Report by TLEF research director Dr Natalie Byrom sets out a 29-point plan for tackling ‘digital exclusion’, and ensuring the government’s £1bn court reform programme delivers access to justice for all court users.

Recommendations follow Dr Byrom’s three-month secondment to HMCTS as an expert adviser on open data www.gov.uk/government/news/hmcts-announces-expert-advisor-on-open-data-and-academic-engagement

The grant-giving charity The Legal Education Foundation has today published a report, setting out a blueprint for evaluating the impact of the government’s online courts programme, and for ensuring the needs of all court users are understood and fully met in the move to digital justice.

The report came about after TLEF’s director of research and learning, Dr Natalie Byrom, was invited to act as an independent adviser to HM Courts and Tribunals Service’s court reform programme by its chief executive Susan Acland-Hood.

“The foundation believes it is vital that people are able to understand and use the law, which means decisions about providing access to justice must be based on clear and robust evidence. My colleague Dr Natalie Byrom has developed unique expertise in this field, through her work and extensive research. We were delighted that HMCTS invited Natalie to act as an independent expert to the courts reform programme, which shows how committed chief executive Susan Acland-Hood and her team are to delivering justice to all court users.”

Matthew Smerdon, TLEF chief executive

During her three-month secondment at HMCTS earlier this year, Dr Byrom interviewed 60 experts and stakeholders in the UK and internationally, including senior judges, government staff, academic researchers, and data and privacy specialists. If adopted in full, the recommendations in her resulting report, Digital Justice: HMCTS data strategy and delivering access to justice would make this jurisdiction a world leader in delivering digital justice.

“The move to online courts is an incredible opportunity to create a justice system that works well for everyone, whether they are an individual in crisis who has never been to court before, or a large organisation which regularly brings claims. We need to ensure that digital processes are designed and monitored in line with recognised access to justice principles. We also need to be able to measure how different groups fare under the online processes, compared with paper-based, or face-to-face systems. The detailed recommendations in my ‘Digital Justice’ report are intended to be a blueprint for putting access to justice at the heart of the HMCTS reform programme.”

Dr Byrom

Dr Byrom’s report sets out 29 detailed recommendations for how HMCTS’s digital processes should be designed or adapted to ensure they capture the data necessary for government and others to evaluate if online courts are disadvantaging some types of users.

“In order to honour its commitment to monitor the impact of digital courts on vulnerable people, government must collect data about those using the courts. To avoid exclusion, or to be able to correct procedures if some groups are being excluded, my recommendation is that court users are asked a small number of questions about protected characteristics – for example, in relation to age, mental or physical disability, gender, and other factors associated with vulnerability. These questions would be optional and reflect the attributes currently used by judges to determine when an individual may be vulnerable. This information should be collected as a matter of routine.”

Dr Byrom

The report also stresses the vital need for clear and robust protocols to ensure court users’ privacy is maintained and that data collected for monitoring and evaluation is protected from misuse.

“Capturing data is vital for ensuring the system is working fairly. However, there must be strict, clear, and ethical controls over how the information is used and who has access to it. People’s privacy must be respected.”

Dr Byrom

About Dr Byrom’s report

Copies of the executive summary of ‘Digital Justice: HMCTS data strategy and delivering access to justice’ are available here.

The full 48-page report is here: Digital Justice: HMCTS data strategy and delivering access to justice.

The report was based on research conducted by Dr Byrom during a three-month secondment to HMCTS in early 2019, at the invitation of HMCTS chief executive Susan Acland-Hood. As a public guarantee of Dr Byrom’s independence, it was agreed her post would be unremunerated by HMCTS, and her findings and recommendations would be made public at the end of the secondment.

Dr Byrom’s research was supplemented by two international workshops held over three days. The workshops brought together 38 experts from the UK and overseas, including senior judges, to deepen understanding of key stakeholders’ needs in relation to data, and to share best practice in evaluating the impact of court reform on access to justice. Following the workshops, Dr Byrom drew up a set of detailed draft principles for evaluating the impact of reform on access to justice and their implications for data collection, which formed the basis of a public consultation.

‘Digital Justice’ has received wide support from external stakeholders. The consultation paper on which the findings are based was reported in the specialist legal press and has been featured in seminars at Yale Law School. A research paper based on the report was awarded gold by the Organisation for Economic Cooperation & Development, and was presented at its Equal Access to Justice roundtable in March 2019. The approach to data collection and evaluation has been endorsed by the Administrative Justice Council and the Senior President of Tribunals, Sir Ernest Ryder.

Dr Byrom’s recommendations include:

  • Ensuring HMCTS’s online processes deliver access to justice which meets legal standards as established through case law: access to a formal legal system; access to a fair and effective hearing; access to a determination; access to an outcome (paras 4.10-4.31).

  • Collecting data about court users’ vulnerabilities, including age, mental and physical disabilities, literacy levels, and gender (paras 4.13 and 4.33).

  • Monitoring outcomes in the digital courts, both to compare with outcomes under pre-digital processes, but also to evaluate how different groups fare compared with each other under the new system (for example, represented and unrepresented court users; claimants and defendants; individuals and organisations). (paras 4.33-4.38)

  • Monitoring which types of users and which types of cases are decided by a judge (rather than being determined earlier in the process) (para 4.37).

  • Ensuring transparency around ‘nudges’ built into the system, which are intended to promote or discourage types of behaviour by court users, such as seeking legal advice on a case (say, by positioning of buttons on a screen) (para 4.36.3).

  • Considering the benefits and drawbacks of introducing unique identifiers for each court user to allow researchers and evaluators to have a complete picture of what an individual’s experience of the court process has been – for example, if they have been bringing and responding to multiple cases at the same time (para 4.32).

  • Ensuring strict, clear and ethical controls over how accumulated information is used, to avoid misuse and ensure privacy is protected (paras 4.32; 4.60).

  • Publication asap of HMCTS’ open data strategy, which should be developed in line with with legal and ethical principles (para 6.14-6.15).

About HMCTS reform programme

The £1bn courts and tribunals reform programme was launched in September 2016, by the Lord Chancellor, Lord Chief Justice and Senior President of Tribunals. HMCTS describes it as ‘an ambitious programme…which aims to bring new technology and modern ways of working to the way justice is administered…We know we can make justice less confusing, easier to navigate and better at responding to the needs of the public.’

Phase one of the programme in the civil courts included testing online divorce, probate and civil money claims (with the stated aim of automating and digitising all civil money claims by 2020), social security appeals and online plea services. Phase two involved online public family law, immigration and asylum tribunals. Under the current phase three, online services continue to be expanded, including increasing the number of support centres.

For more information, contact: report author and TLEF director of research and learning Dr Natalie Byrom: natalie.byrom@TheLEF.org

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