allocated to provide for a total of 300 judges over a three-year period. During this time an additional tranche of money enabled the Project to acquire 120 more powerful Pentium desktop computers, equipped with Windows software and CD-Rom drives. The Court Service had by now changed to Word for Windows, so that this was supplied as well. The Pentiums were allocated to computer-literate volunteers who thought they could cope with this equipment without training support. This freed up most of their laptops for redistribution to judges on the steadily increasing waiting list.
Towards the end of 1995 the Project started running into difficulties. It had been a huge success, so far as most of the participants were concerned, but certain problems were already evident, and the Government required a new consultants’ report, and a business case based on the consultants’ recommendations, to justify any further expenditure. At the same time the newly created Court Service Agency was having to turn to the equally new Private Finance Initiative (“PFI”) to support investment like this, and 1996 was consumed by the consultants’ investigations and the tendering process aimed at identifying the new PFI supplier.
In the meantime, about 100 more judges who possessed their own computers were supplied with the FELIX software and a modem. By this time FELIX had been developed for Windows users, and WordPerfect 6.1 for DOS was supplied to the JUDITH judges who still possessed their original laptops. By the end of 1996 380 judges – one third of the total – had their JUDITH computers. There were another 200 on the waiting list.
The consultants, Joyce Plotnikoff and Richard Woolfson, stated, in unqualified terms, that the achievements of the Project to date had been impressive. Everybody they had met was of the view that it had made a significant and valuable contribution. Descriptions of it included the epithets “resounding”, “brilliant” and “tremendously valuable”.
Two innovations which potentially had wide application in both the civil and criminal process were the ability of some judges to generate copies of their orders and directions in court and to distribute them to the parties on the spot, and the use of computers to expedite the process of releasing cases from a High Court judge to a circuit judge approved to handle High Court cases.
They also reported that the arrival of FELIX had had a profound effect on judges’ ability to communicate with each other, particularly for those judges who sat outside London. The Project had been instrumental in changing many judges’ attitudes to the use of technology from scepticism to enthusiasm. Until July 1996 it had cost only £1.6 million (excluding Court Service staff costs), or rather less than £4,000 for every judge involved.
The consultants also identified a number of concerns which had long been obvious to many of us. First among these was the need to provide resources for training, since the Project Board had never been resourced for training judges (some of whom had very limited computer skills) in a properly structured and professional way.
Other criticisms related to the Project’s lack of structure or focus (which was inevitable owing to the comparative lack of staff support), problems created by the wide variety of different applications which individual judges added to their systems, and problems connected with the use of helpdesk support, lack of user discipline, the poor motivation of some of those to whom equipment was initially issued (leading to its non-use), and a number of different types of concern about security.
Many of the computers allocated to the Project in its early days were incapable of being upgraded. By 1997 these could be treated for all practical purposes as obsolete. The power and capacity of the Pentium desktops provided a clearer indication of the likely scale of judges’ computer needs in future.
The reason why things stopped still between 1995 and 1999 was not for want of judicial enthusiasm. The impasse stemmed from factors wholly outside judicial control – the hiatus created by the switch to the PFI as the means of financing public sector projects of this type, the Treasury’s curious belief (never, it seems, debated in Parliament) that subject to a few exemptions the whole of the civil and family justice systems could reasonably be expected to pay for themselves, and the adoption of cost-benefit formulae much more suited to measuring the value of back-office as opposed to front-office systems.
Perhaps more important was the realisation that future provision for the judiciary should lie in the creation of an Intranet, with the judges’ terminals being serviced from central sources, rather than a proliferation of standalone PCs, each equipped with their own software and their own CD-Roms. Although this need was clearly perceived in 1996, very little progress was made towards networking the courts until 2002, and eventually an expensive new generation of standalone PCs had to be ordered, following a four-year standstill.
It was appreciated from the outset that the adoption of policies based on an Intranet would throw up its own set of problems, since judges are not deskbound office-workers. They spend much of their days in court, and many use their computers for judicial duties at home in the evenings and at weekends. Any forward planning had to take these considerations on board. Of 79 judges who answered a survey in 1996, 27 said they used their computers in court, 69 in chambers, 9 in judges’ lodgings, 11 while travelling and 71 at home: these figures were not, of course, cumulative. 81% of those who responded said they made use of the portable nature of their machines.
