Rozenberg QC on the Online Court – A Review

Joshua Rozenberg QC is an English journalist and commentator on matters legal. I have read his articles and commentaries now for some time. He is thoughtful and balanced, unafraid to call it as he sees it. He practiced as a barrister before moving into journalism and was appointed honorary Queens Counsel for his work as the “pre-eminent legal analyst or modern times.”

So it was that I saw a reference to his monograph entitled “The Online Court – will it work?” on his Facebook page. Rozenberg conceded that it was too long for any of his normal outlets to publish but this piece was available for download from Amazon. He hastened to point out that although much of his work is available at no charge the essay was not commissioned, sponsored nor supported by advertising so a small charge of £1.99 was levied at the UK Amazon store and $US2.49 at Amazon.com. A reasonable fee under the circumstances. Just one problem. The essay was available only to UK customers.

I have written before about the bizarre practice of geoblocking in an on-line borderless world. My earlier encounters with this loathsome practice have been in attempts to purchase software and video content. The physical product isn’t a problem. A proxy forwarding address in the US or UK solves most difficulties. However, additional issues arise when one is dealing solely with digital content. Without an English address, obtaining the content seems nigh impossible. What I cannot understand is why Amazon would want to restrict distribution in this way. After all, place doesn’t matter in the delivery of online content. No greater delivery or packaging costs are incurred. No explanation is given for restricting distribution.

However, that said, Rozenberg’s essay makes fascinating reading. He opens his discussion with the background to the current reforms starting with early attempts which were not very successful because they were not judge-led – indeed an essential requirement in any proposed reform of the Courts process. After all, next to Court staff Judges are the principal users of the Court system. Furthermore, when I talk about “Judge-led” I don’t mean that judges should be kept informed about what the IT people are doing, but that the judges actively lead the process. This was enabled in England by the formation of the Judicial Office which was set up in 2006 under leadership of the Lord Chief Justice. The development of a single courts service further assisted. Rozenberg sets out the way in which the current judicial leadership role came to be in a helpful overview.

He then passes on to cover the reform programme of Her Majesty’s Courts Service (HMCTS) and the three strands of work suggested by Lord Justice Briggs

  • The use of modern IT
  • Less reliance on Court buildings
  • The allocation of some work done by Judges to case lawyers

The allocation of funding in 2014 has remained in place, an achievement Rozenberg attributes to the influence of the Lord Chief Justice, Lord Thomas of Cwmgiedd.

Rozenberg then goes on to summaries the various projects, numbering in total 21, some of which, like the eJudiciary service, are already up and running. For those of us looking at the English IT reforms from the outside, this is an invaluable snapshot of where things are and where it is hoped they may go. Most of the publicity that one sees about the reforms focus upon the Online Court proposals but Rozenberg makes it clear that this is only a part of the story. I was impressed with the scope of the proposals. I was familiar with the eJudiciary service, having had it demonstrated to me by His Honour Judge John Tanzer in 2015. I was also familiar with the Rolls project but other elements were new.

Rozenberg then passes to deal with the online court which is probably the most revolutionary proposal.  He covers the initial proposals by Professor Richard Susskind and Lord Justice Briggs. The Online Court involves the innovative use of technology. Two paths were available. One was to use technology to imitate the existing system. This would merely be a digital replication of a system that would be recognisable to William Garrow or Charles Dickens. Digital technologies allow for disruptive change. Disruption in and of itself cannot be seen to be an end. But transformation by means of disruption, especially if that transformation improves, in this case, just outcomes is to be applauded.

The Susskind and Briggs proposals change the emphasis of the Court process. In the past, the process has been geared towards getting the case before the Court. That can be somewhat complex and that complexity will invariably involve the participation of lawyers, assisting the litigants through the procedural shoals to a hearing.

The online process is geared towards introducing the possibility of resolution from the very beginning. At all stages of the process resolution is the objective, rather than waiting for the judge to resolve the matter. This the various stages of the process offer opportunities for resolution, rather than being milestones that have to be passed on the way to a hearing.

The issue that has given cause for concern is that lawyers are not seen as essential to the process. Rozenberg covers this real area of concern by pointing out that lawyers will have a different role in the process, rather than being excluded from it all together. The use of an App will assist litigants although there is nothing to prevent a litigant seeking legal assistance or advice. But one of the objectives of the new process is to improve access to justice and if that can be achieved it will be a significant accomplishment and a validation of the use of IT.

Rozenberg examines the feasibility of the system uner the ambiguous heading “Will IT work”. There are two questions posed here. Will I(nformation)T(echnology) work which puts the focus upon the way in which the IT projects are put together. Or will IT (the big strategic plan) work. It is the first question that Rozenberg attempts to answer although, because the projects are IT dependent the answer to one will answer the other.

Rozenberg ends on a cautious note, stating, correctly in my view, that digitising the courts is the biggest challenge to the judicial system in 150 years and it is a reform that must not fail, if the restoration and maintenance of access to justice for those who need it most is to take place.

The essay or publication is an excellent example of the enabling power of technology. A close examination of highly significant and innovative approaches to the justice system by England’s leading legal commentator adds to informed debate. Rozenberg is to be congratulated for taking the initiative to put the information on line. It is a pity that Amazon’s policies limit its accessibility.

But for me the essay was extremely valuable in that it provides meaningful context to the on-line court – an innovation in which I have been very interested since I met and spoke with Professor Susskind about it in May of last year. That broader view, and the scope of the IT projects that are in train for the English system give added weight to Rozenberg’s conclusion. It is clearly written, as one would expect, well worth the £1.99 from Amazon and valuable assessment of the state of English Courts IT at the cross roads.

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