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Lord Justice Brooke
Judge in charge of Modernisation
"The Information Society, the Judiciary and the Courts"
A lecture given at the University of Hertfordshire, St Albans
23 May 2002
IT Mania
- Over the Easter holiday I read a book by John Cassidy. It was called
"dot.con". It is the story of "dot com" mania in
the United States. It was a bit like tulip mania in the seventeenth
century and the South Sea Bubble in 1720. Ridiculous claims were made
about the benefits of a new information super-highway. Investors parted
with a lot of their money in exchange for shares in the new dot.com
companies. Then the bubble burst. A lot of people looked pretty silly.
Public Sector IT Disasters
- In this country we sometimes read about disasters in public sector
IT investments. A recent example involved the scrapping of a complicated
system commissioned by the Immigration Service. A lot of public money
was wasted. Civil servants processing thousands of new asylum claims
did not receive the support they needed. The delays in processing these
claims grew and grew. A lot of money has also had to be written off
in connection with other big Government schemes.
The Historical Context
- It is against this unpromising background that I am talking to-night
about the Information Society, the Judiciary and the Courts. Later on,
I will describe some of the practical applications of modern technology
which I think are likely to help us in the conduct of court business.
But I was brought up as a historian, and I do not think it is sensible
to consider where we are now or where we may be going, without first
considering how we have got here.
Binary Digits
- In very simple terms, computer technology is all about the manipulation
of a couple of digits, 0 and 1. We can leave the technical details to
the experts. All we need to know as lay people is that when text, or
sound, or images, are translated into this binary digital form, they
can be moved about within a computer, or from computer to computer,
with incredible speed.
Expert Systems
- Clever programmers can use computer technology as a means of developing
artificial intelligence. Twenty years ago I remember being struck by
the early chess programmes by which one played chess against a computer.
Depending on the way it was programmed, the computer was allowed increasingly
small periods of time to think about its next move. I could normally
beat it at Level One, where it had to respond almost instantaneously.
At any higher level it tended to beat me every time. Some so-called
expert systems were written for lawyers more than ten years ago. Nothing
much came of them. I believe that one day they may provide a lot of
help for lawyers, but they have not really arrived on the court scene
yet.
Word Processing and Information Retrieval
- Computers can also juggle words around. I first came across word-processing
at a big City firm in the mid-1970s. I thought it was magic. I have
used it ever since. They are also very good at searching for words or
numbers, or combinations of words and numbers. I remember attending
a launch by Butterworths in 1978 of its link up with the LEXIS legal
information database in Dayton, Ohio. This seemed pretty remarkable
in those days, although for various reasons the take-up was quite slow.
Communications software
- The first time I came across applied technology in any major way in
my legal practice was in 1983. In that year I was appointed Counsel
to the Sizewell Inquiry. As soon as I joined the Inquiry, I remember
being struck by the way in which the official transcripts of the Inquiry
were being transferred digitally from the transcribers' computers to
the CEGB's computers at Snape Maltings, in Suffolk, and then sent digitally
to computers at the CEGB's headquarters in London. Their lawyers and
senior staff in London could read each afternoon the transcript of what
had been said 100 miles away at the Inquiry in the morning.
Fax Technology
- A little later I encountered fax for the first time. In 1984 I first
saw how fax machines could translate manuscript writing into a form
in which they could be sent down the telephone wires. They would then
be reconstituted at the other end. This revolutionary technology enabled
the teams in London (or wherever) to exchange draft documents with their
lawyers in Suffolk without them all having to travel to the same place
for a meeting, and then communicating afterwards by posting letters
to each other.
Investigative Systems
- Another aspect of the magic on display at that Inquiry were the applications
which enabled an operative in the control room of a modern nuclear reactor
to interrogate the plant systematically when a fault of some kind became
apparent on the computer screen. This scene in a modern English control
room was a far cry from the chaos in the control room at Three Mile
Island in 1979. There the half-trained operatives of a small private
US utility were confronted by so many flashing lights and ringing alarm
bells that the only way they could obtain space to think was by turning
all the safety devices off so that they could get a bit of quiet time
to think. Objectors pointed out that systems designed by human beings
could not be relied on to be 100% dependable all the time, particularly
as they were not designed to cater for the unknown. Of course they were
right, but it was equally right to make all the use one could of applied
modern technology to lessen the risks involved in using what was potentially
very dangerous modern plant.
