2Digital justice processes
9.The court and tribunal reform programme includes development of a range of digital justice services that, according to HMCTS, “will help strip away the complexity and confusion that can get in the way of accessing our courts and tribunals system”, thereby increasing access to justice.12 Among the most important projects are Online Civil Money Claims (OCMC), currently for small claims under £10,000; online divorce and probate applications; continuous online resolution of social security appeals; and the Common Platform project, a digital infrastructure for the criminal courts that will be shared between the police, HMCTS and the Crown Prosecution Service (CPS) and designed to be accessible by other participants in the criminal justice system.
10.HMCTS and the senior judiciary have expressed some confidence and optimism about new online processes. The Master of the Rolls, Sir Terence Etherton, “an unapologetic enthusiast for digitisation”, told us “the public have voted with their feet” on Online Civil Money Claims (OCMC): since March 2018, 70,000 small claims had been voluntarily processed online with a satisfaction rate of just under 90%.13
11.Sir Terence emphasised, however, that OCMC was not an “online court”: if settlement is not achieved via the online process, disposal of the claim is still undertaken in a physical setting—although claims may be determined in future by video hearing.14 The Lord Chief Justice added that OCMC offered streamlined processes rather than only digitisation of existing processes; as with online insurance renewal, the OCMC system would block a claimant from moving on through the system if part of the online form had not been completed.15
12.In family proceedings, HMCTS has hailed as a success its new facility for unrepresented applicants to apply for a divorce online, citing digital uptake of 54%, a user satisfaction rate of 82%, and a significant reduction in return rates. It cited a comment from a service user, who had previously abandoned a paper divorce application several years ago after several rejections and who referred to experience with the online service as “marvellous, pain free.”16 Many witnesses also welcomed this innovation. As one of the first four firms in the pilot project for online divorce, the International Family Law Group argued that digital innovation was crucial for the future of family justice.17
13.The Senior President of Tribunals, Sir Ernest Ryder’s 2019/20 Innovation Plan summarises modernisation projects, several involving online processes, across tribunal jurisdictions.18 Appellants can already complete and submit Employment Support Allowance (ESA) and Personal Independence Payment (PIP) appeals online and upload supporting evidence. “Continuous online resolution” for these cases is in development, allowing parties to communicate digitally with the tribunal judge at the earliest stage of the case and resolve appeals online, where appropriate, without the need for a hearing. The judge will ask a series of structured questions until enough information has been gathered to go to a hearing or to issue a decision. However, the online process is not mandatory. Sir Ernest explained:
Our default position is that our users must be able to access justice by a method that is appropriate to their needs. However successful new digital process may be, some users will need to be able to take advantage of a paper process. We will provide new paper processes that reflect new digital processes.19
The Lord Chief Justice emphasised that no litigant in person would be forced to use digital processes in any court or tribunal. HMCTS gave the same assurance, explaining that its staff would scan paper “on the way in” so they can handle everything digitally.20
Views on digital justice processes
14.We heard support for the introduction of well designed digital services into courts and tribunals. Professor Richard Susskind argued that online courts that included “online judging” offered justice at a proportionate cost, so long as traditional hearings were available for complex cases and there remained a right of appeal to a physical court. He promoted the idea of “extended courts” that integrate guidance, advice and perhaps alternative dispute resolution to facilitate early settlement.21 The Bar Council of England and Wales thought that practitioners and clients welcomed practical changes such as “the removal of unnecessary hearings and the move away from an unwieldy and inefficient paper-based system in the civil courts in particular.”22 However, evidence from other witnesses made it clear that support was, for many, tempered by a good deal of caution.
Criminal justice
15.Penelope Gibbs from Transform Justice raised concerns about the impact of allowing defendants (from April 2018) to enter online pleas for some Single Justice Procedure (SJP) matters, including Transport for London fare evasion and TV licensing cases.23,24 She thought that any consequential changes in the proportion of guilty pleas should be researched, and questioned whether defendants making online pleas understood defences or mitigations that might be available to them or the implications of acquiring a criminal record.
