Registry Trust Consultation Response.
Introduction
Registry Trust are a key part of the data infrastructure which supports the UK economy and provides access to justice. Registry Trust operates the public Register of Judgments, Orders and Fines under contract to the Ministry of Justice. Registry Trust has successfully maintained and expanded the public Register, operating on an impartial and not for profit basis since 1985. Access to the Register of Judgments, Orders and Fines is open to all. Users and customers of the Register include individuals and small businesses who want information when they have been refused credit; small businesses who want to check potential clients; credit reference agencies who support lenders for the underwriting of debt, and making of informed credit decisions; employers who wish to check on present and potential employees; and the Insolvency Service prior to processing a petition for bankruptcy. The data is used by regulators, policy-makers, think tanks, economists, and people involved in due diligence across a number of different industries. We welcome the opportunity to comment on the Open Justice consultation.
Registry Trust consultation response – Open Justice – The Way Forward
1. Please explain what you think the principle of open justice means.
Simply that the majority of court proceedings, with exceptions made for specific circumstances, should be held in public. This principle serves to protect the rule of law and maintain public confidence in the judicial system. Open justice can be achieved through informing the public and allowing access; by holding those involved in the judicial system to account through public scrutiny; and by providing a sense of justice through sentences and outcomes. Public confidence in the system needs to be held in balance against an individual’s right to privacy.
2. Please explain whether you feel independent judicial powers are made clear to the public and any other views you have on these powers.
Registry Trust have no response to this question.
3. What is your view on how open and transparent the justice system currently is?
Registry Trust have been campaigning for a number of years to increase the transparency and user access to the justice system and the data contained therein.
Our campaigns are focused on the civil justice system, rather than the criminal justice system. Within the civil justice system, there is a public record of all details pertaining to a judgment – date, amount, name and address of the defendant etc. Yet the name of the claimant is not made available. Neither the courts service or Ministry of Justice has yet been able to clarify why this data has been omitted, and the general consensus seems to be that it was a result of human error or oversight when the relevant regulations came into force. That omission though has negative consequences for the transparency of the civil justice system, whereby a defendant may not know who has taken a judgment out against them. It also has far-reaching economic consequences for claimants, as a result of how the County Court Judgment (CCJ) data is used, in the formation of credit scores, and a factor in due diligence decisions taken across a number of industries. Providing clarity on the source of a judgment (parking fine; credit card debt; utility firm) would allow for more nuanced decision making, and better access to reputable credit for those affected.
4. How can we best continue to engage with the public and experts on the development and operation of open justice policy following the conclusion of this call for evidence?
Registry Trust look forward to seeing the outcomes of the call for evidence and proposed next steps to modernise the justice system. We welcome engagement with the courts and Ministry of Justice, and would be happy to share our experience of how the justice system could provide better, clearer information and ensure better access to justice. Registry Trust have a strong track record in helping HM Courts and Tribunals Service (HMCTS) educate their own internal teams, and in identifying improvements in their online communications. We’re also experienced in both managing data and bringing analysis of that data to life in plain and simple language.
5. Are there specific policy matters within open justice that we should prioritise engaging the public on?
Registry Trust have three ongoing campaigns, all of which serve the public interest. Claimant data, partial settlements, and satisfactions. Providing a one-stop shop source of all data relating to civil judgments would increase both the transparency and efficiency of the court service.
Providing claimant data would be of enormous public benefit, would be a change that worked to the detriment of no one, and moreover cost the courts and Ministry of Justice almost nothing to implement. There are very few, possibly even zero possible changes that could say the same. Strengthening the dataset, providing greater access to justice through agreement to support the campaign for partial settlements, and enabling clearer rules on the process and requirement to confirm Satisfactions when payments are received in full would all serve to improve this dataset, at minimal cost to the courts and maximum impact to the court users, and the overall justice system.
The Justice Data Matters report already covers the public attitude to better, more transparent data; and how court data should be used.
6. Do you find it helpful for court and tribunal lists to be published online and what do you use this information for?
Registry Trust do not use court and tribunal lists, therefore have no response to this question.
7. Do you think that there should be any restrictions on what information should be included in these published lists (for example, identifying all parties)?
Registry Trust have no response to this question.
8. Please explain whether you feel the way reporting restrictions are currently listed could be improved.
Registry Trust have no response to this question.
9. Are you planning to or are you actively developing new services or features based on access to the public court lists? If so, who are you providing it to and why are they interested in this data?