In 1997 the main judicial needs were summarised as:
- Word-processing and note-taking in court
- Communications with other judges and court administrators
- Access to on-line databases (or, for the time being, CD-Roms)
- Judicial case-management
So far as word-processing and note-taking were concerned, many judges could not now do their job without their word-processor, and a small, but increasing, number were using their laptops for taking notes in court. None of the 550 circuit judges, the 330 district judges or the other members of the full-time judiciary below the High Court bench were provided with clerks or secretaries, and for many of them the computer had become an essential part of their working kit. At this time we had to plan for a change from DOS-based WordPerfect software to Windows-based Word software, with all the transitional difficulties this would bring, particularly when resources for training in the past had been so scarce.
When I sat in the Court of Appeal for seven weeks in April-May 1997 to clear 130 outstanding appeals and applications concerned with Order 17 Rule 11 of the County Court Rules, we used FELIX to obtain useful information from district judges about the continuing problems they were encountering over the application of this difficult rule. In the continuing absence of a network at the Royal Courts of Justice, we also used FELIX to circulate drafts of our judgment (in Bannister v SGB plc) to each other, and as one of the three tools we used (the others being the Internet, and the despatch of hard copies of the 70-page judgment to every main county court centre in the country) to ensure that every judge exercising civil jurisdiction in the county court would have access to a copy of the judgment within a week after it was delivered.
The consultants had also prepared a complementary report in 1997 which described the way in which technology might be harnessed in aid of judicial services in future. They said that the challenge now was to create the organisational structures to realise this vision of the future. Some fundamental issues had to be resolved first:
- Who should speak for the judiciary and how could they represent the whole range of judicial opinion within a single coherent view?
- What priority would be given to judicial needs in discussion with the new PFI contractor given that the funding must come out of the Court Service budget?
- How would the needs of the legal profession and other justice system agencies be taken into account?
They observed that in an integrated approach the services to be provided would have to be costed and prioritised according to the benefits they delivered to the justice system as a whole. These benefits might take the form of cost savings or speedier case processing, but they might also result from improvements in the quality of justice. The discussion of these issues would have to encompass, in particular, the ways in which judges could work more effectively alongside court and administrative staff. It should also take account of the examples of good practice encountered during their study. The courts’ library services and the Judicial Studies Board would have to be included in the discussion. They said, correctly, that integrating these different strands into a coherent strategy would require an understanding of the court environment, the judicial function and the technological options.
The scale of the continuing cultural difficulties we faced was recorded in a long paper I wrote in the autumn of 1997, soon after I succeeded Lord Saville as the Court of Appeal judge responsible for identifying and championing the judiciary’s short and medium term needs. By this time the Court Service had appointed two of its senior officials as project sponsors (for civil and criminal justice respectively), and each had a projects evaluation team reporting to them. The job of these teams was to identify the requirements of their business in sufficient detail to provide the basis for discussing an overall strategy for IT developments with the Court Service’s newly appointed PFI contractors.
In 1996 a judges’ group had been formed with the aim of providing some judicial input into the work of these teams (for example, explaining what was needed to ensure compliance with the Rules of Court). In its early days at least, the extent and effect of this consultation was patchy, although things improved as Court Service staff got used to the quite novel idea of judges working with them. In the autumn of 1997 a new Judicial Technology Group (JTG) was created under Lord Saville’s chairmanship. This had the aim of providing a more sharply focussed vehicle for collaboration. At its first meeting the two Court Service project sponsors affirmed their conviction that effective consultation with the judiciary in IT matters affecting the delivery of judicial services was absolutely essential. This positive declaration, made eleven years after ITAC was created, marked a milestone in the relations between the judiciary and the staff who served them.
