The Bach Report: (3) The use of technology

computer

This is the first of a series of blogs which will start with relevant extracts from the Commission’s Final Report. These will be followed by  the more detailed treatment I gave to the topic  in one of the chapters in Appendix Five to the Report

I wrote the papers in this Appendix because I was keen not to lose the opportunity to provide in-depth treatment of important issues for which there would clearly be no room in the report itself.

Extracts from the Final Report

The use of technology

The smooth operation of the system: There is a need to redesign the whole justice system to reduce complexity and cost so that effective remedy is as cheap and efficient as possible for all concerned. As part of this, the government must invest in the modernisation and digitisation of legal services. A flurry of recent reports have suggested innovation in this area, starting with the Civil Justice Council report on Online Dispute Resolution (ODR), and culminating in Lord Justice Briggs’ final Civil Courts Structure Review Report and the UK government White Paper, Transforming Our Justice System.[1]

But modernisation must be focused on ensuring fair access to justice for all. Technology has the capacity to enhance, empower and automate, but it also has the potential to exclude vulnerable members of society. We therefore welcome Lord Justice Briggs’ insistence on providing full and effective support to those unable themselves to access digital content. Further technological innovation must reduce the considerable bureaucratic burden placed on the public and on providers.

Universally accessible advice

Most people who experience a legal problem are unlikely to recognise it as such. Even those that do may not know where to turn to: advice centres, law centres, legal aid practices, helplines and online portals are no use where people don’t know to visit them. Advice should therefore be easily accessible, clearly signposted, and situated in places where those most in need are likely to find it. It should also always be universally available; no-one should have to face a financial assessment in order to access basic advice about their legal rights, or to discover whether or not the problem they face is legal in character.

Online and on the phone

There are a range of charities and organisations who provide free advice on legal matters. These include well known websites like Citizens Advice and Advice Now, and more specialised websites and helplines from organisations like Age UK, Shelter, and Liberty. But many people, upon encountering a legal problem, would not know where to look. Lisa Wintersteiger [Chief Executive of Law for Life] told the commission:

“[People] are also hindered from using digital help effectively because they struggle to frame their problems in a way that enables them to search for what they need. If they do find information, they are often unable to assess its quality and veracity properly. In addition, they cannot always correctly identify whether the information they have accessed applies to the relevant jurisdiction (for example, a user may be applying US law unknowingly to a UK legal problem).”

While organisations like Advice Now have made valiant efforts to bring together various different advice services, the commission has concluded that there is a need for a centrally recognised and recognisable online brand, which people know to visit when they have a problem. Such a centralised portal would also mitigate against the risks of institutional memory loss, where rapid staff turnover, organisational or technology change leads to valuable information disappearing or becoming out-dated.

The commission recommends the introduction and maintenance of a centrally branded and easily navigable portal for online information and advice. This portal should signpost to different online services, hosted by different organisations such as Citizens Advice and Advice Now, as appropriate. This site should be independent of government and subject to stringent quality control, and it could be provided by an existing provider, or providers, which responds to a government tender. The government should share information about this new central portal in communications about other matters such as health and education.

We should remain cautious about depending on online information alone. Research from earlier in the decade found that only 25 per cent of people use the internet to solve legal problems.[2] While there is every reason to believe that figure has risen and will rise still further, it will never compensate entirely for face-to-face advice.[3] Lindsey Poole, director of Advice Services Alliance, described online advice as like the fourth lane of a motorway; it will be widely used and does a very good job for those who can access it, but in and of itself it won’t help those with the highest need. It should be used as a mechanism for freeing up resources for more personally tailored help for those who need it, not a means of reducing what is often the most valuable aspect of advice – human contact.[4] This accords with the strategy adopted by Citizens Advice. 22 million people viewed their website last year – a significant increase on earlier years – while the numbers using their face-to-face advice have remained pretty constant.[5]

Appendix 5 to the Report

Chapter 18: The use of applied technology

 

The need for a multi-channel strategy

The evidence before the commission showed, on the one hand, the vast strides that have been made in the last two years or so in the use of applied technology in the legal and judicial systems, and on the other hand a widespread concern that policy-makers must pay great attention to the needs of those who currently have no access to the Internet and to the large number of people who, while having access to the Internet, do not have nearly enough confidence to use it on their own without any recourse to face-to-face advice (or possibly, help by telephone, Skype or video-link) from another human being. A research study of 24 such people, conducted on behalf of Shelter during 2015, gives a vivid picture of people who can manage for a bit of the way on their own, but who then need help from a qualified adviser.

