The public acceptability of ODR hearings has been questioned by an unlikely and – for Her Majesty’s Courts and Tribunals Service – rather unfortunate combination. First came an exemplary -and rather exposing by comparison – report on the same issue by the the US National Center for State Courts; then BuzzFeed journalist Emily Dugan and the implacable campaigner, Penelope Gibbs of TransformJustice joined forces to accuse HMCTS of evidence suppression.
The first ethical rule for governments – as lawyers (perhaps even all of us) – is not to lie. Let us not be naive. This is, of course, famously not the same as always telling the truth. The second is, however, that, if you are going suppress information and mislead by implication, then don’t get found out. HMCTS published a consultancy report on ODR hearings which hid inconvenient findings. It was tripped up by Freedom of Information requests.
The report in question is the ‘Citizen User Experience Research’ carried international agency Kantar Public. Kantar’s aim is to ‘is to partner our clients around the world on the next generation of public policy challenges, and we are adapted to work in a world that is post-globalisation, digital and dynamic.’ The main published findings were not exactly shattering and tended to jargon: As an example, this was the first:
‘The qualitative research found that the key user need was increasing the visibility of the processes and stages in the user journey which can be achieved by providing the right information in a timely manner. Having sight of the whole journey and having information on progress, as well as information on what to expect was an important factor in perceptions of experience across all jurisdictions and at all stages of the user journey.’
Produce your own summary in ordinary language. My version would be: ‘Users should be informed of how their case is progressing within an overview of the whole process.’ That is 75 words boiled down to 17. Did I miss anything?
The main case against the research is, however, not verbosity and jargon. It goes to substance. This is Ms Dugan: ‘The Ministry of Justice left data out of a published report that showed people had a more positive experience of the justice system if they had physically been in court, a finding which senior lawyers and campaigners say undermines its push to take more cases online and out of courtrooms.’
The missing core suppressed from the report is that people, at least for now, prefer physical court hearings. As Ms Dugan puts it, ’The previously unpublished survey data shows that users of the justice system who had physically been in court were almost 50% more likely to strongly agree that they had been listened to; that the courts were open and accessible; and that they were able to participate and take part with confidence. While 40% of court users strongly agreed they had been listened to, just 27% of those whose cases had been dealt with outside a physical courtroom felt that way. The gap was the same for how open and accessible they felt the process was, and how able they were to participate and take part with confidence. There was also a contrast in what people felt they had achieved. While 39% of those whose cases were dealt with in court strongly agreed that they could do what they needed to do, for those not in court, the proportion was just 31%.’
How inconvenient that ordinary people prefer physical hearings to online ones. If only they did not. As the campaigning Ms Gibbs puts it, ‘Proponents of the digital court reform programme claim that people prefer doing justice online or on the phone. But the evidence for this is thin … This research suggests that people have a better experience of the courts’ service if they go to court in person.’
It was rather bad luck for HMCTS that the National Center for State Courts turned up at much the same time with its 2018 report on the State of the State Courts. This provides, by contrast, an impeccably transparent national opinion survey of 1000 registered voters. How terribly inconvenient for HMCTS that this is pretty well the same sample size that it found unsatisfactory: ‘HMCTS says that conclusions about the contrast in experience could not be drawn from the survey data because of its “limited” sample size. However, more than 1,000 people were surveyed for the report …’ That is the same as in the US study.
The US findings on ODR were that: ‘The online alternative to in-person court appearances finds widest acceptance for minor infractions or disputes. Online isn’t seen as appropriate for family matters. Younger, college educated, and higher income voters are more likely to be online and to be open to online dispute resolution. Cost and efficiency are drivers for using online over appearing in-person.’ The report contains the rather damning sub-heading: ‘Voters show a tepid interest in alternative methods to representation and dispute resolution.’
In more detail, ‘There is a clear distinction in the type of cases the public is ready to consider for online dispute resolution. Traffic tickets, consumer debt, and small claims are all seen as a good place to start. Housing disputes and receiving a verdict of settlement are of less interest now, but could find more openness over time. Voters who are younger and with a higher educational attainment or incomes are more likely to opt for an online resource over the courthouse. No group finds an online alternative for dealing with family matters to be appropriate.’
The report concludes: ‘It is important to note that … it is clear that voters have very ‘soft’ beliefs when it comes to ODR, and that further education and experience could dramatically shift these numbers.’
The point is not that the US report’s conclusions are right but that they present the HMCTS with a lesson in transparency. They also seem to me considerably more mature than those of Kantar Public.
Even so, my own conclusions on the substance of ODR acceptability would actually differ from that of the US report. For me, the HMCTS modernisation programme is likely to deliver results for the professional users but at the expense of ordinary people who are unrepresented litigants. Even if you disagree with this, you would have to admit that it is, at the very least, a legitimate concern and would benefit from public acknowledgement and debate.
The HMCTS has other ‘research’ on video hearings which it uses to justify their acceptance. Well, read this and weep. This was the section on technology findings:
‘• The majority of video hearings experienced technology difficulties, which were quickly dealt with by the users themselves or by the video hearings team at HMCTS. Technology difficulties included issues around Wi-Fi, audibility, visibility of parties on the screen or access to documents.
• In many cases, the hearing had to be paused and restarted, which usually solved the problem.
• Some technology problems could not be resolved (usually due to poor Wi-Fi connections), resulting in a technology fail and the hearing being abandoned.
• While users took a pragmatic approach to this, there are still hurdles to be overcome to ensure that the technology is robust and usable.’
The research team were given selected cases. They only got eight successful video hearings despite exceptional technology resources. And let us hear the consultants’ own concerns: ‘The findings of this report are limited by the sample size, though most users report similar experiences with their hearing. Although the researchers observed all hearings that took place and interviewed all users that were available and consented to the research, they were not involved in the selection of cases. There is the possibility of self-selection bias, in that only users who are favourable to video technology returned the pre-hearing questionnaire sent out by HMCTS. It is also possible that case selection was made with conservative estimates of suitability. The results should be read as exploratory and preliminary, based on a small sample of cases studied in-depth. We recommend additional research is conducted to investigate ways to address possible self-selection bias.’
The shift to video hearings and ODR is a major constitutional change. It requires care, consideration and transparency. Good for Ms Dugan and Ms Gibbs for pointing this out. But we should be able to rely on a body like HMCTS not to place itself in a position where it can be called for suppression of evidence. And there are surely well explored ethical rules for consultancies where their findings prove inconvenient for their funders.