Registry Trust have no response to this question.
10. What services or features would you develop if media lists were made available (subject to appropriate licensing and any other agreements or arrangements deemed necessary by the Ministry of Justice) on the proviso that said services or features were for the sole use of accredited members of the media?
Registry Trust have no response to this question.
11. If media lists were available (subject to appropriate licensing and any other agreements or arrangements deemed necessary by the Ministry of Justice) for the use of third-party organisations to use and develop services or features as they see fit, how would you use this data, who would you provide it to, and why are they interested in this data?
Registry Trust have no response to this question.
12. Are you aware that the FaCT service helps you find the correct contact details to individual courts and tribunals?
Registry Trust have no response to this question.
13. Is there anything more that digital services such as FaCT could offer to help you access court and tribunals?
Registry Trust have no response to this question.
14. What are your overarching views of the benefits and risks of allowing for remote observation and livestreaming of open court proceedings and what could it be used for in future?
Registry Trust have no response to this question.
15. Do you think that all members of the public should be allowed to observe open court and tribunal hearings remotely?
Registry Trust have no response to this question.
16. Do you think that the media should be able to attend all open court proceedings remotely?
Registry Trust have no response to this question.
17. Do you think that all open court hearings should allow for livestreaming and remote observation? Would you exclude any types of court hearings from livestreaming and remote observations?
Registry Trust have no response to this question.
18. Would you impose restrictions on the reporting of court cases? If so, which cases and why?
Registry Trust have no response to this question.
19. Do you think that there are any types of buildings that would be particularly useful to make a designated livestreaming premises?
Registry Trust have no response to this question.
20. How could the process for gaining access to remotely observe a hearing be made easier for the public and media?
Registry Trust have no response to this question.
21. What do you think are the benefits to the public of broadcasting court proceedings?
Registry Trust have no response to this question.
22. Please detail the types of court proceedings you think should be broadcast and why this would be beneficial for the public? Are there any types of proceedings which should not be broadcast?
Registry Trust have no response to this question.
23. Do you think that there are any risks to broadcasting court proceedings?
Registry Trust have no response to this question.
24. What is your view on the 1925 ban on photography and the 1981 prohibition on sound recording in court and whether they are still fit for purpose in the modern age?
Are there other emerging technologies where we should consider our policy in relation to usage in court?
Registry Trust have no response to this question.
25. What do you think the government could do to enhance transparency of the SJP?
The justice system has longstanding issues around consistent and effective data collection and management. Poor record-keeping; poor response times to queries and inconsistent or fractured data collection are all recognised characteristics of the justice system. The effects are negative for court users of all types, and indeed for the effective administration of the justice system. The problems with data collection actively prevent a comprehensive understanding of how the justice system works and how it might be improved. The SJP, in addition to all other aspects of the justice system needs to collate and publish complete and timely statistics on how it is used. This would enable more effective decision making on how the justice system is run, as well as providing greater public transparency. It is vital to have straightforward, useful and usable information, in order to make better decisions.
26. How could the current publication of SJP cases (on CaTH) be enhanced?
Registry Trust have no response to this question.
27. In your experience, have the court judgments or tribunal decisions you need been publicly available online? Please give examples in your response.
Registry Trust maintain the Register of Judgments, Orders and Fines. We have been working with the court service to try and reduce their backlogs in both sending judgments through to us, and in rectifying errors when we return them to the courts. While improvements have been slow, it has been rewarding to see the change that this makes, including the availability of CCJs on the public Register. There are specific instances where Registry Trust are contacted by an individual or business asking why a judgment is appearing, or, less frequently, why it is not appearing. In the majority of cases we are able to help resolve the issue by speaking directly to the relevant court to find out what has happened with the judgment in question.
Over and above court backlogs, the main issue in obtaining court records has been that the records themselves are incomplete, because they do not have the claimant details available. The claimant name is of course, a matter of public record, as is the name of the defendant, yet the claimant name does not get sent out to Registry Trust. The jurisdiction of England and Wales is out of step with all other jurisdictions in this regard.
28. The government plans to consolidate court judgments and tribunal decisions currently published on other government sites into FCL, so that all judgments and decisions would be accessible on one service, available in machine-readable format and subject to FCL's licensing system. The other government sites would then be closed. Do you have any views regarding this?