Within the United States federal judicial system, and in many other comparable jurisdictions, a high level IT sub-committee of the Court Service Board would be chaired by a senior judge. Judges would also head the teams selecting and overseeing the different projects. Under the arrangements we were devising any judicial input would have to come to the Court Service’s IT sub-committee indirectly via the judicial members of JTG. These were very busy judges, some of them with a good deal of IT know-how but with no effective staff support and no budgetary responsibility for any of the decisions that were to be made. I described in my 1997 paper how the experiences of ITAC and its Civil Litigation Working Party (which I founded and chaired between 1991 and 1996) showed clearly that arrangements like this left the judges, who are at the apex of the system which delivers judicial services to the citizen, with a very superficial and unsatisfactory role. Those who took part in liaison meetings with Court Service staff were given no administrative backup at all. They were expected to do all the necessary work (apart from attending meetings) in their own time. The documentation they were asked to read and comment on could be quite bulky. Much of the next four years was spent in a search for solutions for these difficulties.
Examples abounded of the problems stemming from the absence of effective liaison in the past. Things had sometimes gone badly wrong when the development of IT systems for the courts took place without proper consultation with the judiciary. There was, for instance, a serious lack of liaison between Court Service staff and a group of district judges who had been involved in developing a system called DataCase. These judges had been assured that this system would be closely examined and that full advantage would be taken of the work they had done and the solutions they had found. They would also be consulted before any final decisions were made. In the event they were not consulted at all, and they later discovered that the installation of DataCase which they had put in place at the Court Service’s headquarters had never even been run, let alone studied.
Events then conspired to rob their efforts of any real value. Despite an early spectacular failure of the new “system” called CASEMAN, which was then being piloted for use in the back offices of county courts, it was by now too late to modify the pilot version to any meaningful extent before its roll-out. As soon as it was rolled out, the Private Finance Initiative was in place. As a result only a few further modifications could be made, so that the PFI contract, which embraced over 200 county courts, was based on the system’s existing functionality. Modifications the judges had been assured would be put in place had still not been made a year later. Immediately after this, what the Association of District Judges described as “the Attachment of Earnings fiasco” occurred. These events give me the opportunity to pay tribute to the enormous contribution made by a few highly skilled district judges, in particular Richard Stevens OBE, Bill Vincent OBE, Stephen Gerlis, Stephen Greenwood and Geoff Edwards, to the development of technology for our court system over the last ten years.
Another long-running difficulty resulted from the fact that CASEMAN’s order production systems from time to time generated orders which departed from the requirements of the Rules or from the intention of the judge who made the order. This was because those who designed the templates and the logic for using them were not lawyers, and they did not take advantage of the advice from experienced judges which they knew (or ought to have known) was on offer. The correction of these mistakes turned out to be a slow and expensive business. At the first meeting of the new Judicial Technology Group judges and senior officials alike resolved that they would learn from these mistakes. We agreed not to dwell on them any longer in the new collaborative atmosphere that had now emerged.
Between 1997 and 1999 two major processes were under way. The first was the development of the plans for what became known as the JT (judicial technology) project. Treasury sanction was obtained towards the end of 1998 for the provision of 1,000 modern laptop computers, to be supplied to the judiciary by the PFI contractors under three-year leases. The specification was superior to that of the old JUDITH laptops, and on this occasion the arrangements included the provision of three days’ initial training for every judge, unless it was obvious that this was not needed. Windows NT and Word 97 were the main features of the new specification, together with the indefatigable FELIX, some of whose features proved difficult for novice judges to master. Sadly, no provision was made for follow-up training for these novices.
The first tranche of 1,000 PCs were delivered between January 1999 and July 2000. By this time the approach of the Human Rights Act had led the department to approve arrangements whereby the judiciary was provided with Internet access via a specially designed portal. By this means judges, wherever they were sitting, could access the database of judgments of the European Court of Human Rights, and a very large volume of case law and statutory material. This development excited the interest of many judges who had not hitherto chosen to join the scheme, and approval was given for the purchase of a further 200 JT laptops. Since then, arrangements have been made for the surrender of laptops by judges when they retire, and for the provision of JT laptops, together with initial training, to new judges within a few months of their appointment to the bench.
