A global effort to create online courts could end the injustice that denies the majority of people the protection of the law, the IT adviser to the lord chief justice of England and Wales says today.
In a new book, Online Courts and the Future of Justice, Professor Richard Susskind (pictured) cites OECD figures showing that 53% of the world's population are now active internet users – but only 46% can assert their rights in law. And, while access to the web is growing, access to justice is declining as legal costs rise and court waiting lists lengthen.
One of England's top judges, Lady Justice Thirlwall, warned this week of a growing backlog in the creaking court system. But the syndrome is global: in India, 30 million cases are waiting to be heard and in Brazil the backlog is 100 million.
Susskind's solution is the "extended online court", a web based facility through which the legally excluded – private citizens and small businesses – can resolve everyday civil claims such as debts and disputes with landlords.
He says the online court has two distinguishing features: judging is conducted remotely; and unlike today's justice system, it is set up to guide users – especially non-expert ones – through procedures. Features might include "assisted argument", to help parties without lawyers present their case.
One model could be British Columbia's Civil Resolution Tribunal, set up in 2012 initially to resolve low value condominium disputes in the Canadian province.
HMCTS experience
An online court is also a key part of HM Courts & Tribunals Service's £1 billion programme to modernise procedures in England and Wales. However, the programme has hit fierce opposition from lawyers and civil liberties groups, partly because of its attempt to move some proceedings, including criminal ones, online.
In this climate, Susskind admits, proponents of online justice have a tough time. "I am assailed almost daily by articulate and forceful judges and lawyers who snub online courts without any evidence of their operation in practice nor their purpose in principle," he says.
Much of his book is taken up with countering criticisms of the online court: for example, that it is merely a ploy to cut costs and that it will threaten due process.
Susskind vigorously rebuts one objection, that online courts threaten the principle of open justice. He argues that low value civil cases (and indeed many criminal cases) are in practice heard without an audience, with the outcomes unrecorded. Proceedings in an online court might be harder to follow on the spot, but digital records would be more accessible overall: "information", rather than "real time", transparency.
"It is strongly arguable that online courts are, in practice, more conducive to open justice than traditional, physical, courtrooms," he states.
Unfair comparisons
Susskind's central argument is that critics of online are making unfair comparisons: setting the online court's imperfections against an ideal – “the lord chief justice of England and Wales, sitting in Courtroom 4 of the Royal Courts of Justice on The Strand in London". Such critics are "romantic transcendentalists rather than pragmatic comparativists". The worst offenders, are lawyers - who, he suggests, have a vested interest in procedures rather than outcomes.
For the vast majority of people seeking redress, the system is broken. Susskind calls for "a global effort, dedicated to introducing online courts to countries that have great backlogs in their traditional court systems or severe access-to-justice problems".
Online judging, while open to criticism, "will be a much more affordable way of resolving disputes authoritatively, while the extended court facilities will help users assess and contain their disputes in ways that are simply not possible today."