Registry Trust are in favour of a one-stop shop style service regarding information, rather than users of the system being directed to multiple different access points. It is vital though to consider what kind of information needs to be added, and to make sure future decisions are not hampered by incomplete information sets being available.
29. The government is working towards publishing a complete record of court judgments and tribunal decisions. Which judgments or decisions would you most like to see published online that are not currently available? Which judgments or decisions should not be published online and only made available on request? Please explain why.
Registry Trust would like to see the CCJ dataset being completed by adding claimant data to the public Register. Claimant data is public data, yet is not made available due to an omission in the Regulations for Judgments, Orders and Fines which set out the information that should be provided. This omission means the CCJ dataset is incomplete – with ongoing negative consequences for individuals, regulators, policy makers, economists and researchers.
30. Besides court judgments and tribunal decisions, are there other court records that you think should be published online and/or available on request? If so, please explain how and why.
Registry Trust have run the public Register of Judgments, Orders and Fines since 1985. Our customer services team have oversight of the type of information that the general public, and occasionally firms and court staff, think we might have.
Over and above the ongoing requests for claimant data, or records of agreed settlements, following a CCJ, the typical queries we receive are if we publish records of insolvencies and bankruptcies; charging orders; arrestment of wages and marriages and divorce records.
As in our response to Q29, Registry Trust would support the publication of claimant data in addition to the remainder of the judgment dataset we currently have. We would also raise the issue of fines. Registry Trust were asked to start publishing fines data in the mid 2000s, and initially received this data. Since then, we have received no fines data from the courts service, and the last remaining fine on the public Register has now expired. Our understanding is that this is an issue with legacy systems used by the courts for processing fines.
31. In your opinion, how can the publication of judgments and decisions be improved to make them more accessible to users of assistive technologies and users with limited digital capability? Please give examples in your response.
Registry Trust have no response to this question, but would recommend completing an accessibility audit across the justice system to better understand user types and accessibility issues which may affect them. Our experience shows that accessibility barriers can be as diverse as language barriers; dyslexia; and visual impairment in addition to a simple failure to understand the importance and long-term impact of receiving a judgment.
32. In your experience has the publication of judgments or tribunal decisions had a negative effect on either court users or wider members of the public?
Registry Trust maintain the Register of Judgments, Orders and Fines, and have done so since 1985. The publication of county court judgments on the public Register is a key part of a data infrastructure that supports safe and sensible lending, as well as due diligence decisions taken at all levels, and across multiple industries, from insurance to foster care.
The omission of claimant data from published decisions has an ongoing negative impact on both individuals and policy makers.
Individuals are negatively impacted in that they are not able to speedily find out who they owe money to; individuals are not able to prove the type of debt to any future lenders, which may mean paying a higher rate of interest than would otherwise be decided on, because lenders do not have sight of the source of the judgment. It is logical that lenders would be more interested in lending to someone who received a CCJ for a parking fine, than they would to someone who received a CCJ for credit card debt. At the moment, those defendants are all grouped together, meaning nuanced lending is impossible. This only leads to consumer detriment and contributes to the wider issue of financial exclusion.
Policy makers are negatively impacted because they are unable to see the sources of problem debt within the UK; nor can they properly understand the impact of previous decisions being taken. Making claimant data public would swiftly rectify these issues, at no cost to the court service, but to considerable public benefit.
Court users (by which we mean legal professionals, and court staff) are indirectly negatively impacted by the omission, because they are shouldering the impact of handling and responding to all of the queries which relate to CCJ claimant data.
Registry Trust figures show this to be in the region of 200 queries a week. The court service is acknowledged to be under-resourced, and continuing to deal with backlogs of work – adding claimant data to the public Register would not only complete the dataset but would free up significant resource for court staff, allowing them to make effective inroads into backlogs of work.
33. What new services or features based on access to court judgments and tribunal decisions are you planning to develop or are you actively developing? Who is the target audience? (For example, lawyers, businesses, court users, other consumers).
Registry Trust are ready and able to take claimant data, and amend the public Register. This would simply complete the dataset, which is already used by lenders, underwriters, researchers, credit reference agencies, and of course, all of the individuals themselves. Registry Trust are not planning any new services or features based on being able to publish claimant data, but are cognisant of the many benefits of publishing such a dataset, allowing for better, more effective decision-making by policy makers and regulators, as well as improved understanding of the state and drivers of problem debt across the UK.