At the same time valiant, but in the end wholly abortive, efforts were made by the Court Service to deliver IT systems in support of Lord Woolf’s civil justice reforms. The then Head of Civil Justice, Sir Richard Scott, believed strongly that these reforms should not be implemented until IT systems were in place to give the procedural judges the support they badly needed if they were to maintain effective judicial control from the centre. This wish was never susceptible of fulfilment. For one thing, the new rules and practice directions were forever being changed, and IT systems designers needed a period of stability in which to do their work. For another, there was insufficient know-how available on how to design an intricate set of new systems without the risk of another very expensive failure.
The judges on JTG, advised by Professor Richard Susskind, became increasingly anxious about what might happen. The systems that were being designed could not possibly have supported the more sophisticated modern systems that were bound to be needed in future. We feared that designers might be planning another one-storey building, like CREST and CASEMAN (and its half-sister FAMILYMAN), with shallow foundations on which nothing could be built on top. Our vision was of a 12-storey building, in which an electronic court file, serving the needs of the trial judge, would in due course take pride of place.
Eventually the Government decided to implement the reforms on 26th April 1999 without waiting for the IT systems to be put in place. Minor enhancements were made to the existing (wholly inadequate) systems, and for a short time additional court staff were allocated to help with the increasing load of paper the reforms would bring in their wake. In the Central Office at the Royal Courts of Justice, for instance, case files had to be created for the first time since those courts were opened in 1882. The paper mountain then grew and grew.
In the event, it turned out to be a wise decision to implement the reforms without waiting for the IT. In April 1999 the Court Service Board, led by their new chief executive, Ian Magee, bravely decided to stop all the development work and to devote their energies instead to some fundamental thinking about the way the civil and family courts should be delivering their business, and the role IT should play. Their decision was undoubtedly correct. Inevitably, however, it created a situation in which those courts faced very serious problems indeed because the judges applying the new procedural rules did not have the IT support they badly needed.
By now the gospel ITAC had been preaching ever since its formation in 1986 had become the accepted wisdom. The delivery of justice to the citizen in the modern world required the support of integrated IT systems. Initially the Court Service set out to deliver these systems piecemeal, with one set of arrangements being made for the criminal courts through what became known as the Crown Court Programme, and another set of arrangements being made for the civil and family courts. In addition, the 12 groups of administrative tribunals for which the Lord Chancellor was responsible were being managed under quite separate arrangements.
It was now taken for granted that there would be proper judicial involvement in all this planning. In its early days the projects within the Crown Court Programme were quite modest. They involved testing the capabilities of electronic presentation of evidence (“EPE”), digital audio recording, and video conferencing within the Crown Court setting. Plans were also prepared for the IT infrastructure needed by a modern Crown Court. Three circuit judges with great experience of criminal justice were on the boards overseeing these projects. A different project, financed by the Home Office, piloted the use of video links between a few criminal courts and their local prisons, a concept in which I had tried to interest the Home Office as long ago as 1986.
So far as civil and family justice was concerned, the new Court Service review threw up some challenging ideas about the way that local justice should be administered in future. Our civil and family court system has grown up and developed in a very haphazard way since a network of 497 county courts was first introduced in 1846. There have been huge shifts in population movement. New towns have grown up. Densely populated city centres have been deserted. Often a court closure occurred for no better reason than the expiry of a lease. There was little strategic thinking about the optimal location, or the essential function, of the courts.
The review compelled us to think whether our civil and family courts were in the right place, and whether they were all accessible by public transport. Were all the functions they performed a necessary part of the functions of a court? Could their advisory role be performed more effectively, and inexpensively, by other means? Were the links between the family jurisdictions of the magistrates’ courts and of the county courts working sensibly? How should the courts in the Royal Courts of Justice complex relate to the other civil and family courts in the Greater London area and beyond?
