The HMCTS reform agenda, with its emphasis on digitisation of court processes has been ambitious, revolutionary and unprecedented. But as more and more court processes go online, and without the assistance that might have been available before the Legal Aid, Sentencing and Punishment of Offenders Act 2012, there is a risk that access to justice will be frustrated for those lacking the literacy and competence to use processes set in the digital world, if their needs are not accommodated. In the HMCTS White Paper accommodating the reform agenda, it was conceded that a significant portion of the population, around 70%, were “digitally excluded”[1] or needed assistance in accessing digital services,[2] highlighting the extent to which digitisation may, without careful planning, undermine the rule of law.  Ensuring access to justice for digitally excluded people was at the heart of JUSTICE’s 2018 Working Party report, Preventing Digital Exclusion from Online Justice.

Digitally excluded and “Assisted Digital”

 The Working Party considered particular obstacles for people engaging with “online justice services”, identifying geography, vulnerability, age, homelessness and detention all as obstacles to access. To guarantee uptake of online justice services, the report recommended HMCTS provide “Assisted Digital”, the technical support service Government proposes to accompany online justice services,[3] in locations likely to be accessed by digitally excluded populations; “trusted places” such as community organisations and libraries.[4] To promote the efficacy of Assisted Digital, the Working Party proposed that HMCTS exploit the potential of its “multi-channel”[5] approach and pay particular attention to how the service operates in geographically remote regions,[6] recommending that data on how people use the service and online justice services generally inform the reform agenda.[7]

In recognising that particular “digitally excluded” groups will experience acute challenges, the Working Party called upon HMCTS to adopt a specialised approach to certain groups. For homeless people, emphasis was placed on the importance of identifying “trusted services” that might have infrastructure available to allow homeless court users to get online.[8] For detained populations, security concerns have historically limited access to technology within the correctional estate. Detainees have limited access at the same time that digitisation of criminal justice processes advances rapidly.[9] The Working Party called upon HMCTS to consider a particularised approach to detained populations, one that balanced security and safety needs on the one hand against the importance of allowing detained populations to properly engage with their criminal or immigration case as more of it goes online.[10]

Designing services to prevent exclusion

The Working Party also considered how design and future proofing could guarantee the uptake of online justice services and promote access to justice. While many prospective court users may not own a laptop, or have immediate access to a desktop computer, a significant portion of the population owns a smartphone, with around a quarter of all adults being solely reliant on devices other than computers to go online.[11] The ubiquity of smartphone usage was cited in support of the recommendation that HMCTS provide intuitive and design friendly mobile applications for accessing justice services.[12]

More generally, the Working Party considered intuitive, well-designed online justice services as likely to promote uptake, while poorly designed, clunky services were seen as liable to frustrate attempts at engagement and cause users to “give up”.[13] For the Online Court,[14] the mostly online adjudicative forum proposed for certain low value claims, design features such as allowing progress to be saved, enabling visually impaired users to enlarge fonts, eschewing cluttered screens for the use of white space and avoiding the need to have to repetitively input information were all proposed as potentially useful features for digitally excluded users.[15] Intuitive design would also feature “signposting” at an early stage of a digital process, directing users to authoritative sources of legal advice and information,[16] such as Citizen’s Advice Bureaux[17] and Advicenow.[18]

The Working Party also emphasised the importance of ensuring the Online Court and any future courts and tribunals which delve into the online realm have websites that make clear their constitutional independence from government. The websites of the UK Supreme Court[19] and Courts and Tribunals Judiciary[20] both feature unique design distinct from the “gov.uk” style. They were cited as illustrative examples of design that makes clear to those foreign to the system that those bodies are distinct and independent of government.[21]

Conclusion

Digitisation of the courts represents a unique opportunity to simplify court processes and promote access to justice, but it must not come at the expense of the most vulnerable users of court services. HMCTS has been responsive to the Working Party report and has engaged with JUSTICE in response to the recommendations. We are certainly hopeful that Preventing Digital Exclusion advances the reform agenda and that a measured and considered approach to digitisation promotes, rather than hinders access to justice.

Alex Walters, Civil Lawyer at JUSTICE.

[1] The term “digitally excluded” refers to those who lack access either to the internet or to a device, or the skills, confidence or motivation to use it, JUSTICE (2018), Preventing Digital Exclusion, pg 4.

[2] Ministry of Justice, Transforming our justice system: summary of reforms and consultation (CM 9321, 2016) pg 13 para 7.13, available at https://consult.justice.gov.uk/digital-communications/transforming-our-courts-and-tribunals/supporting_documents/consultationpaper.pdf

[3] HMCTS is trialling Assisted Digital support services through online, telephone, paper and face-to-face channels. JUSTICE is engaging with HMCTS regarding the efficacy of those services.

[4] Footnote 1, pg 28, 77.

[5] Multi-channel reflects the presence of a service across multiple forms of communication, such as mobile, paper-based, and email, ibid pg 58-59.

[6] Ibid para 2.20. Geographically remote regions, such as parts of Wales, have infrastructure shortfalls, such as a complete absence of mobile coverage, which will stymie the efficacy of online justice services without particular consideration as to how those areas might be serviced, Ofcom, Mobile coverage improving but rural Wales lacks decent service (15 December 2017), available at https://www.ofcom.org.uk/about-ofcom/latest/media/media-releases/2017/wales-mobile-coverage-service

[7] Footnote 1, pg 51-52.

[8] For instance, services that homeless people are likely to access that have Wi-Fi, ibid pg 31-32, 77.

[9] For instance, Crown Prosecution Service papers are now served either by email in magistrate’s courts or uploaded into the Digital Case System for the Crown Court, which creates a particular problem where you have an unrepresented detainee who is likely to struggle to gain access to technology needed to view their case online.

[10] Footnote 1, pg 35-36.

[11] Ofcom, Adults’ Media Use and Attitudes Report 2018 (25 April 2018), available at https://www.ofcom.org.uk/__data/assets/pdf_file/0011/113222/Adults-Media-Use-and-Attitudes-Report-2018.pdf p. 20; pp. 37-8. See Chapter II, paras 2.60-2.64 on young people and social exclusion.

[12] Footnote 1, pg 78.

[13] Ibid pg 60.

[14] The most oft-cited recommendation from the Civil Courts Structure Review, Lord Justice Briggs, Civil Courts Structure Review: Final Report (Judiciary of England and Wales, 2016) available at https://www.judiciary.uk/wp-content/uploads/2016/07/civil-courts-structure-review-final-report-jul-16-final-1.pdf

[15] Footnote 1, pg 61.

[16] Ibid pg 79.

[17] https://www.citizensadvice.org.uk/

[18] https://www.advicenow.org.uk/

[19] https://www.supremecourt.co.uk/

[20] Courts and Tribunals Judiciary, About the judiciary, available at https://www.judiciary.gov.uk/about-the-judiciary/.

 [21] This recommendation responds to the problem that a claimant appealing a decision from a body that has a “gov.uk” website, like the Department of Works and Pension, to a court or tribunal with a “gov.uk” website, like a First Tier Tribunal, may not be able to perceive the independence of the latter, which may in kind produce a lack of trust in the process, see footnote 1, Chapter II.