The Danger of the Unexamined: courts, evaluation, and Agile

The dominance of Agile as a methodology for technological development may have an unintended consequence. The ‘Just do it’ approach can downgrade the importance of three critical elements in a any project management process: initial goal setting, consideration of principled implications; and critical evaluation of the final product. The result: success (if the application is non-monetary) can only be asserted, not proved and, some way down the line, a project can start to unravel.

A good example of the latter would be the discovery late in the day (and the spending) that, alas, IBM Watson, for all its hype, was not actually powerful enough to drive what looked like a wonderful Australian AI project – Nadia. The plug got pulled.

Our very own Her Majesty’s Courts and Tribunals Service, alas, provides examples for concern. The President of Tribunals for England and Wales, Sir Ernest Ryder, sounds a warning which needs to be heeded. A previous post largely considered the constitutional implications of his recent speech – which are significant. But, there is more.  ‘Reform, he says, ‘must be based on proper research; robust and tested.’ Furthermore, ‘It must be open to scrutiny, and communicated clearly …’ And, because he is a judge and this encourages a veneer of classical cover for controversial statements, he throws in a reference to Socrates via Plato: ‘Just as the unexamined life is one not worth living; the unexamined and unresearched reform may not be worth taking.’

The advantages of prior goal setting and post-pilot evaluation are inherent to all project management – not just those which are technological. Who could deny that? But let us select a project on the very edge of digitalising the courts: a video on ‘Who’s Who in a Family or Cvil Court’ of which notice was proudly tweeted by the HMCTS on the 13th of this month. This is 1 minute 38 second video actually published on Youtube by HMCTS on 5th September last year. Since then, it has attracted 502 views. No doubt HMCTS thought it needed a bit of a push and it was promoted as if new on 13 February. It is one of a series of three in a common format produced by HMCTS which use a cartoon with accompanying words. Was the project set targets for users? And, specifically, for users who were actually going through a court process? Did anyone ask anyone if it was any help? Who knows but we can guess.

Just take sentence length as a guide to intelligibility. This short video displays seven sentences of over 25 words in length and three of 30 or over. The HMCTS seems unfamiliar with guidance from its own Government Digital Service (GDS). This proudly proclaims ‘Sentence length: why 25 words is our limit’. It records that ‘Studies also show that sentences of 11 words are considered easy to read, while those of 21 words are fairly difficult. At 25 words, sentences become difficult, and 29 words or longer, very difficult.’ And GDS was talking of general content – not that which is commentary on what is effectively a powerpoint slide.

A dud video is not, in the scale of things, a major deal. Just a small bit of public money wasted. The problems are greater when we come to major court reform if the same slapdash methodology is used. So, let us examine an HMCTS press release issued two days after its tweet on the video. This announced something much more serious: a pilot video hearing project: ‘A pilot launched today will test the fully video courtroom with members of the public for the first time.’ The essence of this is fine. The HMCTS is going to allow tax appellants to appear through video: ‘HMCTS are writing to potential participants this week to invite them to take part in the pilot. The video hearings will take place over the internet, with each participant logging in from a location of their choice, using a webcam and, for the purposes of the pilot, the judge located in the court room.’

The problem is that the press release lacks a degree of precision. First, it is silent on whether piloted tax video hearings will be publicly accessible. That is a pretty major combined technology and constitutional decision. Second, the HMCTS promises evaluation though this is clearly intended to be positive: it will ‘explore how video hearings might be used to improve access to justice and help cases progress faster’. The Tribunal President talks of research but, in the fast world of building digital courts, he surely means to emphasise the need for impartial and public evaluation against measured criteria. That is not the emphasis of the release. Third, the release muddles two other different uses of technology. It refers to provisions allowing vulnerable witnesses to give evidence through video. That is fine. It is part of the court process. I can sit in the court – as a journalist or simply a busybody – and see what happens. However, HMCTS foresees ‘Making use of technology to hold video hearings for technical parts of cases that mainly involve legal professionals and judges could save court time and help cases to progress faster.’ Well, hold on. As a member of the public, I have a right and, as a journalist, I may have a need, to see these parts of a court case. It might be a good idea to highlight the difference rather than make a facile elision between two different uses of video. It would, at the very least, increase confidence in the HMCTS’s constitutional understanding.

There are other contentious issues: ‘A new paperless system, in operation at Lavender Hill Magistrates’ Court, … means thousands of offenders caught dodging fares or using fraudulent tickets can now be punished more swiftly and effectively.’ This is a pilot with those who have pleaded guilty. They may well be happy with privacy. HMCTS might be happy to take the savings. Actually, as a member of the public, I am not happy. If we want to downgrade fare evasion to an administrative offence and not a crime – which is effectively being done here – then it should be done explicitly. Otherwise, these defendants should hang their head in shame before a physically present beak. And they should not just be treated as if they had left unpaid a congestion charge. To get to this point, they have already declined or sought to avoid a late payment penalty.

The court digitalisation programme is hidden from accountancy scrutiny because its cost is being raised from flogging off courts. That does not mean that its implementation should be slipshod, unscrutinised and under-evaluated. At the very minimum, the Ministry of Justice and the Judiciary need to agree an independent evaluation committee of experts willing to keep uptodate with these fast moving programmes and to flag up unwarranted constitutional infractions, unjustified expenditure and objective and open assessment. This should not hinder the agility of the HMCTS but it may well improve the quality of its product. The President of Tribunals wants ‘Open Justice’ to follow an ‘Open Society’. Let him have it.

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