Shelter wrote:

Research undertaken for Shelter, by TNS BMRB,[6] helped us better understand the different roles played by face-to-face, telephone and online advice services play in getting people the help they need. We found that individual needs are complex and the context of people’s lives is critical for understanding the role that digital can play in housing advice and support and, just as importantly, where it can’t.

Three factors are key in determining what help people need – the severity or urgency of the housing problem; their personal, emotional and practical circumstances, such as mental or physical health problems, relationship difficulties, young children; and whether they have the skills, knowledge and confidence to tackle the problem they are facing.

A multi-channel strategy is needed to address everyone’s needs. The research clearly showed that person-to-person services are vital for people with more severe and urgent problems. However, developing digital services can help people to resolve their housing problems before they reach crisis point and help people build their confidence around housing rights and responsibilities, increasing their capacity to resolve issues themselves.

 Courts and tribunals

So far as the courts and tribunals are concerned,the Annex to this paper contains an extract from the Lord Chief Justice’s Annual Report, published in July 2017, which shows the great progress that is now being made in our courts and tribunals.

Digitisation has now reached the stage at which all pleadings and other documents needed for litigation by professional court users in the Rolls Building have to be filed electronically through the CE-File Process.[7]

In the Crown Court documents have to be filed electronically through the Crown Court Digital Case System (DCS), which is working well. A “Better Case Management” Newsletter in June 2016 described what had by then been achieved:[8]

“The national roll out of the DCS is now complete.

  • Wi-Fi has been installed in every Crown Court, thereby enabling digital access to the documents in the case by the judge, the court clerk and other members of HMCTS staff, the defence, the prosecution and probation.
  • It is now possible to upload relevant information onto the DCS. All those authorised to access the relevant electronic file can now read and annotate the papers privately, and any of the materials can be presented in court directly from a laptop or other mobile device.
  • Navigation of the bundle is simplified and bookmarks and notes can be created which allow users to highlight any part of the evidence; prepare submissions, speeches, questioning and the summing up; access the documents via embedded links; and control the level of privacy to be applied to notes or annotations.

Almost inevitably there have been some early difficulties that have needed to be resolved, but the overall experience of this new system appears to have been, thus far, very positive.

Judges, court staff and practitioners are, from the reports we have received, greatly appreciating the benefits of the DCS, the most obvious of which are:

  • The dramatic reduction in the number of paper documents now used in cases, thereby avoiding the vast and unnecessary quantities of printing and photocopying, and ending the frequent searches for lost files or documents and their expensive transportation and storage;
  • The standardisation of the format of the case file and the common storage site in ‘the cloud’ ensures everyone involved in the case has access to the same documents (save for private material, as dealt with below) which can be accessed instantly; the date of service for each document or piece of evidence is immediately apparent; and there is a justified high level of confidence that the papers in the case are securely stored;
  • The administration of cases has been made far more efficient;
  • The papers for the judiciary no longer need to be prepared in the old, time-consuming way;
  • The DCS, together with BCM,[9] has enabled greater engagement between the parties, thereby reducing the number and the length of hearings, together with applications for adjournments;
  • There is much improved preparation in advance of the PTPH,[10] especially following the introduction of the editable ONLINE PTPH form; and
  • A reduction in correspondence, complaints and enquiries.’

The new online court

In the general civil courts Lord Justice Briggs’ concept of an online court this autumn will see the first pilot project of what will be a series of carefully controlled experiments which will test different features of his vision of an online court. It will be limited at first to civil claims for up to £10,000, with up to 2,000 such cases going through the first stage of the system, by invitation only, during the project’s pilot 6-month phase. The initial project will last for just over two years. A set of rules has been approved for this experiment, for which use of the digital system will be compulsory. But it will be “assisted digital” in the sense that “face to face” help will be provided for those who cannot cope on their own.