Then there were questions about the roles the judges were now required to play. Overall, there are many more judges in the lower level of the judicial hierarchy than there were 15 years ago. Judges are an expensive resource: far more expensive than the staff who serve them. Were we really making best use of judges’ times and skills? A clear message emerged that judges were spending far too much of their time sorting out muddled court files, or waiting for the information they needed, or doing things that could be done just as well by court staff or by technology. One then had to ask whether court staff were being provided with the training and the technology they needed, and what could be done to improve job satisfaction, for staff and judges alike, throughout the court system.
All these early questions threw up another set of questions. What are the best ways in which Information and Communications Technology can help judges and court staff? How can judges obtain secure electronic access to court files and lists and diaries so that they can manage their cases more effectively? What is the future of tele-conferencing and video conferencing and e-mail conferencing? What about voice-activated word-processing? On the back office side of things, how much court information can be sent to a central databank (which does not take up expensive space in a prime downtown location), to be called up by judges and court staff when needed? What are the confidentiality problems over public access to electronic court files? How much time and money will be saved if information is stored electronically and not manually? What are the implications for staff morale and motivation.
During the course of 2000 I joined the Court Service’s Modernising the Civil Courts (“MCC”) Programme Board. A senior judge had never previously been appointed to an executive board of this type. It was symbolic of an immense culture shift within a single decade whereby the power of IT had forced judges and administrators to work so much more closely together. My appointment stemmed from a request made in June 1999 to Ian Magee by the then Lord Chief Justice, Lord Bingham, to the effect that judges should be brought closer to the centre of the Court Service’s decision-making processes. During 2000 a number of pilot projects were initiated in civil courts, along the same lines as the pilot projects in the Crown Courts, but with greatly reduced financing, and early in 2001 a public consultation paper sought views on the way the Court Service’s thinking was moving. The response to this paper was very encouraging.
In August 2001 a representative judicial working group, led by Mr Justice Cresswell (who had led the Bar’s response to the Civil Justice Review 14 years earlier), published a report called “The Judges’ Requirements”. These five judges had been provided with a small amount of consultancy help, and they were given appropriate “judge-release” time so that they did not have to do all their work in the evenings and at weekends. At the beginning of their report they described some of the problems every judge in the country faces every day. The list began: “Insufficient staff – high staff turnover leading to the use of inexperienced staff – missing or chaotic files – court orders take too long to be drawn and are often drawn incorrectly – lack of proper administrative support for the judiciary”. Later on in the list they said that very few members of court staff had real IT expertise, and that there was a chronic lack of funds even for basic equipment. Senior Court Service managers would not disagree with the broad thrust of this analysis. Indeed, the MCC consultation paper had spoken in similar terms.
These judges concluded that there was a pressing need for common computerised information systems to be introduced as soon as possible across all the civil and family courts in England and Wales. They added that these common information systems should extend to criminal business. They also described the need for our administrative tribunals to benefit from this common approach. In a very important part of their report they described the four interlinked systems which lay at the heart of their proposals: the electronic case record; the electronic case management system; the electronic diary; and the electronic file.
In a speech I made at the Foundation for Science and Technology towards the end of 2001 I described the central message of this report in these terms:
“Court administrators know all about the back-office problems. We judges know all about what I will call the ‘front-office’ problems. Under court modernisation, the front office and the back office will be jointly networked for the first time. If at the end of a hearing, the judge wants to fix the next appointment for a hearing, he will be able to call up the diary system from his computer on the bench and fix a new date there and then. In Appendix 5 of their report the five judges gave three worked up examples of how this provision would enable them to provide a much better service for litigants.
In one of these examples, a five-day case settles unexpectedly a week before the hearing date. The electronic diary is then used to interrogate the system to see if there are any over-bookings at that court or at neighbouring courts to fill the judge’s list. Three possibilities are identified. E-mail messages are sent to the solicitors in each case to ask whether the cases are still effective. When told that they are, the system spots that there is a disabled litigant in one of them, and earmarks a ground floor courtroom for that case. The system can also check that the new cases will be assigned to a judge who is appropriately qualified to hear them. The court diary arrangements are updated to show the new listing arrangements. The parties’ solicitors are then informed by e-mail of the new arrangements.
