Ministry of Justice says that helping defendants navigate online courts will require specialist assistance
The Government will soon be looking for a network of “partner organisations” to work with HM Courts and Tribunals Service (HMCTS) in helping accused, witnesses and other parties navigate online courts and areas of the forthcoming digital justice system.
Responding to a consultation on the “transforming our justice system” programme announced last September, the Ministry of Justice has conceded that many users of a new process for dispensing criminal convictions and fines online will require help with digital channels if injustices are to be avoided. To the fury of the legal profession, it does not see the job as being one for legal aid lawyers.
The response, published late last week, sets out to tackle concerns about several proposals in the Transforming Our Justice System programme. It concedes that many participants in the debate are not persuaded by the Government’s claim that the programme will create a justice system that will be “faster and easier to use, with improved experiences for those who use it”.
Most controversial is the proposal for “automatic online conviction and statutory penalty” - a process by which people accused of minor criminal offences will be able to plead guilty and accept a fine entirely online. Critics have said the procedure is the first step down a slope that will lead to people being found guilty and “sentenced by algorithm” in a secret process which discourages suspects from fighting their case.
The Ministry of Justice itself admitted that conviction other than by a court “represents a significant departure for the criminal justice system”.
The Government proposes in the response that the system be tested with three non-imprisonable offences: railway fare evasion, tram fare evasion, and possession of an unlicensed fishing rod and line. According to the Government, 59% of respondents agreed in principle, 20% disagreed.
- Concerns about the lack of involvement by judges; for example to intervene in cases where there has been an obvious injustice.
- ‘Sentencing by algorithm’, with computer programs making decisions currently made by judges.
- The loss of defendants’ right to ‘have their day in court’ even for minor infractions.
All these points will be considered, the Government says. It stresses that: “Only defendants who choose to plead guilty, offer no mitigating circumstances and crucially, opt in to the automated process will be able to be prosecuted through this procedure.”
It also agrees that the procedure would not be appropriate for serious or repeat offenders.
On the risk to open justice, the response says: “We are currently developing a solution which will ensure that the principle of open justice is maintained as we move to digital channels. We will ensure that all interested parties, including victims, witnesses, the public and the press, will have access to case listings and outcomes where appropriate.”
To concerns by lawyers that a simple online procedure might encourage guilty pleas from people who do not understand the consequences of getting a criminal record, the response states that the process will involve a “decision tree”, requiring the user to accept that they have understood the information presented to them.
“We will support users throughout their journey," it says. "In particular, we will ensure that our assisted digital support takes into account the needs of those who are elderly or have disabilities, those with poor literacy or English skills, and those who lack access to technology because of cost or geography.”
Digital assistance for online justice “will be developed iteratively, with extensive input from service users”, it adds. “We will be procuring a network of partner organisations who will work with HM Courts and Tribunals Service to deliver face-to-face assisted digital services across the UK for users who do not have access to their own technology.
"These will be distributed across the country and we will ensure there is national coverage, even in rural areas. Paper channels will be maintained for people who need them, as necessary.”
It pledges: “Face to face assisted digital support will be free for the end user of the service.” Providers of face-to-face support will be procured through the Government Digital Service digital training and support framework.
The aim is to procure services “from a diverse range of suppliers”. The framework will allow scaling up or down our service requirements based on demand. “A team of HMCTS contract managers will be in place to monitor usage, management information data and service level agreements including quality.”
Tellingly, as well as unrepresented appellants and litigants, the ministry identifies “professional users” - lawyers - as a group for which assisted digital will need to cater.