In 2018, Sir Ernest Ryder warned that the future shift to online dispute resolution for most, and in some areas all disputes, risks eroding judicial accountability and fostering a democratic deficit. The pandemic, the £1.3 billion court modernisation program and six years later, the future of resolving the majority of disputes online appears to be much closer. The implementation of a truly holistic Digital Justice System – an integrated system of online advice services, online public and private out-of-court dispute resolution services (mediation and arbitration portals, ombuds services) and online courts – can make this future a reality. In fact, it is expressly intended that the majority of civil, family, and tribunal disputes will be settled or resolved online through the Digital Justice System, in accordance with rules specifically developed by the Online Procedure Rule Committee (OPRC) to cover the online pre-action and action space. It is also notable that such a system of various online private and public portals will have a common data architecture based on the open digital standards developed by OPRC. It is not yet known when this system will become operational, but as we approach such a reality, the potential loss of accountability and democratic deficit needs to be addressed as an extremely urgent threat.

The blog therefore argues that we should urgently bring this potential ‘revolution in dispute resolution’ into the ongoing debates about rethinking judicial and justice system accountability in response to court digitalisation. Current discussions focus mainly on how to maintain judicial accountability through open justice in the increasingly online processes of traditional courts, but not in a fully online system. However, end-to-end online dispute resolution processes in the Digital Justice System are expected to provide accountability primarily through numerical court data. Accordingly, the blog emphasises that mechanisms of explanatory judicial accountability for digital justice may have to be significantly redesigned by grounding them in court data. The blog also looks at how justice systems may need to adapt by implementing organisational changes and developing new accountability practices. Given the scale of the changes required, they need to be considered as early as possible, while the design of the Digital Justice System is still crystallising. It is essential to assess the feasibility of ensuring that the Digital Justice System can be properly accountable and open prior to its implementation. Otherwise the Digital Justice System risks being delegitimised from the outset, further exacerbating ‘a not altogether happy picture of the current delivery of open justice’.

The current impact of digitalisation on judicial accountability and open justice

The court’s modernisation significantly affects core judicial values, including judicial accountability. In particular, digitalisation can promote judicial accountability, although greater public and media access to the courts has never been the primary consideration for modernisation (para 167). The use of digital technologies can positively impact the key elements of open justice – open hearings, publicly communicated evidence, media reporting and publicly available judgments. For example, broadcasting, livestreaming, and remote observations facilitate the publicity and scrutiny of courts, as many more people can see courts in action and assess the evidence provided. The online attendance of court hearings by members of the media and legal bloggers makes it possible to cover court hearings in areas that would otherwise be too remote. Digital court portals can also contribute to better reporting by streamlining media access to written court documents. Online publication and access to judgments provides the opportunity for greater accountability relating to how the law is being applied and the motives of the judges in reaching their decisions.

However, despite technology’s significant potential to promote judicial accountability, its actual positive impact remains limited. The development of the coherent legal frameworks and appropriate organisational arrangements needed to utilise the benefits of digitalisation is still very much a work in progress. The judicial approach to the practical application of technology is also being modernised. Lack of financial and human resources to maximise technology benefits is an ongoing issue (paras 38-40). These factors prevent the potential of the technology from being fully realised and will be no less relevant as we move to the next stage of digitalisation – the creation of a fully Digital Justice System. In fact, these and related challenges, such as supporting judicial accountability, are likely to become more difficult.

A truly holistic Digital Justice System

Faster and more cost-effective dispute resolution, often through online dispute resolution, is seen by the Lord Chancellor and Senior Judiciary as a vision for the future of the justice system. Over the past three years, the Master of the Rolls, Sir Geoffrey Vos, and the Deputy Head of Civil Justice, Lord Justice Colin Birss, have delivered a series of speeches detailing the vision of Digital Justice System for civil, family and tribunals cases in England and Wales (1, 2, 3, 4, 5, 6, 7, 8). It is claimed that the truly holistic Digital Justice System would integrate digitised non-court public and private dispute resolution services (e.g., ombuds services, mediation and arbitration portals), and online court portals created by the HMCTS Reform Programme. The declared aim is to enable citizens or companies to obtain early online legal advice (tier 1) on the best way to settle or resolve disputes out of court, including through online pre-action (public and private) dispute resolution services (tier 2). Disputes which are not resolved early and informally would progress to tier 3 of the Digital Justice System – online court-based adjudication. In this way, the Digital Justice System will deal with the vast majority of disputes, helping to clear the backlog in the courts and freeing up their resources to deal with the rest.