16.Subject to legislation, the Government has longer-term plans to introduce automated online convictions, as a voluntary option for certain summary, non-imprisonable offences, such as fare evasion.25 Defendants who decide to plead guilty could opt into an automatic system that would issue an online conviction and take payment of a fine. This proposal came in for particular criticism from Fair Trials, a global criminal justice organisation, which argued that such a system would fall foul of the requirements of Article 6 of the European Convention of Human Rights (the right to a fair trial) because of the absence of effective judicial review of the conviction.26
17.Several witnesses commented on HMCTS proposals which would—again subject to legislation—permit defendants to indicate an advance plea online in more serious cases. The then President of the Queen’s Bench Division, Rt Hon Sir Brian Leveson, acknowledging that “defendants would require access to legal advice” before advance online pleas could be introduced, said that “[c]hanges would be needed to the way that legal aid is currently provided.”27 The Magistrates Association thought that individuals might indicate a plea without receiving appropriate legal advice, possibly failing to realise the seriousness of the case so that, if they misunderstood the process, they would be more likely to change their plea at a later stage, creating delays and losing the benefits of an early guilty plea.28 Transition to Adulthood argued that young adults were prone to make impulsive decisions instead of taking time to make a fully informed choice.29 Matt O’Brien from the Criminal Law Committee of Birmingham Law Society pointed out that a lack of opportunity to obtain advice before going online to complete the form could lead to:
people pleading guilty to offences to which they have a defence, or there is an alternative plea to a lesser charge that could have been canvassed, or they are pleading not guilty to matters where what they are advancing is mitigation.30
18.We received evidence expressing doubts about the scope and operation of the Common Platform, currently used in the Crown Court, referring to difficulties faced by unrepresented litigants in getting hard copies of electronic documents.31 It was pointed out that juries could not access electronic case files and had to be provided with printed copies or use police laptops to view documents electronically.32 HMCTS’s plans to extend the Common Platform to magistrates’ courts will inevitably be affected by the quality of WiFi available in courtrooms. Describing current WiFi as “wholly inadequate”, the Legal Committee of HM Council of District Judges (Magistrates’ Courts) told us:
This prevents papers being sent/received, often the CPS will have to stop in the middle of a case because they can no longer access their files … .and District Judges often cannot access their papers as the wi-fi has stopped working or is exceptionally slow. There is no evidence that HMCTS is addressing this issue.33
Civil justice
19.Some witnesses were worried about the implications for unrepresented litigants of the planned expansion of OCMC to claims up to the value of £25,000, because of the risk of adverse costs if the claim failed. Richard Miller from the Law Society said:
when you start to talk about making it much easier for litigants in person to issue proceedings above the small claims limit, you are significantly increasing the risk that people who are insufficiently advised will bring ill-advised proceedings.34
The Master of the Rolls assured us that, if and when the OCMC limit is increased to £25,000, the computer screen would carry a warning to claimants that they might be at risk of a costs order and would advise them to obtain legal advice if they had any concerns.35
Family justice
20.Frances Judd from the Family Law Bar Association and Jo Edwards from Resolution welcomed the introduction of online divorce applications, as well as the prospect of representatives being able to file applications and documents online in family law cases.36 However, Resolution said that its members were increasingly consulted by clients who had become confused when making online divorce applications. Inadequate signposting within the online tool was identified as a problem, particularly for applicants who have been victims of domestic abuse or who need to understand at an early stage the importance of addressing complex child arrangements or financial issues within the divorce process.37
21.We are not aware that the Ministry of Justice has set any management targets for processing divorces. Slow processing of divorce petitions, once issued, was raised as a concern. In a recent survey of Resolution members, 64% of respondents said that the processing time had become worse or much worse;38 Jo King JP confirmed that, citing HMCTS statistics.39 The Association of HM District Judges (representing 420 family and civil judges) said that regional divorce centres were unable to cope with the volume of work:
The delay to decree can be important as a final order in divorce money claims cannot be made until a decree has been obtained. Waiting times were significantly less when the work was spread across the whole of the courts with a family jurisdiction. This is a vivid example of centralisation making matters worse.40
22.We are concerned about delays in processing divorce petitions after the initial digital application, as this slows down parties’ ability to resolve arrangements for children and financial disputes. We recommend that HMCTS set and publish ambitious targets for divorce completion times.