The Master of the Rolls has described this first stage in these terms:[11]

“[It] will cover the pre-issue stage of litigation. In some ways this will cover the same ground as the Pre-Action Protocols. It will, however, go wider than that. It will assist individuals to find the right sources of legal advice and help in order to enable them to consider whether they have a viable legal dispute, or whether a more appropriate means of complaint or redress is available, such as a relevant Ombudsman scheme. Assuming there is a viable dispute it will, and this will be carried out via a broadly automated online process, enable claimants to identify the nature of their claim and submit relevant documents, such as the claim form, online. It will equally help them to particularise their claims. This will be done through the use of standardised online processes.

The first stage of the process will therefore see the Online Solutions Court expand our ability to secure access to justice in two ways. First, it will help individuals identify the nature of their problem. The very essence of securing access is to secure an understanding of the legal framework. Such understanding will enable those individuals who have not yet reached the stage where a legal action has arisen to take steps to avoid that point being reached. It will secure access to preventive justice. Secondly, it will help other individuals to identify the alternatives to litigation. If the alternative identified is an Ombudsman scheme, it will help enhance two forms of justice: justice for the individual in the form of resolution under the scheme; and justice for others through the Ombudsman’s ability to promote systemic improvement – so that other individuals in the future are not put into the same position. In that way, this also is a form of preventive justice, made accessible to all through the changes it makes. I think that no one can suggest that it is not a core function of government to promote access to justice in this way. “

The next initiative will be an experiment with case-management software in an immigration tribunal. HMCTS is currently working with partners from Microsoft to build a prototype for a fully virtual hearing, which will be tested in October 2017 in the Immigration and Asylum Chamber with judges, HMCTS staff, the legal profession and Home Office presenting Officers.

On 14 September 2017, it was announced[12] that a new project (known as the Public Law Reform Project) was due to start in October 2017 whose purpose was to digitise the “evidence management” component of public law family litigation, building on the results of earlier pilot projects. It is hoped that following a pilot experiment early in 2018 the first release of this solution will be available next spring. It was also announced that the new Divorce Online project was progressing well, with a new digital application for personal applicants currently being piloted.

Stages 2 and 3 of the Briggs concept – the involvement of a court-based case-worker[13] and the ultimate disposal of cases not disposed of earlier (adjudication by a judge, whether in a traditional courtroom, by video-link, by telephone or on the papers) are still very much in the future.

 The absence of a strategic approach to the provision of information about legal matters

Outside the formal court system, where judges, court administrators and technical staff are working closely together as part of the new £700 million Government initiative, what is lacking at the moment is any strategy to ensure that members of the public and their advisers will know where to access relevant information of a consistent high quality and that any gaps in provision can be filled in a sensibly co-ordinated way. There are a lot of interesting initiatives being taken quite independently of one another, and different players in the market place are developing solutions in the absence of any over-arching strategy.

Professor Susskind (for many years the IT adviser to the Lord Chief Justice) told the commission in March 2016 that the kinds of system he had in mind were not rocket science. He drew our attention to the consumer website www.resolver.co.uk, which provides an intuitive, easy to use, jargon-free way to complain about the problems consumers have with their suppliers. He said that future solutions should be designed by non-lawyers, since it will be non-lawyers who will be making use of them. The Ugandan barefoot lawyering site at https://barefootlaw.org/ is accessible by tablet, and something like this should be developed in this country. Lisa Wintersteiger, of Law for Life, spoke to much the same effect.

 The online court hackathon

In July 2017 the first 24-hour Online Courts Hackathon took place. An explanatory memorandum stated:

“While the government is leading the transformation (and is investing around £1 billion in modernising the courts), it is recognised that the design of the online courts would benefit from the input of the wider communities of lawyers, court users, law students, and technologists.