34. Do you use judgments from other territories in the development of your services/products? Please provide details.
Registry Trust have no response to this question.
35. After one year of operation, we are reviewing the Transactional Licence. In your experience, how has the Open Justice and/or the Transactional Licence supported or limited your ability to re-use court judgments or tribunal decisions. How does this compare to your experience before April 2022? Please give examples in your response.
Registry Trust have no response to this question.
36. When describing uses of the Transactional Licence, we use the term ‘computational analysis’. We have heard from stakeholders, however, that the term is too imprecise. What term(s) would you prefer? Please explain your response.
Registry Trust have no response to this question.
37. Have you searched for tribunal decisions online and if you have, what was your experience, and for what was your reason for searching?
Registry Trust have no response to this question.
38. Do you think tribunal decisions should appear in online search engines like Google?
Registry Trust have no response to this question.
39. What information is necessary for inclusion in a published decisions register? What safeguards would be necessary?
Registry Trust already operate a published decisions register for civil judgments – the public Register of Judgments, Orders and Fines. About (registry-trust.org.uk)
This Register is operated on a non-profit basis. We would be pleased to work with the Ministry of Justice and HMCTS to either assist with running a similar service for all other judgments and records, or to assist with the development of a similar service, including appropriate safeguards.
Lessons learned from Registry Trusts’ experience could be vital in ensuring the service provides good value for money; in addition to being a viable source of information.
40. Do you think that judicial sentencing remarks should be published online / made available on request? If that is the case, in which format do you consider they should be available? Please explain your answer.
A key principle of open justice and the UK justice system is that of transparency. To that end, a precis of sentencing remarks should be made available with the judgment record.
41. As a non-party to proceedings, for what purpose would you seek access to court or tribunal documents?
Registry Trust publish the records of County Court Judgments. CCJs, the granting of credit, and effective underwriting are all inextricably intertwined so we see interest from lenders, insurers and all those associated with due diligence enquiries from a number of different industries and sectors. We also respond to enquiries from regulators such as the Financial Conduct Authority (FCA), and think tanks, researchers and policy makers.
We would envisage that the publication of criminal judgments would also have levels of academic interest; regulatory interest; the security and fraud sector; as well as for individuals who want to perform due diligence checks on an individual level.
42. Do you (non-party) know when you should apply to the court or tribunal for access to documents and when you should apply to other organisations?
Registry Trust have no response to this question.
43. Do you (non-party) know where to look or who to contact to request access to court or tribunal documents?
Registry Trust have no response to this question.
44. Do you (non-party) know what types of court or tribunal documents are typically held? Registry Trust have no response to this question.
45. What are the main problems you (non-party) have encountered when seeking access to court or tribunal documents?
Registry Trust encounter problems when trying to speak to the civil and high courts, due to the length of time it takes to achieve a response. Phone calls often go unanswered, due to staffing issues at the courts, and e-mails are not responded to. When contact is made, the experience varies considerably, depending on the knowledge and experience of the court staff spoken to. The courts would need to be appropriately trained and resourced to handle both the publication of these judgments, and the scale and type of the questions. Registry Trust have run the public Register of Judgments, Orders and Fines since 1985, on a non-profit basis.
As such, we are well-placed to offer advice and assistance in the running of any new proposed Register. We have recent experience in assisting court staff with the training and education of their own teams, in addition to identifying improvements to be made in their online communications.
46. How can we clarify the rules and guidance for non-party requests to access material provided to the court or tribunal?
Registry Trust have no response to this question.
47. At a minimum, what material provided to the court by parties to proceedings should be accessible to non-parties?
At present, Registry Trust see the ongoing negative impacts of omitting data from a public dataset. Clearly consideration needs to be given to the type and level of information available in a public setting, but thought needs to be devoted to ensuring that the information provided is fit for purpose, and the requirements are flexible enough that changes can be made speedily if required.
48. How can we improve public access to court documents and strengthen the processes for accessing them across the jurisdictions?
Registry Trust are an exemplar of the model that could be used to allow simple straightforward access to justice in an efficient and low-cost way. We have operated since 1985, and publish the Register of Judgments, Orders and Fines, on a non-profit basis. The existence of Registry Trust relieves the Ministry of Justice from the burden of operating the Register, while simultaneously providing a valuable income stream to the Ministry of Justice. Registry Trust would be open to conversations with the Ministry of Justice to see if a similar service could be set up to fully support the criminal courts, again allowing for a reduction in costs and workload for the criminal courts, and allowing access to justice for the users of the court service.
