Getting the balance right: a Holyrood roundtable discussion on digital justice
Digital justice - Image credit: Pixabay
“If you read the papers, you would think things were in total meltdown given i6…Equally when you look at British Airways, when you look at NHS 24 or anything else, you realise that actually significant progress has been made,” commented former justice secretary Kenny MacAskill, who was chairing the Holyrood and Axon roundtable discussion on digital justice that brought together key figures from across the sector discuss the state of play.
Following the failure of the i6 project to develop a Police Scotland computer system last year, you might be forgiven for thinking that progress in IT and justice had ground to a halt, but while that has held back capacity and efficiency within Police Scotland itself, much is going on across the justice sector as a whole to bring forward ways of working digitally, and in particular, share information effectively, both across the justice system itself and with victims, witnesses and other citizens.
While at the moment large parts of the system seem far from digitised – electronic evidence is transferred in most cases to the Crown Office on DVD physically by the police, warrants involve the police going in person to get a piece of paper signed and witnesses have to phone up to find out when they are needed and go in person to look over their statements – plans are afoot to change this.
In terms of evidence, Keith Dargie of the Crown Office and Procurator Fiscal Service (COPFS) said: “I think we’ve got a system, we do collaborate, there is a transfer of information, but that’s hopefully a good point to start building on strategically what we need to be doing to really embrace digital solutions and technologies.”
Calum Steele of the Scottish Police Federation added: “We’re still working on technology that’s in itself becoming obsolete. It’s long overdue that we move to something that was more suitable and didn’t require any physical transfer of materials.”
The Crown Office already has a secure disclosure website through which it makes electronic evidence available to the defence, and a piece of work has been ongoing to at look digital evidence sharing across the sector, which could be based on a similar model.
There’s an agile development going on to build a digital evidence sharing solution, where the police will be able deposit information such as video and camera evidence, with the idea being that it gets stored once by the police and then the Crown Office and other stakeholders can electronically access it.
A whole sector approach was needed to ensure it works for everyone, Wilson emphasised.
“What we will be doing in terms of the next phase of work is to actually do an options appraisal which will look at what is actually out there in terms of the solutions that are actually on the market.
We have to obviously look at how does system A speak to system B, because the last thing we want to do is come up with something that we think, well, that might work from a central government perspective, but you know we need to ensure that it can actually be used across the system,” he said.
Product owners from across the justice system have been lined up to work on the project, so it’s developed with those at the delivery end shaping how information and evidence is shared in future.
Dargie explained: “The key point I would make is that ultimately whatever we do, and the technological solution that is recommended, we need to ensure that we’re looking at the process from end to end.
Jim Wilson from the Scottish Government’s Justice Directorate made a similar point, highlighting the needs of everyone using the system need to be considered.
He said: “So how does the defence community play into this, for those who for whatever reason do not wish to access their own legal representation, we have to ensure if you have a litigant in person we have to make sure that they’re not digitally disadvantaged… so it’s a whole system approach and I think that’s absolutely key going forward.”
A challenge at the moment is that everyone is using different systems. There are no plans to try to bring everyone across the justice system into one.
However, moving the sharing of information online, into the cloud should remove the need for everyone to use compatible systems.
Jeremy Habberley of Axon pointed out that all that was really needed in that case was access.
“I think from a technology point of view, if you’re going to have a seamless system, then really you are just going to have the hardware elements, you’re not going to have the CDs and DVDs. All you need to do is access, so by definition everybody’s compatible because you just need a terminal to access it.”
But even that may not be as straightforward as it sounds.
Mike Crockart of the Scottish Government’s Digital Directorate pointed out that many court computers are currently air gapped – not connected to the internet – so there would need to be a way that all courts could access the evidence if shared online.
He also pointed out that some courts might need to be delayed if the internet connection was not good enough to live stream video.
Reliable internet connectivity will be essential to these future plans.
The key to any new developments has to be infrastructure not “gadgets”, Steele opined, and that was something that needs to come from government with buy-in from the private sector to roll out the necessary connectivity.
He said: “At any moment in time…when new things come in and they’re in vogue, there’s a big rush to get into the shiny stuff, because people can point at it, they like it, they believe it’s going to deliver stuff, but you can’t drive from Glasgow to Edinburgh and have a solid mobile phone signal from one side of the country to the [other], from one side of the most populated parts of the country, never mind heading anything 20 or 30 miles north of that straight line where most of the population stays.”
Habberley acknowledged that there had often been a focus on “bits of plastic” because of funding cycles that required money to be spent within certain time frames, and that connectivity could be an issue, but pointed out that the key was the transfer and sharing of data rather than devices, and the flexible, scalable and searchable benefits of the cloud storage.
“There’s no force in the world that has the computing power that Microsoft Azure have,” he said.
He continued: “If I want a search to show me every bit of evidence I’ve got, [for example] digital evidence that shows me an Alsatian and a red car, then you need that sort of computing power of the cloud.