The Bar in 1985
- All this made me wonder what modern technology could do for legal
practice. When I returned to the Bar in 1985 I returned to a different
world. The prevailing culture among lawyers had an antipathy to technology.
When our Bar Computer Committee met for the first time that year, we
sent a circular to all 360 barristers' chambers in England and Wales,
asking them whether they would be helped by receiving clear guidance
about practical applications of IT. If they said "yes", we
asked them what form that guidance should take. 50% did not reply at
all. Another 25% replied politely to the effect that they could not
imagine any way in which IT could help them. And above that level there
were various degrees of polite interest up to the very, very few enthusiasts
who were already networked and knew it all.
Accounting Systems
- At that time most chambers accounts were maintained on manual card
index systems. Barristers' fee notes were typed out by hand. When consultants
visited the vice-chairman of the Bar in 1987, they looked into his clerks'
room and asked the senior clerk what was the total amount of unpaid
chambers debts. The senior clerk said that he had no idea. He imagined
it was about a million pounds. These unpaid debts did not carry interest.
In those days the Bar concealed the effects of its inefficient working
practices simply by charging higher fees. There was no incentive for
early payment.
Work Stations and Electronic Filing
- I remember we had a barrister employed by Rank Xerox on that first
committee. He had a work station at work, and he regularly exchanged
draft documents from all over the country with other Rank Xerox lawyers
and senior managers. Our first chairman, Christopher Bathurst, was also
the director of a newspaper company. His company used IT quite extensively
for communications between its various works. He could not see why information
could not be sent in the same way between lawyers' offices and an electronic
file at the local court. This would save all the cost and delay involved
in using the methods of communication then in use. This was a language
which most of those in the Lord Chancellor's Department in those days
did not begin to understand.
Enabling systems and videolinks
- When we met the members of the Lord Chancellor's Civil Justice Review
in 1986, we told them we believed that there should be investment in
IT systems at civil courts which would enable judges to manage all the
business at their court efficiently. They accepted our recommendation,
but the Government did nothing about it. In a different forum we discussed
with the Home Office the merits of a San Diego video-link project for
remand hearings, linking a court with the local prison. It was popular
with prisoners in San Diego in 1986. It has been popular with English
prisoners since it was introduced here two years ago.
Nothing new except the Internet
- I am telling you all this to show you that there is nothing very new
about the processes we are now at last beginning to see in our courts.
The one invention we did not anticipate was the Internet. Its arrival
helped to move things along a bit.
Falling behind over countries
- Between 1986 and 1999 this country steadily got further and further
behind countries like the United States, Canada, Australia and New Zealand.
We also got behind a number of European countries who were making big
advances in the use of technology in their courts. The Lord Chancellor's
Department was a small Government department. Legal aid spending was
out of control in those days, and it was not allowed to invest in IT.
While the Treasury allowed other Government departments to invest quite
heavily in IT during the 1990s, the courts missed out badly.
Four success stories: CBPC, CREST, CASEMAN and JUDITH
- We did not completely stand still. Those years saw four major advances.
A computerised bulk process centre at Northampton now handled the claims
of a handful of major organisations electronically. A Crown Court system
called CREST enabled back-office staff in the Crown Courts to do their
work more efficiently. Similar arrangements called CASEMAN were introduced
five years ago into the county courts for much the same reason. And
a judicial technology project called JUDITH provided about 400 full-time
judges with laptop computers and software, including communications
software, to go with them. Apart from a few freestanding back office
systems in specialist courts, and a communications system for civil
servants, that was about all.
1999: A change of attitude
- We couldn't go on ignoring technology for ever. New senior managers
joined the Court Service who knew a lot about technology in the modern
world, and they insisted that we should have a good long look at all
our court processes. By this means we could see whether these processes
could be made simpler and more straightforward if computers were used
for the things they are good at.
