Court Modernisation, Empiricism and Digital Exclusion

32 institutions and individuals had submitted evidence to the House of Commons Judiciary Committee in relation to Court and Tribunal reforms by the end of 8th April. Dipping in and out of these reveals a number of themes and a number of specific areas of concern from preservation of the rule of law (Public Law Project) to the public acceptability of virtual criminal hearings (Centre for Justice Innovation). This piece is, however, going to focus on one issue: digital inclusion. And, for this, we can select two worthy protagonists. In one corner, we have technology guru Richard Susskind,who will be recognised internationally, and, in the other, the Citizens Advice service which probably won’t.

Let us lay to rest any suggestion of personal bias. I have immense respect for Richard Susskind. He started the debate on technology in the law at a time when he was dismissed as a crank. He has ploughed a straight furrow since and deserves his current eminence. Nor am I, as a fellow dweller in the not for profit world, a patsy for the Citizens Advice Service. In fact, I am a scarred veteran of long forgotten wars of demarcation between law centres and citizens advice bureaux which are probably remembered by less than six people still alive. But praise for the Citizens Advice service still makes me feel as Hiroo Onoda, the last Japanese soldier to emerge from the jungle, must have done towards his onetime enemies when ordered to surrender in 1974. Nevertheless, as Richard Susskind should discover, prejudice needs to be overcome.

Professor Susskind’s evidence shades to the intemperate. Digital exclusion is not an issue for him: ‘the critical rhetoric here does not align with empirical research. According to the Office of National Statistics, 90% of adults in the UK in 2018 were recent internet users. [1] If we also take ‘proxy users’ into account (grandfather is not an internet user but his grandchildren can help), the percentage of excluded adults falls well below 5%. [2]  I am satisfied that HMCTS’s provision for this small but important minority, under the heading of ‘digitally assisted’, is sufficient to ensure all citizens have access. It is interesting, in passing, to compare the above figures with the statistics relating to physical disability. In the UK, around 19% of working adults have a limiting long-term illness, impairment, or disability, [3] for many of whom an online court would surely be more convenient and less traumatic than attending a physical court.’

Overall, the Professor is irritated by the carping of those who take  what he sees as positions of principle not empirical perception: ‘I am concerned that very few critics of online courts (including judges) have seen them demonstrated or heard directly from people who have used them in earnest. There is a danger that policy thinking is being driven by assumption and instinct rather than evidence and experience.’

But, this is to set up somewhat of a straw target and leaves him vulnerable to institutions like the Citizens Advice Service who do precisely have the personal contact with users for which he argues. And you don’t criticise the Citizens Advice empirical base lightly: 300 member advice services, 30,000 advisers (of whom 23,000 are volunteers); incorporating the Ministry of Justice’s Witness Service; 4.2 million issues assisted annually.

It might be worth quoting the CAS’s submission at length on digital exclusion, skills and literacy: ‘HMCTS argue that support will be available via Assisted Digital services.  We are concerned that the way that assisted digital services as currently envisaged remains focused on providing technical digital help which ignores the reality that court and tribunal users will need help with both understanding the process they are going through in legal terms and using digital tools. We understand that the pilot of assisted digital has indicated that people often present with digital, information and advice needs. A model of support which does not address all the needs people have risks becoming a barrier to justice rather than a facilitator.  Any suggestion that people can simply be referred for advice then return for digital support fails to address the risk of referral fatigue which could increase the chance of people simply giving up.  It also fails to address the question of ensuring that there is sufficient capacity in the advice sector to meet demand.

‘Our research suggests that users of HMCTS services will have very variable levels of digital capability – from people who are very comfortable online, to people who have never used the internet and have no email address. As a service people with lower levels of digital capability are disproportionately represented in our face to face client statistics. In February 2016 Citizens Advice undertook a survey of our face-to-face clients to learn more about their digital capability.  The findings showed that our face-to-face clients are:

●       Twice as likely to lack basic digital skills as adults in the UK – 23% of adults in the UK lack basic digital skills.  For our face-to-face clients this was 46%

●       Twice as likely to lack access to the internet as adults in Great Britain – only 61% of our face-to-face clients had internet access in their home, with a further 11% having access on a smartphone’.

Well this amounts to: Nuff Said. Yes. The sort of clients who will consult Citizens Advice and have tribunal or small claims cases do have issues of digital access and literacy. And No. HMCTS’s attempt to separate information needs from digital assistance does not work in practice – however convenient it may be in limiting expense. Alas, the position taken by the HMCTS and supported by Professor Susskind looks itself, to put it best, a little lacking in empiricism.


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