Data collected from digital courts could be processed by artificial intelligence (AI) and used to improve access to justice by helping to prevent the kinds of activities that lead to litigation in the first place, according to one of the country’s top judges.
In a speech at the Society of Legal Scholars earlier this month, Sir Ernest Ryder, the Senior President of Tribunals, said people who might otherwise “absorb any actionable harm done to them” would be helped if information generated by the courts was used to boost preventative justice as well as remedial justice.
Focusing on remedies would improve access to justice, but the judiciary should also use data that would become available through digitisation in order to promote “primary compliance with the law” and therefore reduce maladministration.
Describing the new possibilities that were opening up, Sir Ernest said: “By digitising our court and tribunal processes, so that claims are fully managed online, we will have a wealth of information available to us, to an extent, and to a degree of ease of availability that we have never had before.”
He gave examples of two tribunals where the rate of successful appeal was so high it suggested decisions made with the benefit of better information would help the original decisions and obviate the need for litigation – although in both cases critics might argue the authorities in question used the cost of challenging the decisions as a deterrent, thus enabling cost savings to be made in the first instance.
In the first example, appeals to the Social Security and Child Support Tribunal for a decision on disability-related personal independence payments have a 73% chance of succeeding. This raised “a serious question about the quality of primary decision-making”, the judge said.
Meanwhile, an appeal to the Special Educational Needs Tribunal last year had an 89% chance of overturning decisions made by local government.
“These are vulnerable people often in crisis at the point that they come to us. So, if you ask me whether we can do things in a better way for them, the answer is, without doubt, yes we can,” he observed.
The judge continued: “We ought to be able through effective use of AI… to be able to identify trends… that might not be obvious to individual judges because they only deal with some cases; trends that may not be obvious to regulators, to Trading Standards, or even to government.
“We may be able to obtain information about areas where primary decision-making is not as it should be.”
Examples of where this could be effective, he said, might include information on where clinical negligence claims were arising, where consumer protection law was not being adhered to, compliance with private law, and the operation of ombudsman or regulatory schemes.
“We may be able to help to improve the very systems which harm people,” he suggested, using aggregated data gleaned from claims and appeals – shared after being anonymised.
Sir Ernest went on: “In itself this should produce a more proportionate, cost-effective and timely form of justice.
“It has the potential to reduce the cost to the state and individuals of having to appeal to the courts and tribunals…
“It means less of a need for individual remedial justice after an actionable harm has occurred.”
He said he had found enthusiasm for the approach both within government and among ombudsmen.
However, there was a key consequence of such an approach, summed up by the phrase “physician heal thyself”.
He explained: “Our data must itself be open to… independent scrutiny and evaluation. In that way we can be properly accountable, our justice system be properly accessible, and we will have a basis to ensure it is proportionate in its approach to the delivery of justice in all of its remedial, preventive and consensual senses.”