The court modernisation programme
- The result of all this thinking has led to the court modernisation
programme of today. I am a member of the new Programme Board. This is
the first time a senior judge has ever served on a Government Board
of this kind. This means that the judges are at long last close to the
place where spending decisions get taken. I lead a team of five judicial
advisory groups which are helping with different aspects of the programme.
It aims to introduce modern IT infrastructure into all our courts. At
the same time we are examining different ways of conducting court business:
ways which would be impossible to contemplate without modern technology.
Civil and family business centres
- Far and away our greatest need is to introduce software systems which
will enable court staff and judges to manage court business better in
the civil and family courts. Today the courts are not networked. CREST
and CASEMAN link dumb computer terminals with a court database, but
we are miles behind most government departments and modern private sector
businesses. Our aim is to lop off the business sections of the civil
courts, and to enable those courts to concentrate on their real purpose:
hearing defended cases. The back-office business will be diverted to
new business centres, linked to the courts by IT. The first of these
business centres will start on a pilot basis in the Midlands this autumn.
Enabling Applications
- In the autumn we also hope that testing will have begun for the new
software systems we will use in future in all our courts. At present
we rely on paper filing systems. It is not always easy to retain and
motivate staff when files go missing, or get into a muddle quite so
often. Nowadays court users have every reason to complain about some
of the delays and inefficiencies that occur. Once modern software is
in place, court staff and judges with case-management responsibilities
will be able to handle cases far more efficiently before trial than
is possible today. A modern electronic diary and listing system will
enable trial dates to be fixed more quickly and judges' time to be more
effectively used.
In-court technology: XHIBIT
- I will now talk about some of the applications of technology we are
now trying out in court. If you go to the Chelmsford Crown Court, you
will see a new information system called XHIBIT
in action. This system has been developed as a result of discussions
between the different criminal justice agencies, all of whom have an
interest in knowing the progress a Crown Court trial is making. Witnesses
need to get to court at the right time, and not have to hang about there
for ages. It is helpful if police officers who have to give evidence
in a case are not taken away from their other duties for too long. Those
who are concerned in the next case in the list have an interest in knowing
whether the current trial is running to time. And so on.
The logging arrangements
- XHIBIT is a web-based system which depends on someone in court keeping
a log of events which are then transmitted instantaneously to the XHIBIT
screen. Prosecution opening speech; Prosecution lay evidence; Police
evidence; defence evidence; closing submissions by the prosecution;
judge's summing up; jury in retirement; verdict. These are some of the
entries that may be made.
Information screens and text messaging
- The information on XHIBIT is accessible on monitor screens in the
public parts of the court building, and also on the particular Crown
Court website, which is accessible by everyone who has an interest in
the progress of the case. Text messages can also be sent to people who
need to be warned when to attend court. After a successful launch at
Chelmsford, its use was extended to two other Crown Courts in the Essex
area. It will soon be tested at Liverpool, which is a much bigger centre.
Money Claims Online: the origins
- Money Claims Online (MCOL)
was formally launched three months ago. It came about in the following
way. For about ten years a number of very big organisations have been
using the centre at Northampton to enforce payment of their debts through
an electronic process. All through the 1990s this centre used to receive
their unpaid final invoices by post. It would then issue and post a
county court summons electronically. When the debtor did not respond
to it within the prescribed period, the centre would issue and post
a default judgment to both creditor and debtor. The execution process
could then be issued electronically. More recently, the users of this
service could send their final invoices to the centre by e-mail.
Court business by computer
- This facility did not only provide an efficient service for enforcing
the payment of unpaid debts. It also took away from the courts a large
quantity of undefended business of a routine kind which could be processed
just as easily by computer as it can by judges or court staff. Of course,
when the debtor shows resistance, the action is processed through the
appropriate county court as a defended action in the usual way.