The idea of the Hackathon is to bring these communities together over a 24-hour period and in a friendly and yet competitive spirit, to invite teams to come up with designs, solutions, systems, and technologies for various parts of the online court. Participants will be invited to design various tools to support online courts – for example, tools to help litigants structure their legal arguments, organise their documents, negotiate settlements without advisers, improve access to legal advice as well as systems that will promote open justice and even machine learning solutions that will help analyse all the data generated by the online courts. Prizes will be awarded for the best ideas. Pizzas and coffee will be consumed in great quantities while the teams work through the night.”

The fact that this weekend event was organised by Legal Geek and the Society for Computers & Law in conjunction with the Judiciary and HM Courts & Tribunals Service (HMCTS) is a testament to the way in which collaborative ways of working are now being developed in an unprecedented way. Two newish High Court judges formed part of the panel of five who picked the eventual winners, and the Lord Chief Justice himself presented the awards on the Sunday morning, in the presence of the Head of HMCTS. The overall winner was a joint item from Wavelength Law and The Law Society which produced a concept called COLIN (the Courts On Line help agent), which went from a diagnosis of a chest complaint at a doctor’s surgery through each stage of a possible claim against a landlord, using “pathfinder” technology and voice interaction:

“What can COLIN do?

Colin can guide the user through the complexities of legal issues as if talking to a knowledgeable fiend, capture the whole story as relevant to the user, distil relevant parts for required steps in the process, and bundle the entire history in chronological order ready for professional input or an online court.”[14]

Simple diagnostic tools and dropdown menus

Most legal aid expenditure, Professor Susskind said, is generated within 18 main problem areas. The strategic planning he favours will demand the development of simple diagnostic tools and dropdown menus to explain things simply to those who have encountered a problem in one of these areas.

Professor Roger Smith, for his part, told the commission about the Justice Education Society’s public legal education website in British Columbia[15], and how a court in California had acquired from them a program called “Families Change”.[16] This helps people through a divorce and describes, among other things, the problems that affect children after their parents separate. It gives a representation of a village where a visitor walks about and obtain practical information about different issues concerned with relationship breakdown in different parts of the village.

The passage on parental responsibilities, for instance, reads:

 The separation or divorce can be so overwhelming for some parents – the loss of a spousal relationship, money worries, moving households, and other details – that they lose sight of their obligations to their children. Being aware of your parental responsibilities at this time will help you handle many decisions involving your children.

 Your parental responsibilities are to:

  • Take care of your children and keep them safe, even though one of you lives apart from the family.

  • Make sure that the children spend time with each parent, as well as other people who are important to them.

  • Listen to what your children have to say, even if you can’t always do what they want you to.

  • Answer the children’s questions about money, where they are going to live, and so on, when they ask.

  • Talk to the other parent with respect in front of the children.

  • Talk to the other parent about the things that involve the children.

It is easy to see how useful it will be for English family lawyers to refer their clients to a website like this, if they are up to using the web, thus limiting the cost to the state of “face to face” advice for the first hour or so. Comparable advice is available on the site for both children and teenagers.

In this country there has been an enormous increase in the number of people accessing the two leading sites that contain generalist advice of a legal nature. In 2015-16 Citizens Advice received 36 million visits (55 million page views”) to their website at https://www.citizensadvice.org.uk/ and the website of AdviceNow at www.advicenow.org.uk/ , which is now administered by Law for Life, was accessed by 931,000 users during the same period. Its curated information service brings together 1,600 pieces of public legal information from over 250 UK websites.

For “Benefit appeals”, for instance, AdviceNow has prepared three down-loadable guides on different types of appeal, together with a link to an admirable “PIP Mandatory Reconsideration Request Letter Tool” which it developed recently with the help of grant-funding and which attracted 70,000 visitors quite quickly. This part of the site also includes, with links, a list of “Top Picks – A quality controlled selection of all the best legal information from a wide range of providers hand picked from the best websites by Advicenow”. The ten links include a number to different parts of the Citizens Advice site, and other links to sites run by Disability Rights UK, Shelter and a national charity called Turn2Us.