At present every step in that process is done slowly and inefficiently by telephone and a card index system. In a modernised court every step could be taken automatically. Alternatively, some of these steps could be made subject to judicial decision, or the decision of a court administrator of appropriate seniority. If a more senior judge has to be involved, his authority can be sought and given electronically from the faraway court at which he is sitting. All of this is light years away from the present ways of doing these things.”
In the meantime, and in part driven by the logic emerging from the judges’ work, the different strands of the Court Service’s modernisation plans were woven together into what became known as the Courts and Tribunals Modernisation Programme. Lord Woolf, now Lord Chief Justice, gave me the formal title of “Judge in charge of Modernisation”, with the authority to speak for the judges of England and Wales, and the new Programme Board met for the first time in the early summer of 2001. It had been allotted about 160 million pounds for the 2001-2004 period. One of its early tasks was to prepare the case to the Treasury for the funding needed to drive the modernisation programme forward between 2003 and 2006.
Judicial involvement in all this planning was achieved by the creation of five new judicial advisory groups, each dedicated to a different aspect of the programme: training and knowledge management, hardware and infrastructure, in-court technology and so on. Two large 24-hour judicial conferences (the second led by Lord Woolf and the other Heads of Division) were arranged to achieve a measure of judicial “buy-in” to the programme, and in February 2002 the thirty (or so) members of the new advisory groups met for an all-day seminar, in order to understand how the work of their group fitted into the wider picture.
I have described another part of the programme in these words:
“An important part of the new strategy is concerned with handling much more of this undefended back-office work electronically. Many more actions will start electronically, and will be dealt with electronically unless and until resistance is shown. At that stage the electronic file will be sent electronically to a place where staff and judges will also handle it electronically.
We are also now starting to test what is called e-filing in pilot schemes. There has been a lot of American experience with this. The essence of it is that anyone will be able to issue a money claim from his home computer or his business computer. He will pay the fee and send the claim off electronically to the Court Service at any time of the day or night. The Court Service will then authenticate and issue the claim, so that many more people and businesses will have the benefits now only available to major creditors. This will take quite a load off court staff.”
A few pilot schemes involving court technology were by now under way. The PREMA project, an early experiment in electronic communications with a court, was launched at Preston in the spring of 2001. The only court-based IT equipment at that large centre consisted of the networked dumb terminals used for CASEMAN and CREST, and the judges’ standalone laptops. The MCC programme provided funding for four networked PCs. Solicitors could now correspond with the court by e-mail for a variety of simple applications. In the event the service was greatly under-used. One local firm of solicitors were enthusiastic devotees of PREMA, and within eighteen months three other users (including the Blackpool office of the Official Receiver) had each used the service more than ten times. In general, however, there was the same cultural reluctance to embark on the unknown as has characterised English lawyers’ approach to most technological innovations over the last 15 years.
It may well be that this service will become more popular once it can be used for a wider range of solicitors’ work. It is surprising, however, that the value of arrangements whereby solicitors can obtain a consent order releasing their clients’ funds in less than two days as opposed to 20 (under the current manual arrangements) has not become more widely appreciated.
In September 2001 a new information system called XHIBIT was launched at the Chelmsford Crown Court. This had been developed as a result of discussions between the different criminal justice agencies, all of whom have an interest in knowing the progress a Crown Court trial is making. Witnesses need to get to court at the right time, police officers who have to give evidence should not be taken away from their other duties for too long, those who are concerned in the next case in the list have an interest in knowing whether the current trial is running to time, and so on.
XHIBIT is a web-based system which depends on someone keeping a log of events in court. These events are then transmitted instantaneously to the XHIBIT screen. By way of example they may include: prosecution opening speech; prosecution lay evidence; police evidence; defence evidence; closing submissions by the prosecution; judge’s summing up; jury in retirement; verdict; sentencing. The information on XHIBIT is accessible on monitor screens in the public parts of the court building, and also on the website of the Crown Court. Text messages can also be sent to people who need to be warned when to attend court. In due course XHIBIT was extended to two other Crown Courts in the Essex area. In March 2003 it is likely to be installed at the Snaresbrook Crown Court centre in north-east London, where a full IT infrastructure has now been installed, and where digital audio recording is currently being tested.
