Dematerialising Law/Engaging Citizens?

There is a fascinating geographical underpinning to the justice process: that proximity to courts equates to the possibility of achieving justice. At first glance this sounds straightforward: that access to justice must be influenced by the ability to actually visit a court room, to give testimony,to provide a defense, to support a family member and so on. But proximity is more complex than actual presence in the court space, a point that is becoming clearer in the UK Government consultation (2015) and recent interventions in the court system of England and Wales. Today the UK Ministry of Justice announced today that eighty six courts would close, following 140 courts shut after the last review in 2011. These closures are justified on the lack of use, many of these courtrooms would be used for no more than two days a week, and consolidating trial processes in fewer sites will lead, so the consultation report suggests, to numerous efficiency savings and the possibility of economic gains by selling the court estate.

But of course: the costs are in terms of access. Reading the text of Chief Executive and HM Courts & Tribunals Service Natalie Ceeney’s speech on modernising the courts and tribunals service illuminates the move from physical presence to greater use of online technology within the court system. This is no surprise, it follows on from Professor Richard Susskind’s report of February 2015 that advocated the establishment of Her Majesty’s Online Court (HMOC) for use in low-value civil cases in the UK. This instrument that would allow members of the Judiciary to “decide cases on an online basis, interacting electronically with parties” while affording benefits of “an increase in access to justice (a more affordable and user-friendly service) and substantial savings in the cost of the court system” (p. 4). Ceeney sees a key role of her institution to facilitate a move from what she calls the ‘physical paradigm’:

our system needs to be accessible – easy to use, but digital in design. Today’s court system has been built around a physical paradigm. We spend a third of the court and tribunal service budget on running and maintaining our buildings. And last year, over a third of courts sat for less than 50% of the time available to them. Not only is this expensive but, for many of our services, it is no longer the right answer for good justice. Britain has the highest rate of online service usage in the world – over one quarter of all non-food goods are now purchased online and 85% of Britons are online. We need to enable a police officer give evidence by video, taking 10 minutes of time off their working day, rather than the current half day. We need to stop running prison vans to transport prisoners to and from prisons for a 10 minute plea hearing which can be done online. 

But what geographical assumptions underpin this image of court space? The first is that face-to-face interaction and a video stream can easily be equated. This is clearly contestable: the work of the Forensic Architecture group at Goldsmiths,University of London, have drawn attention to the significance of certain threshold levels of resolution that allow lawyers and defendants to ‘read’ facial emotions or body language. It is simply not the same to say that testimony is simply information transaction, it is a relational product emerging through encounter. I am reminded of the legal advocacy NGO officer who remarked during an interview in Sarajevo in 2012 that the court did not believe the account of a survivor of wartime sexual violence “until she started crying”. While unquestionably this can be (and is for many) a retraumatising experience, and the use of video technology has been vital to the partial protection of vulnerable groups, the dangers of the universal shift to online testimony is the removal of choice.

The second concern of the end of the ‘physical paradigm’ is the absence of courts as symbolic spaces that underscore the justice system. I am reminded once more of Linda Mulcahy‘s brilliant work on Legal Architecture where both the external and internal physical arrangement of court spaces play a significant role in shaping social and individual understandings of the nature of the legal system. This was a key aspect of the research in Bosnia and Herzegovina (BiH) into the establishment of the Court of BiH, where respondents often remarked on the significance of the construction of the court as an edifice in Sarajevo and how this emphasised the shift of judicial responsibility for war crimes trials from the ICTY in the Hague. Of course, the choice of building was contentious (as I explain in the The Improvised State and follow up in a co-authored paper with Michaelina Jakala), but in some ways this is an illustration of the significance of physical manifestation in providing a focal point for wider debates concerning the nature of justice.

It will be interesting to see if the dematerialising of law in the UK has repercussions beyond that of the efficiency or cost of the court process. In particular, how does the changing nature of accessing justice change how individuals and groups conceive of the court system as a means through which they may secure their rights?

Alex Jeffrey, February 2016








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