Tribunals
23.Witnesses with experience of tribunals sometimes saw the complexity of the law as particularly problematic for digital processes. Wendy Rainbow, from IPSEA,41 described the law applicable to Special Educational Needs and Disability (SEND) tribunal cases as “immensely complicated for parents who are usually unrepresented trying to navigate the legal basis of their claim as well as the tribunal procedure.”42 Ken Butler, from Disability Rights UK, said:
social security is seen as just benefits, whereas it is one of the most complicated areas of law and is becoming increasingly complicated. […] Digitisation risks turning the process into a simplified one: “Thank you very much. Can we just ask you a few more questions online? Thank you very much; here’s our decision,” which is the complete opposite of seeing a face at an oral hearing.43
24.HMCTS has achieved some successes in developing user-friendly digital processes. However, our evidence raises important questions about accessibility and indicates potential barriers to access to justice, even for users who have good digital skills.
25.There are clear risks to fairness in inviting unrepresented defendants to enter pleas online in criminal cases. We recommend that this facility, should it be introduced, be restricted to defendants who have obtained legal advice and that the legal aid rules be changed to allow access to advice in all such cases.
Barriers to accessing digital services
26.HMCTS clearly has some way to go in reassuring stakeholders that barriers to accessing digital justice are being addressed. Witnesses commented on low rates of internet usage and poor digital skills, as well as literacy barriers and other disadvantages faced by particular groups.
Internet usage and digital skills
27.Statistics for 2019 on internet usage in the UK from the Office for National Statistics (ONS) demonstrate that 91% of adults in the UK were recent internet users, while 7.5% had never used it. Some 99% of adults aged 16 to 44 were recent users, but this fell to 47% of those aged 75 and over, and 78% for disabled adults.44 Professor Richard Susskind, who strongly supports the move to digital provision, suggested that, taking “proxy users” into account—for example, grandchildren assisting a grandparent—drops the percentage of adults excluded from the internet to below 5%.45
28.Other evidence suggested that statistics such as these did not present a sufficiently detailed picture of how individual users may fare in using new digital court and tribunal systems. The Equality and Human Rights Commission (EHRC) highlighted the 2018 UK Consumer Digital Index, which shows that 46% of those aged 65 and over did not have all the assessed digital skills: managing information, communicating, transacting, problem solving and creating (which includes completing online forms).46 A survey of face-to-face clients conducted by Citizens Advice in 2016 found that 46% lacked basic digital skills; only 61% had internet access in their home, with a further 11% having access only on a smartphone.47 Lisa Wintersteiger from Law for Life argued that both skills and the motivation to use them are necessary to navigate the internet.48 Amanda Finlay pointed out that people who are normally confident with digital interaction may be vulnerable when faced with a “justiciable issue” (that is, a problem that could be taken to a court or tribunal).49 The Magistrates Association observed that the justice system could not offer inducements for digital uptake without undermining the fundamental fairness of the system.50
29.Many of those who wrote to us question assumptions about levels of digital engagement and inclusion.51 Revolving Door Agency’s focus group research, commissioned by HMCTS in 2017, looked into the needs of digitally excluded and underserved populations, including: people with multiple and complex needs; women who had experienced domestic abuse; recipients of disability benefits; people who speak English as a second language; and older people living in care homes. The research identified a range of barriers to digital inclusion, including competence in using a computer (often a result of poor access to technology); communication barriers, including dealing with technical language and legal jargon; and psychological barriers relating to lack of trust between users and digital services and concerns about online privacy. Several participants in the research had experienced problems using the websites of public bodies and other agencies, such as “not knowing how to switch between pages, how to complete online forms […] as well as difficulties uploading pages and submitting information on time.”52
Literacy barriers
30.Revolving Doors Agency pointed out that 15% of the population are “functionally illiterate”—that is, they can understand short, straightforward texts but have difficulty reading information from unfamiliar sources or on unfamiliar topics. Other witnesses agreed that literacy issues were highly relevant to the question of digital inclusion, including Professor Richard Susskind;53 the Bonavero Institute of Human Rights;54 LawWorks/Litigant in Person Support Strategy;55 and a prisoner who pointed out that many women in prison did not have the most basic literacy or numeracy qualifications.56 Lisa Wintersteiger from Law for Life commented:
There is real concern about the idea that technology will move things along and everybody will be fine, as our young people are more equipped. That is not the case. We have 9 million adults who lack very basic numeracy and literacy skills. They cannot read the back of an aspirin bottle. Many of them are young people.57
The extent of literacy problems is illustrated by figures from the National Literacy Trust:
Figure 1: Rates of literacy in England and Wales
Source: National Literacy Trust
Access to technology
31.The reform programme may also affect access to justice for particular groups with limited access to technology. JUSTICE’s Preventing Digital Exclusion Working Party identified homeless people as a highly excluded group needing a specialised approach, as they often face barriers in accessing services that others might use, such as internet access in coffee shops. The JUSTICE Working Party recommended that HMCTS identify “trusted services” that might make their infrastructure available to homeless court users to allow them to get online.58
32.One magistrate noted, however, that her local Job Centre had reduced its number of available computers and that the library network was under threat.59 Libraries also do not offer private spaces people may need for legal work.60 In relation to those facing eviction from their home, Shelter observed that if someone has stopped paying their rent, it is also likely that they have been unable to afford a broadband bill.
33.Rising ownership of smartphone may imply that barriers to technology should not be exaggerated,61 but Sara Lomri from the Public Law Project told us that her organisation had clients “so poor that they cannot afford any data on their telephone.”62 Young Legal Aid Lawyers thought it indicative that the Universal Credit online journal system has proved difficult to use for low-income claimants who cannot afford internet access or smartphones.63
Disadvantaged and vulnerable groups
34.Conventional processes and face-to-face hearings may remain preferable for disadvantaged and vulnerable groups. The EHRC said that judges play an important role in identifying imbalances between the prosecution and the defendant in criminal cases—for example, where someone has learning difficulties or mental health issues. Difficulties in assessing the credibility of witnesses were a concern for the Public Law Project and others.64 Disability Rights UK noted that around 80% of welfare benefits appeals are made by disabled people challenging decisions relating to ESA or PIP appeals. In 2018, these appeals had a 72% success rate;65 some 90% of those hearings are conducted face to face.66 Based on its experience of representing clients at these appeals, the Free Representation Unit considered that a key factor is often “the ability of tribunal members to see the appellant in the flesh and to make their own assessment of the medical issues and the degree of functionality.”67 Law Works and Litigant in Person Support Strategy suggested that many claimants appealing ESA and PIP decisions have physical or mental health problems “which can impair their ability to use an online process effectively.”68
35.We heard it argued that people facing housing possession proceedings should not have cases dealt with online, or by video hearing. The Housing Law Practitioners Association (HLPA) said that such cases frequently involve vulnerable individuals; that housing law is complex; and that possession claims often have disputed evidence or defences raised only at the initial hearing. In addition, the Housing Possession Court Duty Scheme provides face-to-face assistance to defendants, as well as to the court itself, and could not realistically function online. HLPA also noted that, in the report of his review of the structure of civil courts, Lord Justice Briggs accepted that housing possession claims should be excluded from the Online Court that he was proposing.69 Hammersmith and Fulham Law Centre supported this view, pointing out that the removal of legal aid for early housing advice meant that more people are in crisis when they come to court.70
36.The Family Law Bar Association (FLBA) said that many parties and witnesses to family law cases are vulnerable and/or have limited financial resources. Echoing others, FLBA commented:
They may not have access to a computer, tablet or smartphone, or indeed to wifi. It is not unusual for [them to] ….lack the funds to pay for a bus fare to court or top up the credit on their pay-as-you-go mobile telephone. It is also common for parents to have difficulties with literacy or language, or indeed cognitive or psychological problems. All these issues can mean that participation in a digital hearing is extremely difficult if not impossible for them.