For some time now, evidence has been presented electronically in very long criminal trials. Anyone visiting the trial of Kevin and Ian Maxwell, for instance, would have seen two monitor screens. The first showed the raw Livenote transcript scrolling up a few seconds after the witness’s words were uttered. The other generally showed the witness’s face (because it was a very large court), but when use was made of the facility to exhibit a document on the screen, everyone in court could read it, too. Zoom facilities enable the operator to highlight those features which a party wants the jury to see, such as a signature, or the manuscript writing on a document. Juries like this kind of presentation. Its use also saves an immense amount of court time. If any of the parties want the document printed and put in the jury bundle, this can easily be done.
In American courts it is now becoming very common to demonstrate the effect of evidence by the use of PowerPoint or other similar technology. Those who use it know how much more quickly the eye (as opposed to the ear) absorbs complicated information.
The possibilities of EPE are now being addressed in a systematic way. Nine Crown Courts were originally earmarked for trials of this equipment, and although some of the cases for which its use was planned ended quickly with pleas of guilty, an increasing volume of practical know-how has already been built up.
Under the MCC programme four civil court centres were equipped with video-conferencing facilities, and a few other courts paid for it out of their own resources. Experience is already demonstrating its value for a number of different types of case. For trials it is being used where a witness is abroad, or is seriously disabled, or is a long way away from the court and it would be disproportionately expensive for him/her to travel there. For pre-trial hearings it is being used where one of the party’s lawyers is a long way from the court where the hearing is being conducted, or where an urgent order has to be sought from a judge at a distant court.
In criminal courts video-conferencing is being increasingly used for links with prisons. A successful pilot experiment between four courts (including a Crown Court) and their local prisons led to this facility being extended to magistrates’ courts throughout the country in 2002. This technology has also been used for some time for the evidence of child witnesses, and for foreign witnesses in criminal fraud cases. In July 2002 its use was extended when legislation was implemented whereby vulnerable or intimidated witnesses were permitted to give evidence in a criminal court by a video link.
Experience has shown, however, that unless the equipment is very good, the evidence of a witness over a video link for the purposes of a trial does not have the same immediacy as when the witness gives evidence in court. Some criminal judges believe that juries have acquitted in cases where they might well have convicted if they had actually seen the complainant child witness give evidence from the witness-box. In September 2002 the relevant judicial advisory group published a paper which demonstrated the value of this technology, but advocated the adoption of a more strategic approach for developing its use in our courts, instead of the piecemeal arrangements which have dominated the scene so far.
An e-filing project called MCOL (“Money Claims On-Line”) was launched in February 2002 for the purpose I described in my Foundation speech. An individual creditor could now obtain a default judgment and apply for a warrant of execution on-line through this service. Claims of up to a hundred thousand pounds could be issued against up to two defendants, and within six months 75 claims were being processed through this service every day. Plans are now in train to make it easier for solicitors to use the service, with monthly invoicing rather than insistence on the use of a credit card for each transaction, and to enable defendants to respond to the claims on-line.
At Walsall, the Court Service is developing a pilot business centre close to the county court. In September 2002 all that was visible there were large stretches of unoccupied carpet and about thirty networked workstations, fitted with basic CASEMAN, FAMILYMAN and Microsoft Office systems in a Windows environment. The purpose of this project is to test the concept of a business centre, separated in distance from a court hearing centre, which would deal with all the correspondence and accounting work of the court, and relieve the staff at the hearing centre from all their responsibilities other than those involved in assisting judges to hear defended cases. In due course this pilot centre will also take over the business functions of some neighbouring county courts as well.
An important part of these plans involves the creation of an electronic diary, accessible to judges and court staff alike (save that the private parts of the judges’ diary will be barred from general access). In this early experiment Microsoft Outlook will be used to provide this functionality in a fairly basic way. For how many more years judges and court staff will have to wait for the vital help described by the judges in their August 2001 report is at present unclear.
