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Law Society still wary of MoJ’s digital court reforms

Chancery Lane remains concerned over lack of safeguards for vulnerable people

10 February 2017

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The Law Society has described the Ministry of Justice’s response to a consultation on transforming the justice system as ‘woolly’ and called for more detail on its proposals.

Last September, the ministry published a ‘vision paper’ on its plans to ‘go digital’, which included automatic online convictions for minor crimes such as fines for TV license evasion and dodging transport fares.

Chancery Lane was one of 790 respondents to a consultation on the ministry’s planned reforms and, together with other legal stakeholders, voiced concerns on a host of issues.

The president of the Law Society, Robert Bourns, said: ‘While there are some positive indications in parts of the MoJ’s response to the consultation there simply isn’t enough information and as always, the devil is in the detail.’

One of the concerns raised by respondents was the difficulties users may face online. In response, the MoJ said the online procedure was ‘entirely voluntary’ and the use of digital channels would not be mandated. Rather, a range of options would be available for those who did wish to engage such as the telephone or web chat.

Elsewhere respondents were receptive to the principle of a statutory standard penalty process that would bring better efficiency. However, some raised concerns over the lack of judicial involvement in the procedure and the possibility of ‘sentencing by algorithm’.

The MoJ rejected this notion and said primary legislation will limit online convictions to specified summary, non-imprisonable offences only. These would be specified in secondary legislation. Only defendants who choose to plead guilty, offer no mitigating circumstances, and opt in to the automated process could be prosecuted through this procedure.

Bourns also condemned the proposal that government should have the power to add offences that can be dealt with in this way via secondary legislation. ‘We believe that this is an inadequate safeguard for what could be a fundamental change in the nature of cases put through this process.’

The ministry pledged to develop the assisted digital approach iteratively, with extensive input from service users. ‘We will carry out piloting, user research and testing across the digital skills spectrum to make sure that our services meet the needs of our users, and continue to be improved following their launch.’

The Law Society said it had no objection in principle to the concept of online convictions but is concerned that the offences recommended for an online pilot programme will be few in number and not provide an adequate test for the system’s robustness.

The MoJ also had to rebuff concerns that digitising HMCTS systems could reduce users’ access to legal advice or representation, stating that ‘assisted digital’ would help unrepresented appellants and litigants in person. Users would still have the same opportunities to seek legal help but would not be provided with legal assistance, the ministry added.

On a similar note, issue was taken over the risk to some vulnerable users who may fear the prospect of attending court and so plead guilty, even if they are innocent or have mitigating circumstances.

The MoJ said its system will safeguard vulnerable people by presenting all the relevant evidence against them provided by the prosecutor when considering whether to choose the automatic online conviction procedure. The potential consequences of a criminal conviction, such as the disclosure regime, will be clearly explained.

‘While the MoJ has said the system will be designed to prevent users pleading guilty without a full understanding of their decision and potential consequences, we will need to see more information about these vital safeguards,’ said Bourns. ‘It depends on how the information is presented to the defendant and how they can exit the process if they decide they want their case heard in court.’

Matthew Rogers is a reporter at Solicitors Journal

matthew.rogers@solicitorsjournal.co.uk | @lex_progress

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