Women’s Aid was concerned that survivors of domestic abuse who use online justice systems would not be able to access support from the Citizens’ Advice witness service or the Personal Support Unit, notwithstanding £900,000 in extra Government funding recently awarded to these services.71
37.HMCTS has acknowledged the importance of building understanding of the needs of vulnerable and excluded groups. In its response to the PAC’s report, it explained that it has been working with the Revolving Doors Agency to develop awareness of barriers to digital participation among service users. The findings of this research have shown that assisted digital services may not be suitable for some users:
These findings have helped to inform the design of our services which offer users a choice of channels, including traditional paper-based methods of access to the courts and tribunals, so they can choose the one that is most suitable for their needs.72
38.Poor digital skills, limited access to technology, low levels of literacy and personal disadvantages experienced by particular groups create barriers to access to digital justice services. HMCTS has not taken sufficient steps to address the needs of vulnerable users, particularly as regards an absence of adequate legal advice and support.
39.We are concerned that some people contacting HMCTS about their court or tribunal case, particularly on pay-as-you-go mobile phones, may incur significant call charges that they cannot afford. We recommend that HMCTS establishes a Freephone service for members of the public, similar to the Freephone system for Universal Credit.
Overcoming digital exclusion
Parallel paper processes
40.HMCTS has promised that parallel paper processes will remain available to unrepresented court users—a commitment emphasised by three senior members of the judiciary. It is not entirely clear how users will be aware that they may still insist on paper-based processes. Sir Ernest Ryder said that post-pilot versions of the digital processes “[will tell] you that you can use a paper alternative and … .how to find it.” This appears to imply, however, that users will need to go online to find out that paper processes remain available to them.
41.Doubts have also been raised about how access to parallel paper processes will operate in practice. For example, Mrs Jo King JP commented:
litigants in person need to be able to submit evidence, receive court papers and request/respond to enquiries in non-digital environments. This may require equipment (printers in court) and amendments to processes, but these are not integrated in the new ways of working being proposed.73
Citizens Advice saw a risk of paper routes becoming a poor-quality alternative to the digital routes:
the paper process may prove to be slower due to the physical constraints of processing paper, but focus needs to be maintained on avoiding unnecessary divergence in services standards.74
42.We welcome HMCTS’s commitment to maintaining paper processes in parallel with new digitised justice processes but it is unclear how, in practice, users can obtain and complete necessary documents without using the internet or having access to a printer or the support of a legal adviser. We recommend that HMCTS make it clear how it will ensure that people can access court forms in paper format without using a computer to do so.
Assisted digital support
43.HMCTS has pledged to support digitally excluded groups by providing “assisted digital” support to members of the public (including unrepresented litigants) who have limited digital capability or digital access. Support will be given by means of web-chat, telephone and/or face-to-face engagement; the latter will be provided by the Good Things Foundation, a social change charity, which told us:
Good Things Foundation is working with HMCTS to pilot face-to-face Assisted Digital support for HMCTS customers. Online Centres who have signed up to be part of the pilot support individuals who lack digital skills, ability or access to provide access to a digital device, help people understand the HMCTS service they need to complete, understand the online guidance provided, help people navigate the online form and get to the point of completion.