 More recently a charity called Lasa[17] has been producing sites containing practical information about the benefits appeal system which also includes references to relevant judgments of the Upper Tribunal. It has received grant aid form the Law Society Charity and the Legal Education Foundation for the pioneering work it has been doing. Their site at www.pipinfo.net, for instance, states:

“Choose from the options above for details of regulations and case law relating to personal independence payment. You can search by activity, issue or health condition to find out more about the legal framework and how the Upper Tribunal has interpreted the law.

We hope that pipinfo will help advisers in assisting people to make a new claim for personal independence payment, and in challenging decisions to refuse, or award a lower rate of, the benefit.

Like pipinfo? See also our work capability assessment tool wcainfo.net, part of our family of web tools[18].”

Another strand in any future strategy must be a greater willingness of advice organisations to collaborate – perhaps by joint tenders – when they have common aims but different skills. Some of the papers in this Appendix[19] and in Appendix 4[20] show the different small-scale initiatives now taking place, particularly when local offices of Citizens Advice are working harmoniously in collaboration with the local law centre, but a lot more needs to be done to avoid the dilemma faced by too many people today who go from adviser to adviser before they discover the one that is able to provider for their particular needs.

On the one hand an initiative in Coventry shows what can be done along these lines[21], and on the other hand Lindsey Poole of the Advice Services Alliance counselled against the development of enforced collaboration between agencies that do not know how to work harmoniously together. There is a very important role for applied technology to play in assembling the essential features for the client’s problem and directing them to the appropriate advice agency for further help (whether face-to-face, online, or by telephone or video etc.

This short paper inevitably only provides a snapshot of what is going on in a very rapidly moving scene. Annex 7[22] of the first Low Commission report in 2014 provided a useful, but not comprehensive, list of websites and telephone lines that were providing information and advice about social welfare problems, and the list would be much longer and fuller today. This only serves to accentuate the problems facing the member of the public searching for the information and advice they really need.

 

 

ANNEX

EXTRACT FROM THE LORD CHIEF JUSTICE’S ANNUAL REPORT, 2017

 Digitisation and technology

Crime

The Crown Courts now operate the Digital Case System for all CPS prosecutions and rapid progress is being made on extending the system to all prosecutions. This has meant that the management of cases takes place without the need for paper; pre-trial applications and directions are made online. Many trials proceed without paper; there has been rapid progress in providing ancillary digital facilities such as Clickshare which enables advocates to display documents and photographs from their own computers.

Digitisation has not yet reached the Court of Appeal (Criminal Division); the huge progress that has been made in the Crown Court can be seen in the contrast with the Court of Appeal when that court sits outside the Royal Courts of Justice.

Digital Mark Up[23] has been introduced and, after rigorous testing, rolled out across the Magistrates’ Courts. Automated Track Case Management for Transport for London has also been introduced to enable the Single Justice Procedure to operate from receipt of a case through to a decision; it also provides data for subsequent fine and fee collection and enforcement.

Progress is being made with the development of the Common Platform Programme which will link all the paperwork in each stage of a criminal case from arrest by the police and consideration by the CPS to the involvement of the courts and the defence.

 Civil, Family and Tribunals

The major decision made during the year was that the same single process would operate across all civil, family and tribunals cases, supported by a single set of new rules designed specifically for the process.

Projects are now building component parts which, when put together, will form the same single process.

These include:

  • Social Security and Child Support Tribunal – parties will be able to resolve their disputes online using a digital end to end service where parties and judges will be able to view evidence online through a Continuous Online Hearing. A digital case file will allow users to track and monitor their case through “Track My Appeal” and access reliable signposting and guidance.   Parties will be able to see the grounds of a dispute and further evidence through digital evidence sharing.
  • Apply for a Divorce – applicants will be able to process an undefended divorce online from their home, with additional features added in time, including payments and uploading documents.
  • Apply for Probate – an online service for people applying for grants of probate.
  • Tax Online Project – this project enables appeals to be lodged with the First-Tier Tax Tribunal online.
  • Civil Money Claims – this online service will enable parties to resolve money claims online using a largely automated system for claims under £25k and streamlined digital pathway for all other civil money claims.