The timeline for the implementation of the Digital Justice System has not been made public, but efforts are already underway. The implementation of the System essentially depends on the work of the newly formed Online Procedure Rule Committee (OPRC). The OPRC has powers to establish rules for court-based and, even more importantly, pre-action online dispute resolution processes in civil, family and tribunals jurisdictions. In addition, the OPRC will seek to provide a set of open digital standards for a common data architecture of the Digital Justice System. Common standards will enable the coordination of various existing and future online non-court and court portals, similar to common “open banking” standards that enable the coordination of accounts and data across banks and non-bank financial institutions. Such coordination is crucial, as the whole design of the Digital Justice System rests on the premise that disputes and the related data can move online between the parts of the system through an application programming interface (API).

In a nutshell, the processes in the Digital Justice System are ‘aimed at fast solutions and resolutions’ online. Although online court processes may not work properly today, it is believed that further consistency in the underlying technology and proper design will enable swift consensual online dispute resolution or, where necessary, online adjudication. It is also argued that people are ‘voting with their feet’ in favour of such an approach, with data showing a gradual increase in the use of online court-based portals. This upward trend, together with the dismal statistics on the increasing timeliness of proceedings and the huge backlogs in traditional courts, suggests that the Digital Justice System may be better able to meet the access to justice needs of both citizens and businesses.

The debates about whether digital justice is an appropriate means of delivering fair outcomes are ongoing and will continue – this blog is not intended to enter those debates. The digital transformation of justice, within the framework of the Digital Justice System or other parameters, seems both sensible and reasonable in view of the objective (extensive digitalisation of states and societies) and subjective (structural problems of traditional courts) circumstances. This is also a future that is fast approaching, although the complexities and practices that already exist and are yet to emerge mean that change will take time to implement. It should be emphasised and borne in mind that in such a future an open trial in a physical courtroom, with oral debates on the merits of the case and the evidence and submissions communicated to the court, will be the exception rather than the rule. Therefore, the concepts of judicial accountability and open justice require new conceptual boundaries and practical ways of implementation.

Reconceptualisation of open justice and judicial accountability

The journey towards reconceptualising open justice and explanatory judicial accountability began shortly after the introduction of virtual trials and digital court processes. It became clear that the historical origins and principles of judicial accountability through open justice did not fit the digital environment. Ensuring open justice and avoiding a decline in judicial accountability with the increasing use of digital technology continues to be an issue of concern. It is fair to say that the problem is now in the spotlight of government attention – both the House of Commons Justice Committee and the Ministry of Justice inquiries are focusing on the impact of digitalisation on open justice as a fundamental principle of the justice system and as a mechanism of its accountability. The establishment of Transparency & Open Justice Board, the creation of a Senior Data Governance Panel, and the Civil Procedure Rules Committee’s consultations on non-party access to court documents also partially contribute to this endeavour.

The House of Commons Justice Committee’s report, the evidence submitted and the academic scholarship are replete with calls to urgently reconceptualise, rethink, reconsider, redefine, rebalance, redesign, recalibrate, re-imagine, reassess, remodel, reframe, or reconfigure the policy and practice of open justice in the digital age. Overall, most of the proposals call for a recalibration of open justice by extending its tenets to better access to data and information produced by the judicial process. It is sensibly concluded that, in the absence of public hearings or open court proceedings, access to 1) more detailed listings, 2) court documents (skeleton arguments, witness statements, transcripts), 3) audio/video recordings, and 4) statistical data (case-level and individual) can provide the public, media and academics with the relevant information. Suggestions also include various levels of access to information, including enhanced media access to written court documents of online proceedings or academic access to extensive, cross-sectoral statistical court data. The strengths, limitations and practicalities of these proposals, as well as the interventions needed to put them into practice, are profound and will hopefully be addressed by the Ministry of Justice consultations.