44.The Foundation described itself as “working collaboratively” with HMCTS, using an open, design-led approach to the project, with a focus on testing and learning from service users and its community-based Online Centres; as of August 2019, the number of centres was expected to increase to 25.75 Insights from the pilot suggested that guidance is an important part of the assisted digital process, to help users understand “the service they are applying for and the legal process that this entails.” Experience gained so far also indicates that some people need assisted digital support even when they use the internet in their daily life “because the stakes are high when interacting with Government services.”
45.Several witnesses expressed doubts about the effectiveness of the assisted digital service. Citizens Advice suggested that it could create barriers to getting legal advice if it failed to address the risk of “referral fatigue”.76 It was also suggested that access to telephone support may involve people with pay-as-you-go mobile phones incurring high call costs; and that there had been poor feedback on the quality of the service itself.77 However, this was contradicted by Sir Ernest Ryder, who described the quality as being “very good.”78
46.Susan Acland-Hood, Chief Executive Officer of HMCTS, explained that call handlers spend a lot of time talking people through what they need to do to deal with court processes, and HMCTS was not “trying to force people who would rather use a paper process into assisted digital.”79
47.Assisted digital was designed for the relatively small group who want to use a digital service but for whom phone advice and support is not enough. However, uptake has been low: as of July 2019, the service had seen 98 people. Ms Acland-Hood accepted that more could be done to encourage its use. As well as extending the number of Online Centres, the service was making it easier for people to walk into the centres and get advice, “as opposed to getting a phone appointment from us when they ring us up.” The introduction of webchat and screen-sharing was planned as “part of the wider spectrum of support for people.”80
48.We also heard how tribunals were integrating support for appellants into their administrative infrastructure. Sir Ernest Ryder, the Senior President of Tribunals, explained the role of case officers in tribunals, who are:
authorised officers, working with judges at their delegation, helping people to construct their paper documents in a digital form. We have had that before in the Court of Appeal, with the deputy masters. We are now using it across all our tribunals in the reform process.81
Similarly, the Traffic Penalty Tribunal (TPT) told us that the introduction of its Fast Online Appeals Management System in 2016 “has freed up the TPT’s customer services team from routine administrative tasks … ..to offer enhanced Assisted Digital Support for those who need it—retaining a ‘human touch’ to complement the online system.”82 This allows the TPT to help appellants by “walking them through” the online appeal submission process, or by completing it on their behalf. Contact with the TPT customer services team is available throughout the process.
49.We welcome the intention behind the HMCTS assisted digital service but note that take-up so far has been low. We recommend that, by April 2021 the network of assisted digital Online Centres be extended to deliver comprehensive national coverage. Centres must provide walk-in access, and where possible be co-located with advice agencies to facilitate referral for legal advice and support.
50.We commend the initiatives within the tribunal system that have enabled tribunal staff to provide personalised support for applicants using digital processes and recommend that this standard of customer care be adopted within Court and Tribunal Service Centres.
Legal capability
51.Many witnesses mentioned the importance of legal capability, which Law for Life described as having three broad elements: knowledge, skills and confidence.83 The Bingham Centre saw legal capability as linked to equal access to justice, a key principle of the rule of law.84 According to the Law Centres Network, legal capability helps litigants “to assess their options and prospects and competently to conduct themselves against a legal adversary who is likely to be represented.”85 The distinction between digital capability and legal capability was highlighted in a research report by Catrina Denvir commissioned by the Civil Justice Council. She concluded that users undertake a range of activities online, but this is not to say that they have the capability to undertake legal processes online. Both digital capability and legal capability are likely to be needed to successfully navigate an online court.86
52.Research based on data from the 2010 and 2012 waves of the English and Welsh Civil and Social Justice Panel Survey (CSJPS) explored areas of legal capability including public understanding of law and legal services and how these relate to people’s experience of legal problems. The report described a “substantial knowledge deficit” in the public’s understanding of the law, and evidence that erroneous beliefs about the law are likely to prove stubborn to dislodge.87
53.Lisa Wintersteiger, Chief Executive of Law for Life, told us about barriers that those with low legal capability might experience when using online justice systems without legal advice:
We know that there is an enormous problem around legal information for the public. There are very low levels of legal capability in the public realm. People are now being asked to access an increasingly digital-by-default system with very low capacity and no access to lawyers, and are expected to navigate that system.88
She explained that legal capability ranged from having very basic knowledge of rights and procedures, through to knowing whether one could submit evidence or speak in court, and illustrated this point by stating that “lots of people do not understand that there is a civil justice system at all ….. [T]he vast majority of people would not know if there had been a breach of contract”.