In May 2002 I delivered a public lecture on our modernisation plans. During the course of it I said:
“Far and away our greatest need is to introduce software systems which will enable court staff and judges to manage court business better in the civil and family courts. Today the courts are not networked. CREST and CASEMAN link dumb computer terminals with a court database, but we are miles behind most government departments and modern private sector businesses. Our aim is to lop off the business sections of the civil courts, and to enable those courts to concentrate on their real purpose: hearing defended cases. The back-office business will be diverted to new business centres, linked to the courts by IT. The first of these business centres will start on a pilot basis in the Midlands this autumn.
In the autumn we also hope that testing will have begun for the new software systems we will use in future in all our courts. At present we rely on paper filing systems. It is not always easy to retain and motivate staff when files go missing, or get into a muddle quite so often. Nowadays court users have every reason to complain about some of the delays and inefficiencies that occur. Once modern software is in place, court staff and judges with case-management responsibilities will be able to handle cases far more efficiently before trial than is possible today. A modern electronic diary and listing system will enable trial dates to be fixed more quickly and judges’ time to be more effectively used.”
On St Swithun’s Day 2002 the Government published its spending plans up to April 2006. Very significant sums of money were earmarked for IT in the criminal justice system. Within the next three years IT infrastructure should be installed in all our Crown Court centres. Attention has also been paid to the need for information to flow more easily between the different agencies in the criminal justice system, a need first trumpeted by ITAC in 1986. But it is not at all clear to me how the courts will be able to accommodate this information if their much-needed “enabling applications” cannot be developed for lack of finance.
So far as our civil and family courts are concerned, after all this careful planning we seem to have struck that long snake close to the top of the Snakes and Ladders Board. We have been sent back a long way, and the morale of the judges and of the staff who serve them so devotedly is bound to be badly affected. On the evening of the spending review announcement the Treasury published a description of the objectives of the Lord Chancellor’s Department. It did not even mention the modernisation of our civil and family courts. How much progress can be made from the general funds allotted to the department will become clearer later in 2002. But most of the relief we hoped that technology would bring to our very hard-pressed civil and family court judges and their staff will not be available. Whether “jam tomorrow” will ever turn into “jam today” remains to be seen.
In other words, within two months it had become clear that the central hopes I had expressed in my May lecture had been dashed. As things stand, for the next four years none of our courts will have the benefit of the technology described in the judges’ report, other than in a fairly rudimentary form. Those who develop our pilot business centre will probably be able to go no further than doing their best to adapt a common form Microsoft Office product instead of installing the much more sophisticated electronic systems the judges said were necessary. It is common knowledge that the old back-office “systems”, CREST (whose initial design goes back to 1986) and CASEMAN, simply do not possess the functionality to serve the linked diary and electronic case file, case management and case record systems that today’s courts so desperately need, although I understand that efforts are being made to provide some kind of link..
It would be wrong, however, to despair too much. In this chapter I have described the huge strides forward that our relatively conservative judicial and administrative cultures have made since Sir Brian Neill’s voice in the wilderness first cried of the need for clear, joined-up thinking about the value of applied technology in the court system. Those who were then fast asleep have now become half ready to meet these challenges. In July 2002 other social needs were adjudged by our rulers to have a higher priority than the need to provide a system of justice for the citizen which is not totally overwhelmed by mountains of paper. Perhaps in my lifetime, if not now in my judicial lifetime, a brighter future will really arrive.
The essay was completed on 30 September 2002.
Addendum (30 November 2002)
The editors have allowed me to write a short addendum to this essay. The plans to install an IT infrastructure into all our Crown Courts are now rolling forward, and valiant efforts are being made to assemble sufficient resources to carry out a similar exercise in all those civil courts that have a long term future. On the bright side, the Court Service is doing its best to maintain its long-term goals, although we will now have to muddle along in all our courts for a few more years with case-handling software which is not up to the job. More depressingly, there are indications that a scattergun approach is now being adopted to meet the case-handling needs of our criminal courts, instead of the integrated approach that was central to our planning. There is still a very long way to go, but the future is not all dark.
 The Hon Christopher Bathurst QC was a director of Portsmouth & Sunderland Newspapers.