The Centre for Justice Innovation (established in 2011) is a newish kid on the justice policy block. It is ‘an initiative’ of a US not for profit, the Center for Court Innovation. Its director, Phil Bowen, is a former Treasury civil servant/Michael Gove adviser and co-author of what the UK centre hopes will be a flagship report, published today. Three of its board are linked with the US court innovation centre; another member is Lord Wasserman, former adviser to David Cameron and Theresa May. Co-author of the report, whose full name is Just Technology: emergent technologies and the justice system … and what the public thinks about it is Blair Gibbs, once criminal justice research director at Policy Exchange and also a former Gove adviser at the Ministry of Justice.
The centre ‘champions practice innovation and evidence-led policy reform in the UK’s justice systems’. This suggests its provenance. The report represent the kind of approach that we might have seen from David Cameron’s administration if it had not be seduced by the siren calls of austerity and the bottomless whirlpool that is Brexit – both of which represent continuing major obstructions to the sort of sensible reforms which it proposes. There is, to be honest, relatively little that is really new in the report other than some public opinion surveys which have been commissioned specifically for it. However, there are a number of reasons why it is a valuable addition to policy discussion.
First, it emphasises that the process of justice is important and, in particular, debate on criminal justice is not just about imprisonment and its alternatives/supplements. The report champions seven principles for the use of technology in the justice system – though they might just as well apply more generally – humanity, procedural fairness, proportionality, solemnity, transparency, reliability and accountability. The Centre might like, at some future stage, to move on to discussion about how these could replace the caustic ‘hostile environment’ rhetoric in Home Office practice and policy on, for example, immigration. There is an interesting debate, also not pursued in the report, about how its principles might benefit from protection by human rights provisions such as Article 6 of the European Convention, attack on which may be the next target of the Brexiteers.
Second, the report is comprehensive in coverage and consistent in approach. It covers policing (in particular facial recognition), online legal advice, online courts, decision-making (eg in relation to bail) and artificial intelligence and the role of electronic monitoring in supervision of offenders. Legislation should cover the difficult areas and make explicit both what can be done and how it is to be done. Legislation needs to be backed by research. ‘We support,’ says one of the more generously worded recommendations, ‘the Ministry of Justice in its efforts to improve the evidence base …’ And, overall, technology is to be seen as a tool for the use of, but not a replacement, for personally orientated services. The authors are very clear about that in relation to tagging and probation: ‘We suggest that offender monitoring technologies should continue to be deployed with specific boundaries but should not be seen as a general substitute for human supervision’.
Third, the report has some warnings about the public acceptability of online courts. Here is an issue which really needs some debate and it would be a good issue in which, say, the House of Commons Justice Select Committee might engage in if the Ministry of Justice is shy of opening up the issue to democratic discussion: ‘does logging on, pleading out, and paying your fine really fit with the public expectation of the justice system? When do they think it may be appropriate – and when not? Equally, does appearing incur via a video link while on trial for a serious crime feel, to the public, like justice?’ The authors found that ‘for any vaguely serious changes [the public] were clear that people must attend court in person. This, they argued, was vital for the integrity and legitimacy of the justice system’. This can sound like a no-brainer but it has serious implications for the court closure programme which is going to make it much harder for participants to attend courts and, indeed, is advanced on the basis that they will not need to – even though this principle has not been democratically debated or enshrined in any statute.
Fourth, the report covers online legal advice, highlighting as example the guided pathways of MyLawBC and the assisted disability benefit applications of C-App. Three recommendations of the report would bring the Ministry of Justice back into taking some responsibility for wider provision of legal services than simply administering legal aid expenditure: Recommendation 6: We recommend that the Ministry of Justice, in collaboration with independent funders of legal research, should explicitly commit itself to investing in the trial of online legal advice services whereby citizens can manage their own legal issues across a range of legal problems. Recommendation 7: We recommend that the Ministry of Justice, in collaboration with independent funders of legal research, should invest in evaluations to test the efficacy of these trials. Recommendation 8: The Ministry of Justice should actively consider the creation of a new independent, arm’s length body, tasked with investing in trialling new ways to expand legal advice to the public, along the lines recommended by Martyn Evans in his review of Scottish legal advice.’
The Centre launched its report just as cabinet ministers were packing their bags for what was heralded (once again) as showdown time on Brexit. These are difficult days for rational debate of complex political matters. Michael Gove, now Environment minister, famously said, in relation to Brexit, that ‘the British public have had enough of experts’. As a bit of policy wonk himself, he probably did not mean it other than for the beleaguered area of the UK’s relationship with the EU. Unlucky in its timing as this report may be, let us hope that it helps to open up a space for rational – and, indeed, expert – discussion of the justice system.