49. Should there be different rules applied for requests by accredited news media, or for research and statistical purposes?
Registry Trust have no response to this question.
50. Sometimes non-party requests may be for multiple documents across many courts, how should we facilitate these types of requests and improve the bulk distribution of publicly accessible court documents?
Registry Trust are the perfect example of how this could be managed. We run the public Register of Judgments, Orders and Fines, which takes in judgment records from multiple courts, across England and Wales (in addition to other jurisdictions) and shares those records with both bulk enquirers and individuals. Registry Trust would be pleased to assist in the establishment of a new Register for the remainder of the justice system records.
51. For what purposes should data derived from the justice system be shared and reused by the public?
Data derived from the justice system could be used to benefit the general public in a number of ways, and at a number of levels.
Sharing data from the justice system would assist in supporting the principle of open justice, referred to earlier in the consultation. Registry Trust have long been campaigning around the need for better and more complete datasets leading to better decision-making.
County Court Judgments have value in the credit world because they are the outcome of a process involving both the judiciary and the decisions of lenders. They represent information of unique strength in the decision-making progress. Studies of judgments in Northern Ireland show that lenders account for only a third of judgments, the rest coming from the public sector and utilities. Lenders and credit reference agencies need assurance that the process behind such judgments is of equal validity. To understand what is happening in the market and maintain confidence it is essential to see trends in lender behaviour.
The potential macroeconomic value of the County Court Judgment claimant data is currently unavailable to researchers and policy makers. The macroeconomic risk associated with higher value commercial CCJs speak for themselves, but the problems behind those judgments can’t be tackled because without claimant data it is unknown which sectors are driving the rising volumes and values. Without claimant data, the only realistic conclusion to be drawn is that corporate UK is dealing with an increasing value and volume of debts where businesses have insufficient funds to pay: better information is sorely needed. Claimant data (in the jurisdictions where it is available) has already helped to identify important trends, such as the growth in claims from non-bank lenders, and debt purchasers.
Claimant data could improve the quality of commercial credit risk scorecards; at the moment CCJs are a blunt instrument - only providing genuine predictive value in a limited range of circumstances, such as relatively high value CCJs, or multiple CCJs in quick succession. Claimant data would considerably enhance the value of the CCJs in credit risk scorecards and sharpen up the process by identifying which CCJs were of the greatest significance, and which CCJs proposed very little trade credit risk. The upside would be fewer debtor companies with lower risk CCJs being declined trade credit.
In a number of major consumer sectors, firms are required to comply with minimum standards on how to treat customers fairly when in financial difficulty. Having access to claimant data would allow regulators to identify more accurately those firms which are actually treating financially vulnerable customers fairly - as opposed to claiming to do so. For example, the FCA could use claimant data to check whether banks have been treating borrowers in arrears fairly (providing forbearance etc) or are, in reality, very quick to take action against borrowers.
Claimant data would allow the FCA to identify which banks are most likely to take action and then check whether policies are robust enough. The same principle could apply to utilities and telecoms providers. This data could help OFGEM, OFWAT, and OFCOM protect vulnerable consumers more effectively.
Overall, there is little data visibility which would allow interested stakeholders to assess how well large firms are living up to corporate social responsibility obligations. As well as helping individuals rebuild credit profile more quickly (and therefore improve financial resilience), access to claimant data would help efforts to enhance corporate behaviour, improve consumer protection, and make markets work better.
52. How can we support access and the responsible re-use of data derived from the justice system?
It is vital to consider all of the user groups who might need access and why. Criminal justice data could be invaluable for re-offending prevention programmes; for sentencing guidelines; for academic study, focusing on social lessons to be learned from judgments and outcomes? Is there a chance for greater engagement with the justice system from demographics historically excluded from the environment? From an efficiency and accessibility point of view, better and complete data could be used to understand users of the courts; the challenges different sections of society have; the impact (positive or negative) of remote courts and online hearings. Data could also be used to understand areas in which the court are tangentially affected – i.e.: progress towards Net Zero.
53. Which types of data reuse should we be encouraging? Please provide examples.
Access to justice data for research and evaluation purposes should be allowed, not least of all to improve understanding and policy making in the public interest. In the event of concerns over judgment data being used for commercial purposes, HMCTS could create and apply a policy on what projects were considered to be serving the public good, which would then qualify for access to the data.