The modern online claims service
- MCOL is the logical next step forward. It is available to all of us, provided
we have access to the Internet and to a credit card. At any time of the
day or night a creditor can fill in the form for a money claim and send
it electronically to the Court Service for processing. The different boxes
on the form have to be completed. The information in them will then provide
the Court Service computer with the data it needs to issue and post the
claim to the defendant named on the form. The claim will not be issued until
the court fee has been paid electronically. The amount of the fee, and the
amount of costs that can be claimed, appear on the form once the requisite
details have been completed.
The take-up so far
- 3,600 claims have already been issued in this way in the three months
since the service was launched. We were expecting a slow take-up at
first, but this will pick up as the usefulness of the service becomes
better known. The next step is for facilities to be added by which a
defendant can file his or her defence online if the claim is disputed.
Electronic presentation of evidence (EPE)
- For some time now, courts have been using the electronic presentation
of evidence ("EPE") in major criminal trials. Anyone visiting
the Maxwell trial, for instance, would see two monitor screens. The
first would show the raw Livenote transcript scrolling up a few seconds
after the words were said in court. The other would generally show the
witness's face (because it was a very large court). If use was made
of the facility to show a document on the screen, everyone in court
could read the document, too.
The use of zoom facilities
- Zoom facilities enable the operator to highlight features of the document
which a party wants the jury to see, such as the signature, or the manuscript
writing on a document. Experience has shown that juries like this kind
of presentation. It also saves a lot of court time. If any of the parties
want the document printed and put in the jury bundle, this can easily
be done.
Computer graphics
- This facility will also enable a party to make a complex case easier
to understand by using computer graphics. In big fraud cases, where
money is said to have whizzed about through a number of bank accounts,
it is very much easier to demonstrate its movement graphically than
by the use of the spoken word. In the United States EPE is common. Increasing
use is being made there of computer graphics to illustrate features
of a case which will provide a knock-out blow if they can be put before
the trial court.
A US example of EPE
- There was once an American case concerned with a catastrophic fire
in a hotel ballroom. The fire was said to have started in an anteroom,
and it then passed at speed through a hotel lobby on the way to the
ballroom. The owners of some sofas in the hotel lobby escaped liability
when their lawyers could show that the fire must have passed through
the lobby at high level at such a high speed that it would not have
even touched the sofas on its way. We were shown the graphics at a London
conference ten years ago, and their message was irresistible. The flammable
attributes of the sofas could not possibly have been to blame.
Testing the data
- In a case like this, everything will turn on the accuracy of the data
put into the computer. Experts will have considered all the relevant
evidence - about the heat of the fire and about the time when it was
seen in different places, for instance - before they prepared the graphics.
The real battle between the parties will not be fought at the trial
(where the pictures are dynamite) but at the pre-trial case management
conference when the admissibility of the evidence is put under challenge.
The judge will then have to consider whether it was fair to rely on
the data used in compiling making the graphics.
EPE in criminal trials
- Over the last ten years there has been increasing use of EPE facilities
by the prosecuting authorities in very big trials. The courtroom is
specially fitted up with the necessary hardware and cabling, and the
judge and the lawyers are taught how to use it for the purposes of the
trial. Tiresomely, each of our major prosecuting authorities use different
software, and in due course decisions may have to be made as to whether
this is a sensible way of going about things.
Visual presentations
- In American courts it is now becoming very common to demonstrate the
effect of evidence by the use of Powerpoint or other similar technology.
Those who use it know that the eye takes in information much more quickly
and efficiently than the ear does.
EPE: The pilot courts
- We are now tackling the introduction of EPE in a systematic way. Since
the modernisation programme started two years ago, nine Crown Courts
have been earmarked for trials of this equipment: Birmingham, Blackfriars,
Bristol, the Old Bailey, Kingston, Leeds, Liverpool, Manchester and
Southwark. We are now considering the wiring systems for the roll-out
of IT infrastructure into all our major courts. Decisions will soon
have to be made as to how many criminal and civil courts will be able
to accommodate EPE as a matter of course without special arrangements
having to be made.
