Written by The UK justice system prides itself on the principle of equality before the law. However, as courts increasingly digitise their processes, a concerning gap is emerging between those with legal representation and Litigants in Person (LiPs). This digital divide raises critical questions about access to justice and the fair treatment of LiPs in our court system.
The Rise of Digital Courts
In recent years, the UK has made significant strides in digitising court processes. The introduction of online platforms for case management, document filing, and even virtual hearings has streamlined many aspects of legal proceedings. For legal professionals with the necessary resources and training, these digital tools have generally improved efficiency and access to information.
The HM Courts & Tribunals Service (HMCTS) Reform Programme, launched in 2016, has been a driving force behind this digitisation. With an investment of £1.2 billion, the programme aims to modernise and upgrade the justice system (HMCTS, 2021). The Courts and Tribunals (Online Procedure) Bill, introduced in 2019, aims to establish a legal framework for these digital processes but is not yet law.
However, as we explored in our previous article “The Civil Procedure Rules: A Barrier to Justice for Litigants in Person in the UK?“, navigating the legal system can be challenging for LiPs even without the added complexity of digital systems.
The Digital Divide
LiPs often face significant barriers when it comes to accessing and effectively using digital court systems:
- Limited Access: Many court digital systems are designed primarily for legal professionals, with LiPs having restricted access or none at all.
- Lack of Training: While lawyers receive training and support in using these systems, LiPs are often left to figure things out on their own.
- Technical Barriers: Not all LiPs have access to the necessary technology or reliable internet connections to effectively engage with digital court processes.
- Complexity: The interfaces of many digital court systems can be confusing and overwhelming for those without legal training.
Recent data underscores the scale of this issue. According to the Ministry of Justice, in the family courts, 38% of cases had at least one party unrepresented throughout the entire duration of the case. In the civil courts, this figure rises to 53% for small claims cases.
Implications for Justice
This digital divide has serious implications for the principle of equality before the law:
- Information Asymmetry: Lawyers with full access to digital systems may have access to case information and updates that LiPs do not, creating an unfair advantage.
- Procedural Disadvantages: LiPs may miss important deadlines or fail to comply with procedural requirements due to limited access to or understanding of digital systems.
- Reduced Engagement: Frustration with inaccessible or complex digital processes may discourage LiPs from fully engaging with their cases.
- Potential for Miscarriages of Justice: In extreme cases, the digital divide could contribute to unfair outcomes if LiPs are unable to present their cases effectively due to technical barriers.
The recent Independent Review of Criminal Legal Aid (2021) highlighted these concerns.
Steps Towards Equality
To address these issues and move towards true equality in the digital court landscape, several steps should be considered:
- Expand Access: Courts should work to provide LiPs with comparable levels of access to digital systems as legal professionals, with appropriate safeguards.
- Simplified Interfaces: Develop user-friendly interfaces specifically designed for LiPs, with clear guidance and support.
- Training and Support: Offer training sessions and helplines to assist LiPs in navigating digital court systems.
- Alternative Options: Maintain non-digital alternatives for those who cannot access or use digital systems effectively.
- Judicial Awareness: Ensure judges are aware of the challenges faced by LiPs in digital systems and can make appropriate accommodations.
Comparative Perspective
While the UK grapples with this digital divide, it’s instructive to look at how other jurisdictions are addressing similar challenges:
- Scotland: The Scottish Courts and Tribunals Service has implemented a ‘Civil Online’ system with a dedicated portal for party litigants (the Scottish term for LiPs). This system offers simplified interfaces and guidance specifically designed for those without legal representation (Scottish Courts and Tribunals Service, 2023).
- Netherlands: The Dutch legal system has introduced ‘Rechtwijzer‘, an online dispute resolution platform that guides users through legal processes using plain language and interactive tools. This system has been praised for its accessibility to all users, regardless of legal expertise.
These examples demonstrate that with careful design and implementation, digital court systems can enhance rather than hinder access to justice for LiPs.
Long-Term Consequences
The persistence of a digital divide in our court system could have far-reaching consequences:
- Erosion of Public Trust: If LiPs consistently face disadvantages in digital systems, it could undermine public confidence in the fairness of the justice system.
- Two-Tier Justice: We risk creating a two-tier system where those with legal representation have a significant advantage in navigating court processes.
- Increased Costs: LiPs struggling with digital systems may require more court time and resources, potentially increasing costs for the justice system as a whole.
- Widening Inequality: The digital divide could exacerbate existing social inequalities, as those with lower digital literacy or limited access to technology face additional barriers to justice.
Addressing these issues now is crucial to maintaining the integrity and accessibility of our justice system in the digital age.
Conclusion
As we continue to embrace digital technologies in our justice system, we must ensure that these advancements don’t create new barriers to justice. True equality before the law requires that all parties, represented or not, have fair and comparable access to court processes and information.
The treatment of LiPs in our digital court systems is not just a matter of convenience or efficiency – it’s a fundamental issue of access to justice. As we move forward, addressing this digital divide must be a priority to uphold the principles of fairness and equality that underpin our legal system.
Call to Action
As legal professionals, we all have a role to play in addressing this digital divide:
1. Advocate for Change: Use your professional networks and associations to push for more inclusive digital court systems.
2. Offer Support: Consider providing pro bono assistance to LiPs struggling with digital court processes.
3. Share Knowledge: If you’re comfortable with digital court systems, share your expertise through workshops or online resources for LiPs.
4. Provide Feedback: Engage with HMCTS consultations and provide feedback on how digital systems can be improved for all users.
By taking these steps, we can work towards a justice system that truly embraces digital innovation while ensuring equal access for all.
#UKLaw #AccessToJustice #DigitalDivide #LitigantsInPerson #DigitalCourts #LegalInnovation #EqualityBeforeTheLaw #JusticeSystem #LegalTech #CourtReform
References
1. HM Courts & Tribunals Service. (2021). “HMCTS Reform Programme“.
2. Courts and Tribunals (Online Procedure) Bill 2019. Available at: [UK Parliament].
3. Ministry of Justice. (2023). “Family Court Statistics Quarterly: January to March 2023“.
4. Ministry of Justice. (2023). “Court Statistics Quarterly: January to March 2023“.
5. Independent Review of Criminal Legal Aid. (2021). “Criminal Legal Aid Review: An independent review“.
6. Barwell, J. (18/07/2024). “The Civil Procedure Rules: A Barrier to Justice for Litigants in Person in the UK?“. LinkedIn.
7. Barwell, J. (12/06/2024). “The Psychological Toll of Legal Battles: A Litigant in Person’s Journey“. LinkedIn.
8. Scottish Courts and Tribunals Service. (2023). “Civil Online: Annual Report 2022-2023“.