A complete catalogue of available data would enable HMCTS staff to fully understand what was available, in addition to external parties who might desire access. That catalogue would then enable partnerships with research bodies who were in associated relevant fields, i.e.: studying or researching in sociological or justice fields.
Government has been vocal about their desire to prevent knowledge and data silos. To that end, consideration should be given to areas in which justice data already links to other fields of research and understanding (i.e.: the economy) and those in which justice data might link in future (health). Other government departments should be involved at an early stage to ensure a fully connected data strategy across government. A clear strategy needs to be devised to ensure that opportunities are not missed, and that recommendations are implemented fully. The more complete the data available, the greater the potential long-term benefits.
HMCTS should consider collaboration with a trusted intermediary in this space who could publish aggregate anonymised data.
To this end, Registry Trust have been operating in this area, under contract to the Ministry of Justice since 1985. Our skills and experience are both unusual and invaluable, of immense importance to move this project forward. As an independent, non-profit organisation, we could continue to provide trust between the courts and external stakeholders, embracing the full scope of the justice system rather than simply the civil elements.
54. What is the biggest barrier to accessing data and enabling its reuse?
Barriers to data sharing are the slow pace of change; fear of consequences of data sharing; a lack of understanding on how that data might be used, and how that data might be ‘allowed’ to be used.
55. Do you have any evidence about common misconceptions of the use of data by third parties? Are there examples of how these can be mitigated?
The Justice Data Matters report, produced in July 2023 provides valuable information on some of the common misconceptions about justice data usage, including concerns on how that data might be used. Greater clarity on data usage, as well as the provision of a complete dataset would serve to improve transparency and the perception of transparency in users of the justice system. It is clear in the report that the general public who participated in the study felt that objective facts should be published, including the name of claimant and defendant. Study participants also referred to a lack of nuance from existing judgment data where it can be a blunt tool. This re-emphasises the need for claimant data which would enable users of that dataset to make their own decisions based on the full facts of the judgment in question.
56. Do you have evidence or experience to indicate how artificial intelligence (AI) is currently used in relation to justice data? Please use your own definition of the term.
Registry Trust have no specific experience or examples to highlight that we use.
We would urge caution in the use of, or promotion of AI within the justice system, in the current iteration. There are multiple case studies which prove the impact of systemic bias on policies and processes, outside of AI, ranging from medical treatment provided through to police activities and targets. Algorithmic bias is a very real threat. If the data on which an AI system is developed includes systemic bias, the effect will be that of racial profiling, and entrenching existing bias.
We should also recognise that currently there are no recognised national or international standards for data science. Setting standards would help to create user confidence in the use of algorithmic systems, notably in complex systems such as medicine or law. Standards should include clear guidelines for ethical use, transparency, and privacy.
Current general AI options are through the use of chatbots, where natural language processing enables the system to respond to user needs; addressing business problems, through using vast quantities of historical information and drawing conclusions; and use of AI in legal contexts to predict case outcomes.
AI usages that are specific to the legal setting are those of document analysis – the use of an AI tool that can analyse large swathes of documents, and pull out specific information; contract intelligence software which is already available – using machine learning to scan contracts and other legal document, which is then presented in a dashboard for users. Crucially this tool allows the users to understand the nuance and implications of legal terminology used and presents the information in an online dashboard which allows users to visualise risk. (https://www.thoughtriver.com/) ; AI legal advice support – already in use in the USA, the systems are asked questions in normal terminology. The system then checks the relevant law already stored in its system, gathers evidence, draws inferences and returns the relevant evidence-based answers. The same system also updates case law around the clock, enabling users to have access to the most up to date legal decisions.
Within the UK, there are researchers working on AI for case outcome predictions and public legal education. The latter is focused on helping ordinary people understand the legally complex problems associated with criminal offences in English and Welsh law, and to decide which available legal actions to pursue.
All of the above are negatively impacted where the quality of information available is insufficient or flawed. Legal systems are missing an opportunity to interrogate and address why AI tools return inaccurate advice in the first place. Done properly, AI could have the potential to expand access to legal advice to those unable to afford it. At this stage, however, there would be too many concerns about the quality of advice being returned to suggest anyone should rely on it for legal advice. We need to have a good understanding of why AI tools and systems provide inaccurate advice in the first place. Is it a dearth of relevant legal information? Inaccurate questioning or modelling on the part of the user?