54.The Senior President of Tribunals, Sir Ernest Ryder, accepted that there were “serious issues relating to legal capability”, an issue that the judiciary had to deal with daily to ensure access to justice for vulnerable users. He confirmed the judiciary’s commitment to reforming process and language for the benefit of ordinary users: “[y]ou change that process first, before you digitise it, as otherwise you end up ossifying a poor, ancient service that is not usable at the moment by litigants.”89
55.According to Lisa Wintersteiger, a wide range of support was required to address low legal capability; people might need somebody to sit alongside them and help them perform a basic task or more substantive assistance with a critically important life decision such as an application for divorce involving a financial settlement and arrangements for children.90 A similar view was expressed by Jodie Blackstock, from JUSTICE, who thought that two things had to be provided: online guidance integrated into online forms “to give people their own legal capability to understand the process”, and legal assistance, whether from an advice agency or a solicitor. This raised the question of how signposting to advice would be built into online systems.91
56.The role of legal advice in supporting users’ access to digital processes was emphasised by many witnesses, coupled with concerns about shortfalls in advice provision since legal aid changes were introduced by the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012.92 The then Secretary of State, Rt Hon David Gauke MP, accepted the importance of identifying the best way of signposting users to access the legal advice they need, and said that his Department was working with the advice sector to develop its signposting approach.
Public legal education
57.Public legal education has been defined as providing people with awareness, knowledge and understanding of rights and legal issues, together with the confidence and skills they need to deal with disputes and gain access to justice. It also helps people recognise when they may need support, what sort of advice is available, and how to go about getting it.93
58.The role of public legal education in supporting access to his proposed Online Court online was recognised by Lord Justice Briggs in his 2016 report on the structure of civil courts. He considered it would be “quite wrong” to think that support for users should be limited to online assistance and assisted digital services; in his view, the success of the new online court in extending access to justice would depend on progress being made with public legal education. He went on to suggest that reductions in the scope of legal aid had had a negative impact, because private lawyers were no longer able to provide legal education for those unable to afford it:
It is not therefore surprising that, now that Legal Aid has largely been withdrawn in relation to civil litigation, we are generally less well advanced in the provision of public legal education than some countries where there has never been Legal Aid at a comparable level.94
59.Support for public legal education also came from Law for Life among other witnesses.95 Research by its Advicenow project concluded that litigants in person needed to adopt attitudes such as objectivity and confidence and required information, to help them:
- understand the role of the court, and understand and follow process, legal language and the law;
- apply the law to their case and evaluate it;
- identify, obtain and fill in the correct form;
- develop skills, for example, preparing, filing and serving documents, engaging and negotiating with the other side, and speaking succinctly and confidently in court;
- know where to get more help and support.96
60.The Ministry of Justice action plan for legal support, published alongside the Post-Implementation Review of the LASPO Act 2012, recognises the role of legal information within the spectrum of legal support services, especially at the early stages of a legal problem.97 However, this appears to refer to providing information about specific legal problems rather than building a broader knowledge and understanding of legal rights and supporting legal confidence and skills. While the Government has committed to undertaking a pilot to explore how legal support can be better co-ordinated and signposted, its action plan does not specifically mention public legal education, or acknowledge any shortfall in the skills and attitudes that, according to our evidence, underpin legal literacy.
61.Digital literacy must not be confused with legal capability, which gives users the skills and confidence to deal with legal processes and helps them recognise when they need to seek legal advice; equally, the role of public legal education in supporting legal capability needs to be better understood. The Government must acknowledge the role of public legal education in building legal capability and should make a commitment to piloting public legal education within its action plan for legal support, with a view to rolling out a national programme by 2022.