 

 

 

[1] Civil Justice Council. (2015) Online Dispute Resolution for Low Value Civil Claims. Accessed September 2017: https://www.judiciary.gov.uk/wp-content/uploads/2015/02/Online-Dispute-Resolution-Final-Web-Version.pdf

Lord Justice Briggs. (2016) Civil Courts Structure Review: Final Report. Accessed September 2017: https://www.judiciary.gov.uk/wp-content/uploads/2016/07/civil-courts-structure-review-final-report-jul-16-final-1.pdf

Ministry of Justice. (2016) Transforming Our Justice System: By the Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals. Accessed September 2017: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/553261/joint-vision-statement.pdf

[2] See the written statement of Law for Life in appendix 4 at p. 73.

[3] Shelter referred the commission to a valuable research report in 2015 which identified the different roles played by face-to-face, telephone and online services in getting people the help they need. Accessed September 2017: https://england.shelter.org.uk/__data/assets/pdf_file/0005/1053662/2015_16_01_TNS_BMRB_The_future_role_of_digital_housing_advice_and_support_Research_Report.pdf

[4] See the evidence of the Advice Services Alliance in appendix 4 at p. 86.

[5] See appendix 5, chapter 16.

[6]https://england.shelter.org.uk/professional_resources/policy_and_research/policy_library/policy_library_folder/report_down_the_line

[7] https://efile.cefile-app.com/login

[8] By that time there were over 43,000 “cases” on the DCS, with about 5.8 million pages filed on the system. There were over 16,000 registered users, most of whom were external prosecutors and defence practitioners.

[9] Better Case Management.

[10] Plea and Trial Preparation Hearing.

[11] Sir Terence Etherton, in his Lord Slynn of Hadley Memorial Lecture, June 2017. Accessed September 2017: https://www.judiciary.gov.uk/announcements/the-lord-slynn-memorial-lecture-by-sir-terence-etherton-master-of-the-rolls-the-civil-court-of-the-future/

[12] HMCTS (2017). Brief: E-working in the family jurisdiction. Accessed September 2017: https://www.judiciary.gov.uk/wp-content/uploads/2017/09/e-working-in-the-family-jurisdiction-brief-20170914.pdf

[13] This will be a court administrator exercising judicial functions under the supervision of the judiciary, quite independently of government, who will promote the best resolution method for each case – mediation, online Alternative Dispute Resolution, early neutral evaluation, probably carried out by a district judge, or proceeding direct to a full trial.

[14] See C & L, the Journal of the Society for Computers & Law, August/September 2017.

[15] Accessed September 2017: http://www.justiceeducation.ca/

[16] Accessed September 2017: http://www.familieschange.ca.gov/

[17] Its website states: “Established in 1984, we’re dedicated to supporting organisations in thei ruse of technology and the delivery of social welfare law advice to the disadvantaged communities they serve.

[18] Accessed September 2017: http://www.lasa.org.uk/webtools

[19] See Chapters 15 and 16.

[20] See the evidence of the Advice Services Alliance. “Referral Systems– some partnerships have successfully developed referral systems based on inter organisations protocols and possibly including data sharing through IT or web based systems. Key feature of success is the relationship between the organisations, the element of trust that will pick up referral and give a good quality service. Some referrals work well for the organisations but deliver a poor client experience. The human relationships and human agency are the key factors.”

[21] “At Coventry, they have a protocol to identify the point at which people should be signposted towards the law centre. They have developed software which can be used by any advice centre in Coventry. The client’s case is added, and through a triage system all the details are fed into the system. The local authority has funded someone to monitor the service. He/she sees that a case will be taken on by a lawyer within 24 hours, and the lawyer who receives the reference then has to account for what has happened. Other agencies can then see what has happened.                                                                                          They are using a similar model in Avon and Bristol.”

[22] Accessed September 2017: https://www.lowcommission.org.uk/dyn/1401712385512/LCR_Annex07.pdf

[23] An in-court programme which enables Legal Advisers and Court Associates to record the results of cases.

 

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