However, it is worth noting that most of the proposals were aimed at developing solutions that support open justice in the increasingly online processes of traditional courts, not in a fully online system. Therefore, it is crucial to evaluate existing and proposed mechanisms of judicial accountability through the prism of the potentially soon-to-be-created Digital Justice System. It is expected that the Digital Justice System will ensure its greater transparency and openness by producing more and better-quality data (paras 9 and 15). Indeed, the volume and granularity of data potentially generated by the Digital Justice System, can provide detailed information on its functioning, including data (currently mostly uncaptured) on legal advice and out-of-court resolution. But the technical ability to collect complex datasets does not guarantee that the resulting data will be publicly available, accessible or effective in holding the justice system to account and promoting its openness. Moreover, even if accessible and accurate, court data cannot speak for itself when it comes to ensuring public confidence and respect for the impartial and efficient administration of justice.

Thus, in order to operationalise court data as a primary mechanism of the Digital Justice System’s scrutiny, the Judiciary, the Ministry of Justice and HM Courts and Tribunals Service will likely have to adapt significantly by implementing appropriate accountability policies, practices, and organisational changes. First of all, it seems hardly possible to advance meaningful judicial accountability through data without cutting the Gordian Knot of court data governance (paras 3.14-3.16) by establishing a coherent framework and clearly delineating the roles of the responsible actors. It will be equally crucial to adopt or refine necessary court data policies (e.g., data sharing policies) and to implement relevant accountability practices (e.g., an open and comprehensive court data catalogue). The necessary practical arrangements for data collection and sharing will also need to be developed promptly, ideally once the OPRC has considered what data will be produced by the Digital Justice System.

Another key requirement for ensuring that court data is truly accessible and accurately informs public understanding is to improve institutional capacity in data analysis and reporting. As the volume of court data is set to increase significantly, more institutional resources will be needed for its meaningful analysis and smooth integration into judicial accountability mechanisms (e.g., reports, interviews, speeches, evidence to Parliamentary Committees). Additional efforts and investment in human resources (hiring more data specialists and training existing staff) will be also necessary to report court data in a clear and understandable way, given the current incomprehensibility of court data (p. 34) to the public. Data visualisation, data storytelling and accessible interactive data tools should be used routinely to facilitate public engagement with court data as a primary tool for scrutinising the Digital Justice System. As a step towards increasing public confidence, extra efforts may be needed to radically democratise access to court data, for example by marketing court data dashboards directly to court users and the public. It might also be worth allocating resources to establish a network of court data intermediaries – trained specialists within legal and dispute resolution service providers of the Digital Justice System – whose role would be to support laypeople, particularly digitally disadvantaged, to access and understand reported court data.

Concluding thoughts

The Lord Chancellor and the Senior Judiciary’s vision for the future of the justice system and the stakeholders’ proposals for supporting courts’ scrutiny allow us to hypothesise what judicial accountability might look like in the not-too-distant future. Judicial accountability will have several layers in a reality where the majority of disputes are settled and/or adjudicated online. Traditional public and media access to oral hearings in physical courtrooms, publicly communicated evidence and judgments will only be possible in limited cases that are complex or significant enough to be fully litigated. Alongside these traditional proceedings, the media will be able to examine some of the cases through access to more detailed listings and, possibly, written case-level court documents. For the rest of the disputes that are settled or resolved through online non-court and court-based portals, the Digital Justice System will mostly provide accountability through the provision of numerical court data.

The above projection is meant to facilitate a bird’s-eye view of the possible trajectory of judicial accountability resulting from the further development of fully digital dispute resolution pathways. While appreciating and supporting efforts to create more efficient and accessible justice through ‘integrated and intuitive digital dispute resolution environment’, it is worth considering the reform’s impact on judicial accountability. The digitalisation of justice and the consequent datafication of judicial accountability seems to be a shift of potentially far greater magnitude than the previous major grounds for the historical development of judicial accountability (e.g., increase in the substantive decision-making powers of the judiciary, the spread of New Public Management approaches to justice systems). With an understanding of how digital justice operates today and how it might look like in the near future, we need to focus on how to ensure robust judicial accountability in the Digital Justice System of Tomorrow.

I am very grateful to the editors of the UKCLA blog for their helpful comments on earlier drafts of this post. All errors remain my own.

Andrii Koshman, PhD researcher at the University of Bristol Law School

(Suggested citation: A. Koshman, ‘Judicial Accountability in the Digital Justice System of Tomorrow’, U.K. Const. L. Blog (3rd October 2024) (available at https://ukconstitutionallaw.org/)