Video-conferencing: a recent case
- Earlier this year there was a case in which a woman paralysed from
the neck downwards claimed she had the mental capacity to understand
what she was asking for when she wanted her doctors to turn off her
life-support systems. The President of the Family Division, Elizabeth
Butler-Sloss, went with court staff and the lawyers in the case to the
claimant's bedside, where the proceedings were recorded by video for
the benefit of those sitting in the trial courtroom. When the case continued
in court, the claimant could watch the proceedings from her hospital
bed. At the very end of the trial the technology was used to enable
the judge to give her judgment from Birmingham to the lawyers sitting
in court in London.
Videoconferencing: the pilot courts
- During the modernisation programme three civil court centres, at Cardiff,
Leeds and the Royal Courts of Justice in London, have been equipped
with video-conferencing facilities. Two others, at Manchester and Birmingham,
have paid for it out of their own resources. Experience is showing its
value for a number of different types of case. For trials it is being
used where a witness is abroad, or is seriously disabled, or is a long
way away from the court, and it would be disproportionately expensive
for him to travel there. It is also being used for pre-trial hearings
where one of the party's lawyers is a long way from the court where
the hearing is being conducted.
Video links with prisons
- In criminal courts video-conferencing is also increasingly being used
for links with prisons. A successful pilot experiment between three
magistrates' courts and one Crown Court and their local prisons has
led to the facility being extended to magistrates' courts throughout
the country this year. This technology has also been used for some time
for the evidence of child witnesses, and foreign witnesses on fraud
cases. In July there may be quite a big extension in its use when different
forms of vulnerable and intimidated witnesses are permitted to give
evidence in a criminal court by video link.
Video evidence: the lack of immediacy
- Experience has shown, however, that unless the equipment is very good,
the evidence of a witness over a videolink does not have the same immediacy
as when the witness gives evidence in court. Some criminal judges believe
that juries have acquitted in cases where they might well have convicted
if they had actually seen the complainant child witness give evidence
from the witness-box. There is no doubt, however, that video technology
is here to stay for certain types of young or vulnerable witness, and
we must do our best to ensure that the technology used is as good as
possible.
Equipping the Judges
- Since January 1999 over 1,200 of our full-time judges have been equipped
with modern laptop computers and associated software. Three days' basic
training was also provided. Over half our judges are now using computers
in their daily work with increasing confidence. Over 1,000 have quite
regular access to our electronic conferencing system. One of the challenges
we now face is in helping all our judges use their equipment with equal
versatility. It has proved to be particularly valuable in providing
a means of instant advice to judges in remote areas who are confronted
with a tricky legal problem, no library facilities and a couple of lay
litigants in front of them who know no law.
Access to Human Rights judgments
- We faced a problem when the Human Rights Act was due to come into
force. There were not nearly enough copies of Strasbourg caselaw for
all the courts in England and Wales which were expected to apply it.
This led to the development of online services for judges by which they
could access the whole of the Strasbourg database from their laptop
computers. At the same time judges were also provided, through a contract
with Butterworths, with access to a great deal of Butterworths online
material. This included their statute law database and the All England
Law Reports, and access to the complete set of Law Reports going back
to the 1870s.
The value for outlying courts
- This service, too, is valuable for judges based at court centres with
poor library facilities. It is not easy for a judge to comply with his
duty not to violate the Human Rights Act when he has a litigant in person
on one side and an incompetent lawyer on the other, and no books at
the court where he is sitting. Applied technology is now available to
meet his needs.
Faster access to judgments
- Over the last few years a lot has been done to make it easier for
everyone to have speedier access to the judgments of the higher courts
as soon as they are handed down.
The House of Lords
- The House of Lords led the way in this. They created their own website
six years ago. Ever since then the speeches of the law lords have been
published electronically at about the same time as they are delivered
in the chamber of the House of Lords. They face an easier task, however,
because the law lords decide fewer than 100 cases each year, and arrangements
were already in place for their speeches to be printed and distributed
to the parties and those who want to read them. It was not a far step
from there to post them on a website.