13 Q262. It should be noted that the use of the OCMC is optional and that these satisfaction rates apply to users who have voluntarily engaged in the OCMC process.
14 Q263. In addition, there is a pilot for online resolution of disputes relating to claims under £300.
22 The Bar Council (CTS0058). See also Citizens Advice (CTS0016); JUSTICE (CTS0068); Ms Amanda Finlay (CTS0055); Richard Miller (Q90); Equality and Human Rights Commission (CTS0075); Resolution (CTS0051); Family Law Bar Association (CTS0042).
23 Under the Single Justice Procedure, introduced in April 2015, cases involving summary-only non-imprisonable charges are dealt with on the papers by a single magistrate sitting in private with a legal adviser.
24 According to the Lord Chief Justice of England and Wales (CTS0078), the response rate to SJP notices has increased from 16% to 23% over the period from April to November 2018
25 See Transforming our justice system: assisted digital strategy, automatic online conviction and statutorystandard penalty, and panel composition in tribunals: Government response. MoJ, February 2017
27 Lord Chief Justice of England and Wales (CTS0078), Annex 2. Criminal legal aid is subject to both a means test and an “interests of justice” test based on the merits and gravity of the case. Many cases tried in the magistrates’ court are deemed not to satisfy the interests of justice test.
31 Including Yorkshire Union of Law Societies (CTS0067); Lady Emma Arbuthnot (CTS0014); Leeds Law Society (CTS0011). Mr David Sarwar (CTS0002) referred to the challenges faced by some defendants in remembering the number that will enable their chosen solicitor to access the case information in the Common Platform.
37 Ms Amanda Finlay (CTS0055); Family Law Committee - Birmingham Law Society (CTS0034); Law for Life (CTS0047)
39 Mrs Jo King JP (CTS0025). In April to June 2019, the median time to Decree Nisi was 27 weeks and 41 weeks to Decree Absolute, each up 6 weeks compared to the same period in 2018. Source: Family Court Statistics Quarterly, England and Wales, April to June 2019. Ministry of Justice, September 2019
41 Independent Provider of Special Education Advice
44 https://www.ons.gov.uk/businessindustryandtrade/itandinternetindustry/bulletins/internetusers/2019
46 Equality and Human Rights Commission (CTS0075), referring to Consumer Digital Index 2018, Lloyds Bank
47 Digital capability: Understanding the digital needs of face-to-face clients of Citizens Advice. Citizens Advice, 2016
51 For example, Crown Prosecution Service (CTS0074); Magistrates` Leadership Executive (CTS0017); Mrs Jo King JP (CTS0025)
58 JUSTICE (CTS0068). See also Preventing Digital Exclusion from Online Justice: A Report of JUSTICE, April 2018
62 Q163. A similar point was made by Rhona Friedman, Sue James and Simon Mullings (CTS0085) in their joint submission
75 We understand that the increase to 25 centres went ahead as planned.
76 Citizens Advice (CTS0016). “Referral fatigue” can happen when someone seeking advice is signposted one or more times to another agency; each time this happens, the person is more likely to give up their quest for advice.
86 Assisted digital support for civil justice system users. Final research report prepared by Catrina Denvir for the Civil Justice Council. April 2018
87 How People Understand and Interact with the Law. Professor Pascoe Pleasence, Dr. Nigel J. Balmer and Dr. Catrina Denvir, 2015
92 For example, Bonavero Institute of Human Rights (CTS0024); Dr Peter Reed (CTS0082); Equality and Human Rights Commission (CTS0075); Free Representation Unit (CTS0080); The Bar Council (CTS0058)
93 See: Developing capable citizens: the role of public legal education. The report of the PLEAS Task Force July 2007
95 Including Professor Sue Prince (CTS0061) of Exeter University and The Transparency Project (CTS0021)
Published: 31 October 2019