The root of the problem could stem from the inability of the model to access sufficient relevant legal information. If legal information and case outcomes are not made fully available to everyone, then we will see a hierarchy of good/better/best AI tools developed, by and for those who already have access to legal information — private publishers, insurance companies and bulk litigants. This will only exacerbate and entrench existing inequalities. Selecting specific judgments to publish (in turn leading to ‘training’ of AI decisions/advice) will inevitably be limited, and create or perpetuate a level of bias within the AI. The Justice Data Matters paper highlighted similar concerns relating to the de facto creation of a two-tier justice system with those who cannot afford in-person legal advice provided with an AI model which perpetuates issues rather than resolving them.
Registry Trust recognise that it takes time and money to fund developments, and maintain systems, which needs to come from somewhere. The Registry Trust model is an exemplar of what can be achieved, in providing an independent and impartial service - providing public access to justice data at a minimal cost, via a non-profit organisation.
57. Government has published sector-agnostic advice in recent years on the use of AI. What guidance would you like to see provided specifically for the legal setting? In your view, should this be provided by government or legal services regulators?
Innovation remains in its early stages, but there seems to be a clear willingness to embrace technology and new developments to reduce costs, and improve efficiencies across the legal profession. Currently, AI lacks human intelligence, but areas in which we should expect to see increased usage of AI are insurance, mortgages, data protection, IP, criminal sentencing, privacy, surveillance, medical diagnosis, AI created contracts, currency/banking and legal research. Outside of the legal paperwork listed in the case types above, there are ethical and liability concerns to address. If robots powered by AI (e.g. self-driving vehicles or drones) are used, they raise the question of liability, ethics and accountability. Machine learning based systems are difficult to interrogate to understand the decision or outcome suggested at a key point in time. The legal profession will need to understand the changing face of business and markets and help their clients to understand, articulate and mitigate the risks.
A basic principle of justice is transparency – the requirement to explain and justify the reasons for a decision. This applies across almost all fields of decision-making, both in the public sphere and within organisations. Transparency creates challenges when AI is used, where the AI algorithms grow more advanced, and self-develop – making it harder to understand the decision reached.
Over and above the concerns on algorithmic bias referred to in Q.56, there is a need to balance the short term and long term interests. We would need to understand the objective of the system – would it be predicated to safeguard the short term interests, over those of future generations for example? Governance and liability concerns need to be understood and addressed in full. There is a natural assumption that AI systems should fully comply with the law. The challenge is in creating an AI system that can ‘explain’ itself.
Ethical concerns need to be addressed. There are often unintended consequences that result from the coming together of technology and humans. Usage of big data, cloud and autonomous systems pose important questions around security and privacy. We also need to recognise that the global nature and location of data centres and data sources means there may be limited control of the data usage or storage outside country borders. The ethics of AI and data uses remains a high concern and key topic for debate, but such debates should be tempered by the realities of systems or corporations that are subject to different legal systems, outside of the law of England and Wales.
Registry Trust would suggest that the legal services regulators are best-placed to understand and address the law-specific consequences and implications of usage of AI within legal firms, and the UK justice system.
58. Do you think the public has sufficient understanding of our justice system, including key issues such as contempt of court? Please explain the reasons for your answer.
Registry Trust currently only deal with civil judgments, so our experience is limited to the civil justice system. However, it is clear that the consumers and businesses we speak to are frustrated by the courts in general. The inconsistencies which apply in rules (judgments can be marked as set aside when paid in full, a calendar month after the date of judgment. But a calendar month could be 28 days, 30 days or 31 days); the inconsistencies between jurisdictions; the language used in court and justice communications; the difficulty in accessing decent inexpensive legal advice; the proliferation of online blogs and chatrooms all providing incomplete or inaccurate advice; the lack of diversity within the judiciary; these things all create misunderstanding and (potentially) suspicion. It also seems likely that, barring a need to engage with the justice system, or a specific academic interest, the majority of people do not feel the need to have an understanding of the justice system, simply an awareness and confidence that there IS a functioning justice system, which is accessible to all. The test would be how easy and straightforward people find the system to navigate when they are compelled by circumstances to do so.
59. Do you think the government are successful in making the public aware when new developments or processes are made in relation to the justice system?
Registry Trust have no response to this question.