Automatic strike-outs: chaos in the courts
- In 1997 we had more than a hundred appeals under Order 17 Rule 11
of the County Court Rules waiting for a hearing in the Court of Appeal.
This was a rule which provided that an action should be automatically
struck out if no request had been made for a hearing date within 15
months of the action being started. The rule was fine for simple actions
involving one plaintiff and one defendant and no pre-trial disputes,
but for anything much more complicated it led to chaos, because the
rule-makers simply hadn't thought things out properly.
Tackling the backlog
- I was a member of a three-judge division of the Court of Appeal which
was appointed for a seven-week period to get rid of this backlog. We
were given the services of a very able judicial assistant, and with
his help we looked at all the reported and unreported cases in the Court
of Appeal which had dealt with this rule already. We identified 70 different
points of dispute for which a solution had not yet been found. We then
decided to hear 21 of these in the first three weeks of our seven-week
stint, and we would then produce a single judgment designed to solve
as many of the unresolved problems as possible. We hoped that most of
the other cases in the queue would then settle when the parties could
see what the law was. The plan worked, and by the end of the seven weeks
we had cleared off all the appeals which were ready to be heard.
How to distribute a long judgment quickly in 1997
- I mention this because we had to find some means of letting everyone
have access to the first judgment as quickly as possible. The Court
Service website was then in its infancy, and we posted the judgment
on the web at the same time as we handed it down in court. But we knew
that in May 1997 none of the courts and very few lawyers' offices had
access to the web. We therefore had to direct that hard copies of this
long judgment should be sent to every civil court centre in the country,
for copying to all the judges at the centre, and to all the parties
to the appeals in the waiting list.
The value of rapid publication
- I don't know how much this exercise cost. Through modern eyes it was
a very inefficient way of doing things. But it did mean that from the
beginning of the following week no judge or deputy judge decided any
case involving an automatic strikeout without having our judgment available,
and the parties in the queue also had our judgment, too. There were
a few more unresolved points we had to decide during the following four
weeks, when we issued another much shorter judgment explaining all the
decisions we made in that four week period. That one was published on
the website too.
The printed reports followed later
- The All England Reports published both our judgments that September.
I remember being struck by the fact that they weren't published by the
official law reporters in the Weekly Law Reports, and then in a shortened
form, until long after the immediate crisis was over.
The inefficiency of our arrangements
- One of the reasons I have mentioned this was that this experience
showed both me and Lord Justice Saville (as he then was) just how inefficient
our arrangements were for letting everyone have access to important
judgments as fast as possible. Another is that it introduced me for
the first time to the work of the Australasian Legal Information Institute
(AustLII). If you read our judgment in Bannister v SGB plc you will
see that we refer to it with admiration at the start.
The Australasian Legal Information Institute (AustLII)
- The pioneering work of AustLII
was based at two Australian universities. AustLII was founded on the
principle that everyone should have access to the law of their country
free of charge. By the law of a country I mean not only statute law
and statutory instruments but also caselaw. If you visit the AustLII
database you will have immediate free access to masses of statutes and
to the judgments not only of the courts in Australia but also of important
tribunal jurisdictions. By the use of complex software large quantities
of new material can be integrated into the database very quickly by
automatic processes.
The English scene in 1997: a comparison
- In those days in England, we had to wait for a short summary of a
judgment in The Times law reports before we knew anything about a case.
We would then have to wait very much longer until the case was reported
in a printed report. Until this happened, a favoured few had access
to an unreported judgment because they were lucky enough to be involved
in the case. The judgment would then be scanned onto the firm's database,
or the chambers intranet system, and be available to those who had access
to those databases, but to nobody else. This seemed to me to be thoroughly
unfair. We were providing one facility for the rich, and another for
everyone else. It was also a very inefficient way of doing things, because
judges would be deciding cases in ignorance of decided Court of Appeal
authority already touching on the point. Appeals were therefore inevitable.
Publishing judgments on the Internet: some problems
- It has been a long struggle to get to where we are now. We have not
yet solved all the problems, because there are some types of judgments
over which private firms of transcribers own rights, and these we cannot
publish immediately. This state of affairs produced an odd result recently
when Lord Woolf gave an oral guideline judgment on sentences for robbery
involving mobile telephones. The Press and politicians were commenting
on his judgment without having access to the words he actually used.
