Last September, as part of its ‘Transforming our Justice System’ agenda, the Government published a public consultation on proposals to move court processes for certain offences online and introduce ‘assisted digital’: a digital system of support to people navigating the online courts and tribunals systems (HMCTS). Revolving Doors responded, highlighting concerns that people in a ‘revolving door’ of crisis and offending often face multiple and complex needs which can cause and/or exacerbate difficulties in accessing digital channels, and that some aspects of the proposals risked limiting, rather than increasing access to justice.
This week, the Government published its response to the public consultation. We were pleased to see the Government confirm that the use of digital channels will not be mandatory and that users will be able to opt in to one of several assisted digital channels. We were also pleased to see acknowledgement that a digital system will not be suitable for everyone. However, as outlined below, we are concerned that the response does not pay sufficient heed to the implications of a digitalised service for all HMCTS service users.
- Opting in: this assumes that people will be able to make informed decisions about whether or not the online system is right for them. However, the incentives to opt for an online procedure may be strong, as it means avoiding a physical appearance in a potentially intimidating environment, which also may incur travel costs, childcare issues and/or time off work. This may mean that people who would be better served by more traditional means of engaging with courts and tribunals are directed down a path which is suboptimal for their particular circumstances.
- Asking for help: For those who do opt in, the Government emphasises that clear information will be provided through signposting people to assisted digital support; this advice can be provided by telephone or in person. However, it seems that the proposals are underlain by an assumption that users will ask for help if they need it. We are concerned that not everyone will. Many people who have multiple and complex needs have long histories of contact with a wide range of support services. We often hear stories of people being let down by or misunderstood by services that are meant to help, leading to a general mistrust of services. Others tell us that they are embarrassed or ashamed of needing support and may not want to ask for help. Some people may not recognise that they need support, and digitalisation may mean that they have to ask for it, rather than it be offered. We are concerned that even fewer people will ask for help via a computer than they do in person.
- Efficient and effective support: conflicting priorities? Turning to the assisted digital support itself, the government acknowledge the importance of staff being knowledgeable and well trained, stating that "extensive training will be provided to front line Customer Service Centre staff to ensure they are able to efficiently deal with assisted digital queries.” While such training is welcome, how will HMCTS balance the tension between providing an efficient service and a fair and effective service? The two are in no sense mutually exclusive, but we hope Government will proceed with caution and emphasise quality of service.
- Entering a plea online: The digital system involves entering a plea online. The government asserts that "the system will safeguard vulnerable people as it will be designed to prevent users from pleading guilty without a full understanding of their decision and the potential consequences.” This is of course a welcome statement, but expert design and careful testing at scale will be needed to ensure the system meets this intention. Particular consideration needs to be given to people who have not sought legal advice. The Government states that: “if it is subsequently proved that the defendant did not understand the consequence of their decision, the courts will have powers to set aside the conviction and proceedings could be started again.” This option is welcome, however it seems on the face of it to be at risk of abuse, which could undermine the credibility of the system.
- Identification of vulnerabilities: Finally, sentencers and panel members usually have the opportunity to see the person they are dealing with, and to take into account a range of verbal and non-verbal cues. This can help to provide a degree of nuance and insight that digital avenues may hide. We are concerned that the Government’s response does not go far enough in addressing lost opportunities to identify vulnerabilities or support needs that will be lost in moving from a face to face to an online system.
If implemented with care and sensitivity, and thoroughly evaluated, moves towards a more digitalised court process could have a number of important advantages, including reducing unnecessary court appearances. However, there is a long way to go and a number of concerning assumptions continue to underlie proposals. Unless these are addressed, and systems, processes and infrastructure are thoroughly tested, these developments may present both a serious and likely risk to the core principle of access to justice.