60. What do you think are the main knowledge gaps in the public’s understanding of the justice system?
Knowledge gaps, or incorrect understanding is likely to stem from different socio-economic backgrounds, as well as lived experience. Lived experience is also likely to have a different view and understanding, depending on their status as victim or perpetrator; and indeed the type of crime involved, be it violent, or white collar etc. There will be gaps in understanding around sentencing; parole options and decision-making; access to legal aid; court terminology and the severity of measures; mitigating arguments; compensation for victims of crime; the time taken for a case to be heard; the roles of solicitor v barrister; magistrate courts v High Courts and so on.
61. Do you think there is currently sufficient information available to help the public navigate the justice system/seek justice?
Over and above a dearth of accessible, reliable information relating to the justice system, there are significant case backlogs which need urgent attention. The state of court buildings themselves are often in need of repair, posing safety concerns to all users. Not all court buildings are accessible – either for those who are disabled, or simply for those who rely on public transport to attend.
Access to legal aid is significantly reduced, and recruitment of judges and magistrates to hear the cases when they do get to court is low. There is an increase in the number of unrepresented litigants, which means the process becomes slower.
HMCTS have introduced a signposting strategy recently, with the aim of directing users to the help and advice they need. The principles are those of providing a minimum and consistent standard; effective signposting by staff; a signposting culture, with empowered staff; and the continual improvement of that service. It is too early to understand the effects of this service, but the mere fact of its introduction indicates that HMCTS agree that there is not sufficient information available to help the public navigate the justice system. Of concern would be the growth of AI, and ‘lawbots’ which may provide incomplete or incorrect advice, and the cohort of the general public who will rely on family and friends for advice.
62. Do you think there is a role for digital technologies in supporting PLE to help people understand and resolve their legal disputes? Please explain your answer.
There is already a role for digital technology, in the online dispute resolution space. This is not without risk or flaws though. The potential benefits are the removal of the requirement for a conventional court, or face to face process. Using AI could speed up case assessments; assist with the start of a mediation process and provide background support on historic case law and precedent. What AI/Online Dispute Resolution will not do is provide the human judgement element. Contextual understanding can be key to a number of cases, and this is not something that can be provided using AI/ODR services. Conflicts relating to cultural, social or emotional differences will simply not be understood. The challenges in inherent systemic bias also need to be addressed properly.
Where AI and ODR could add demonstrable value is in the automation of procedures – allowing for online evaluation, electronic filing, virtual hearings, and safe online evidence submission.
63. Do you think the government is best placed to increase knowledge around the justice system? Please explain the reasons for your answer.
The court service should be best placed to increase knowledge of the justice system. They should work in tandem with stakeholders to understand knowledge gaps, and how best to address those gaps including appropriate messaging tone and medium.
Where The Government could be well-placed to assist is in ensuring proposed changes are made swiftly and promptly. To this end, Registry Trust can provide an example. In 2020, we highlighted two errors in court tribunal forms. The errors were that the incorrect Data Protection Act was quoted (2008 instead of 2018); and the form indicated that the paperwork needed could only be sent by post, instead of being accepted by e-mail, as was already commonplace.
To date (Aug 2023), despite numerous e-mails, phone calls and commitments that the matter was ‘with a director for sign-off’, these changes have not been made. To reiterate, the changes are basic – to add an e-mail address to a form, and to refer to the correct Data Protection Act.
64. Who else do you think can help to increase knowledge of the justice system?
There is a role here for both the educational establishment, particularly at advanced senior level, and for schemes like apprenticeships in enhancing understanding of our justice system through education and entry-level engagement. Legal regulators or stakeholders, like the Solicitors Regulation Authority and the Law Society could also continue their own outreach programmes to enhance understanding more generally.
65. Which methods do you feel are most effective for increasing public knowledge of the justice system e.g., government campaigns, the school curriculum, court and tribunal open days etc.?
Providing people with general information about sentencing guidelines should serve to improve confidence in, and knowledge of the fairness of sentencing. Communications could also use story-telling, anonymised where required to provide context and decisions taken and encourage engagement with sentencing and the justice system. Communications could and should be tailored and targeted to address areas of misconception of gaps in understanding that affect different demographics more than others. Overall, enlisting the support of the media could do a great deal to improve knowledge and understanding of the justice system. News engagement will vary from area to area, and consideration should also be given to use of social media channels, as well as local and regional publications. Five key audiences were identified for targeted communications, as well as the specific media channels and messaging most likely to gain traction among each of them.