If they had been able to read his judgment in full, they would have
expressed themselves differently. On the other hand, if he had delivered
a written judgment, nobody would have had any excuse for misrepresenting
him because the judgment would have been available to everybody on the
court website.
Some Solutions: formatting and neutral citations
- This is one matter in which I believe modern technology is capable
of producing great benefits. In recent years we have required all our
judgments to be produced in a standard format. We have also introduced
official neutral citations, so that it is easy to link a reference to
a judgment with the judgment itself. We have introduced paragraph numbering,
which makes it easy to find our way round judgments even if they are
drawn down from the web with different page numbering, because different
people use different formats and different font sizes. It also means
that if we add the words "at [51]" after the citation we will
not only provide a cross-link with the judgment itself if it is on the
same database. We will go straight to the passage in the judgment which
is being cited.
Judgments: rapid conversion for the Internet
- . Because all our judgments are now formatted the same way, through
the use of a common template, we can use a macro, devised by a member
of the Bar, to convert them automatically from the Word 97 word-processing
language to the hypertext mark-up language (html) which is needed when
a judgment is posted onto a website. Last year I watched the Court Service's
website team spending ten minutes manually picking away at the codes
of our judgments to make them easier to handle on a website. Now they
should be able to post them directly with no manual handling at all.
Networking the Royal Courts of Justice: the benefits
- This is important, because within the next five months the whole of
the Royal Courts of Justice will be networked, so that we can post all
our High Court judgments of any interest on the website just as easily
as we now post our Court of Appeal judgments. The quicker they can be
handled, the more useful the service will be.
The British and Irish Legal Information Institute (BAILII)
- In my spare time I am chairman of the trustees of BAILII,
the British and Irish Legal Information Institute. Lord Saville is another
of the trustees. Our ambition is the same as AustLII's, and we have
received generous help and advice from AustLII's directors, who have
allowed us to use their software. These are very early days. The pilot
site was started in Australia two years ago. Last year we had raised
enough money to appoint a full time member of staff to organised things
at the London end, and we have just advertised for a technical member
of staff who will be able to help with the process of transferring the
technology to England.
BAILII: The service expands
- Those of you who use the site will have seen that in recent months
we have been posting many more cases there. Once we have more staff,
we will be able to provide a much better service. We hope to add important
tribunal decisions as well, and many more judgments from courts like
the Administrative Court and the Commercial Court. I know how much this
service is appreciated by law centres and small firms who don't have
the resources to equip themselves with large libraries. It is also becoming
better known in the university world, and we are getting a lot of appreciative
letters from there, too.
Internet publication: the good side
- The good side of all this is that we are creating a level playing
field, and those of us who are interpreting the law in the higher courts
are being supplied with up to date copies of unreported judgments relevant
to the points we are deciding. This has been very valuable in these
early days of the Human Rights Act, where we have so much to learn from
each other. The law would be in chaos if our early decisions were being
made in ignorance of what another court had been saying on the same
point.
No artificial restrictions on publication
- As a matter of policy, we are determined not to place any artificial
restrictions on the availability of judgments. This has been happening
in the United States, where the policy has come in for a lot of criticism
from academics, who do not think judges should decide which of their
judgments should be published and which should not.
The bad side: information overload
- The bad side is that we often suffer from information overload. Cases
are cited to us which decide no new point of law, and which merely illustrate
the application of familiar law to a new set of facts. We published
a practice direction last year to try and bring things under some sort
of control, but very often lawyers can't recognise a principle of law
when they see one. We are getting steadily more and more overloaded
with citations of cases which frequently don't help us in the task we
have got to do, but which just add to the paper we have to read.
Judgments: Available to everyone
- Another great blessing of modern technology is that when we post an
important judgment on a website at the time we are handing it down in
court, we know that it will then be communicated electronically throughout
the country the same day to everyone who has a "need to know",
and this does not only mean lawyers.
