I wrote this review of ‘Online courts & the future of justice‘ by Richard Susskind before the coronavirus turned into a pandemic that has totally disrupted normal life in this country – and in the process, trashed the government’s spending plans for (probably) years to come. I make the point in this book review that the Justice system has always suffered from under-investment but in the new normal we now live in, we can safely assume there will be even less money to be spent on online courts and judicial technology…
Susskind: the Marmite man
The difficulty of writing a review of any Richard Susskind book is you know you are dealing with a Marmite man people either love or hate. Half your audience are inwardly groaning ‘Oh no, he’s not still banging on about the same subject he’s been going on about since The Future of Law in 1996?’ (Yes, he is.) While the other half – the Susskindistas – regard him as a guru of almost mythical proportions and would rush to attend one of his lectures even if he was just reading the contents of a telephone directory.
My issue with Susskind – and it is one I have consistently held for the best part of a quarter century – is that while his books are full of well meaning hopes and aspirations (Susskind is the ultimate ‘conversation starter’ to borrow a tag from Facebook) there is a disconnect between them and the real world the rest of us live in.
Quite simply the problem with the Justice system (in probably every country on the planet) is money. It is starved of cash so we don’t have enough courts, we don’t have enough judges, and we don’t have enough money to fund a decent legal aid systems so citizens can afford to access the justice system. Of course we could have more money if we paid more taxes – but no politician is ever going to run for election on a platform of ‘more taxes, for more judges’.
People have priorities and for most people ‘law’ is a distress purchase you only buy in an emergency – and that you also sincerely hope you will never actually need.
Indeed, with the exception of conveyancing charges, a lot of people actually do manage to get through life without ever having to cross a solicitor’s doorstep or enter a court. What people can’t do without are health services – you can’t hope you won’t get sick – education, and public transport. If individuals are going to pay more in taxes, then they’d rather the money went on doctors, schools and trains that ran on time.
This brings us to the first big flaw in Susskind’s book – which puts forward a well argued case for how technology and online courts might deliver a better and more accessible justice system – is that if there is not enough money to keep the conventional courts system going (legal aid and all that) then where is all the money to come from to fund this new futuristic infrastructure? In the real world there are no magic money trees.
It is also worth pointing out that, in England and Wales at least, the Ministry of Justice has one of the worst track records of any government department when it comes to failed technology projects, in terms of them being delivered late, over budget or not at all. As someone who has held the post of Technology Adviser to the Lord Chief Justice of England & Wales for over twenty years, this is something he must be aware of.
My concern is that if a government ever did green-light a massive online courts initiative, the MoJ would make a total mess of it – and in the process waste yet more taxpayers’ money that could have been used to throw the creaking legal aid system a life raft.
The tech concerns
Turning to the technologies cited in the book, all the usual suspects are cited but without addressing the fact that most of them are imperfect – or at least not something you would want to base a justice system around.
For example, eBay’s online dispute resolution system is cited as one approach. But the eBay system is Stalinist in that it penalises the honest who have no choice if they want to remain users of eBay, but is ineffectual against the dishonest, who simply vanish into cyberspace only to pop up later with a fresh fake identity.
As for AI/artificial intelligence (or at least machine learning because we do not have true AI yet) this is already proving to be a civil liberties nightmare. For example, just check out the experience of the US state of Kentucky which in 2011 mandated a risk assessment algorithm to help determine whether suspects awaiting trial should be remanded in custody or granted bail. Following the introduction of the system there was a big jump in the number of white people being granted bail but virtually no change for black people.
So is automated justice colour-biased? Well if the experience of trials with facial recognition technology is anything to go by, the answer is yes as they consistently misidentify women and people of colour. And before you say ‘well that’s just the crazy Americans for you’, here in the UK the Metropolitan Police are championing the use of facial recognition tech that is ‘70% accurate’ – although critics say the figure is far lower. And, just 10 days before I wrote this review, a leaked document revealed the European Commission is considering banning all facial recognition technology in public places for up to five years.
Equality in access to justice
Technology undoubtedly has a role to play in delivering a better Justice system but ultimately it must serve not infringe the rights of citizens – and we are already dancing a fine line in the modern world between a technologically-enhanced society and a Black Mirror-like dystopian future.
By all means read this book but Baroness Hale, the retiring President of the Supreme Court, pinpointed the real problem with the justice system in a recent interview when she said it was government spending cuts, including slashing legal aid budgets, that have caused ‘serious difficulty’. Forget investing mega-budgets on futuristic technology, just putting some money into the legal system will improve the justice system.