Immediate access to the law for those who need it
- In the second half of last year I was involved with cases like Callery
v Gray and Sarwar v Alam, in which we were explaining the effect of the arrangements
for success fees and after the event insurance which have taken the
place of legal aid in personal injuries litigation. I was also involved
with Hatton v Sutherland, where we were concerned with liability for occupationally-induced
stress. On each occasion I know that our judgments were sent electronically
through a lot of different information networks on the day they were
delivered.
Access for the media
- This does not only mean that people immediately know what the law
is. It also means that press comment is more likely to be accurate,
because we are treating the Press like adults. We often publish a short
Press Notice the day before an important judgment is delivered, and
with the judgment we issue a short summary, or an index, to make it
easier for the Press to see what the judgment is all about.
The modernisation programme: a summary of progress
- As I have said, I am a member of the board which is driving this modernisation
forward. In the last Government spending review we were allocated more
than a hundred and sixty million pounds for the first stages of this
programme. In July, when the results of the next spending review are
announced, we will know how quickly we can take the programme forward
over the next three years.
Modernisation: the priorities
- The immediate priority is to install a networked IT infrastructure
into all our Crown Courts and up to 90 of our largest civil court centres.
The next priority is to choose, design and install the applications
software. With what money is left over in the current spending round
we could also extend the use of EPE and video-conferencing. There are
distinct possibilities, too, in digital audio recording. Trials of this
technology are being conducted this year in Crown Courts at Bournemouth,
Doncaster and Snaresbrook.
The management of change
- I began this lecture by describing the culture of the Bar in 1985.
Things have changed since then on both sides of the legal profession,
and nearly all our judges have been supplied with a modern laptop computer
and received basic training in its use. But is would be absurd to think
that many judges or lawyers year feel comfortable when using computers.
This is the great challenge of the next ten years. In the hand-out I
prepared for this evening I wrote about "training to meet the challenges
posed by resistance to change and the fear of the unknown".
The need for leadership
- When I went to a court technology conference in Baltimore last August
I learned that leadership is vital. In this country the leaders of the
Bar and the leaders of the solicitors' profession must understand why
this modernisation programme is so important, and must get this message
through to those they represent. So must the leaders of the different
agencies whose work impacts on the work of the courts - the Court Service,
the police service, the Crown Prosecution Service, the prison service
and so on. There will have to be investment in IT, to keep up with what
the courts will be requiring of those who use them. There will also
have to be investment in training and confidence building.
Privacy
- I know that people are anxious about privacy. If access to a court
file is available, it can be searched far more quickly and effectively
than a paper file. Some jurisdictions impose blanket bans on public
access to certain categories of electronic files: criminal cases and
family cases, for instance. In others, where the right to freedom of
information is better recognised, more sophisticated means are found
for trying to protect information on a file where there is a genuine
public interest in protection. In the early days I am sure that we will
be over-cautious.
Lay people and the information age
- Litigants in person also pose a major set of challenges. I know the
Court Service is endeavouring to build partnerships with advice agencies,
like the Citizens' Advice Bureaux to help to mitigate some of the problems
facing lay litigants in an electronic age. At Baltimore a black Harvard
law professor told is that the widespread use of IT may help the educated,
but it also tends to disadvantage still further those who are already
disadvantaged. I know that many judges are very worried about this.
One of the benefits of moving forward slowly is that we will be able
to spot where the problems lie in practice, and do our best to take
practical steps to resolve them.
Interesting times ahead
- We have travelled a long way since 1985. Over the next years the pace
of progress will accelerate. It is very difficult to see how tomorrow's
lawyers can succeed unless they feel comfortable with the use of computers.
If they do, they will be able to render a service to their clients in
a modernised court environment which will put into the shade the puny
efforts of my generation. But they must always remember that the practice
of the law is the practice of serving the needs of other people, and
serving their needs requires many human qualities over and above versatility
in using modern technology. Very interesting times lie ahead.
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URL: http://www.bailii.org/uk/other/speeches/2002/0FZSE.html