“Again, I think people get hung up on the storage side, but actually it’s that computing power to move it to the next step with everything that’s digitised, you need to be able to search it, you need to be able to utilise and share it and that all comes down to getting the infrastructure right and getting that process right rather than the CCTV camera or the body worn camera.”
Dargie agreed: “Certainly my view, it has to be a cloud solution…Simple, scalable and it does what we need.”
Other developments are being thought of too. The courts and police already have the powers, if not always the infrastructure, for the accused to make court appearances remotely from a police station via video conferencing, apart from the first callings of cases and for trials where evidence is being led.
However, first callings will soon also be able to be held via video conferencing due a change in legislation.
This could help, particularly in the case of “challenging prisoners”, where there are significant resource and personal safety issues around prisoner transfer, Stephen Dolan, the business lead for mobility at Police Scotland confirmed.
The process for getting warrants, too, may soon be updated.
The Criminal Justice (Scotland) Act 2016, allows for something that’s currently done to be done electronically, which could include the use of electronic signatures or electronic documentation and one of the pieces of work the Scottish Government is looking at currently is the process of getting a warrant.
And the Crown Office is about to trial a digital case management system in court, using tablet computers instead paper, with a pilot running in Perth and Livingston later on this year.
There is also the possibility of using digital to making the experience of the justice system better for witnesses and victims.
A witness system could let people know when they are needed and a system where victims and families would be able to track the progress of a case in a similar way to the information about the progress of a bill on the Scottish or UK parliament websites.
Work is scheduled to begin this year on planning and developing a prototype witness information system.
Meanwhile the Scottish Courts and Tribunal Service is creating a portal for victims and victim support groups, which will have details of the case, something Victim Support Scotland has been pushing for.
Having witness availability information would help the efficiency of the whole system, Dargie suggested, with apps replacing phone calls for witnesses to get easy access to the information they need, but also better information for those in the system on witness availability to reduce delays in court.
But with all these possibilities for digitisation, the discussion also turned to how much digitisation was desirable in the justice system and the importance of human interaction to keep things flowing well.
While it may be possible to hold more court cases virtually, to give verdicts and judgements online, as well as have the accused appear remotely via TV link, potentially saving long round trips between police station, prison and court, should this be the default?
“Now the fact that [remote court appearances are] possible in theory, doesn’t necessarily mean that in every case it will be desirable in practice,” said David Dickson of the Scottish Government Justice Directorate.
He added: “Certainly the use of TV links to do custody hearings will become a possibility, legally if not necessarily technically, but the next question that would have to be answered by operational organisations is whether the case stands up for it becoming the default or whether in fact in most cases will it remain easier, more economically astute simply to move the body as we do now.
“There may be more of a case to do it where somebody is being held in Stranraer and they have a warrant in Oban, let’s say, rather than shipping the body up the road, there may be a case for a TV link in that situation rather than just doing it routinely.
“So certainly the door will be open, in terms of the legislative framework the door will be opened.
“The next question that has to be answered is obviously the utilitarian one: at what point does it become desirable to make this the default?
“Or will the default still remain, for the big courts anyway, that we take the bodies, we ship them [to the court]?”
Another issue relating to better online access to details of trials and evidence will be data protection and the question of how much information it is desirable to have online.
Iain Hockenhull, Head of Information Governance at the Scottish Courts and Tribunal Service, said: “One of the key things there is where you’ve got the victim giving testimony. You’ve got several personal data issues in play, where do you give the primacy to?
“Our bar view was, yes, of course the accused was there, he knows the victim said that, but we’re giving primacy to the victim relaying these horrendous facts of their experience, that’s their personal data primarily, it’s the accused’s as well, but in terms of the Data Protection Act we’re giving primacy there.
“We’ve got the ICO saying yes in some instances, maybe no in others, and it’s getting very complicated.”
However, Habberley pointed out that one benefit of having everything in digital format from a data protection point of view is you’ve got a comprehensive digital trail of who’s looked at what, when they looked at it, whether they shared it, you do have access to a far more comprehensive audit trail than with a file or a disk.
Mike Nellis, Emeritus Professor of Criminal and Community Justice at the University of Strathclyde, asked what a fully digitised justice system would look like and raised concerns about taking digitisation too far.
He said: “I thought that the phrase that was used about a fully digitised criminal justice system, that’s clearly a very ambitious goal, but what exactly does fully digitised embrace?
“You’re starting from a position where DVDs are still being manhandled around different agencies, but where are we trying to get to? What is the end point?
“I wouldn’t like to think myself that the end point of a fully digitised justice systems looks like Uber or AirBnB, what is the balance of the human and the digital in all this?”
This was a point that had come up in public consultations on the evidence and review consultation paper, Dickson said.
He answered: “One issue that came up over and over again was the point at which the human would be expected to interact with the system, as it were, face to face.
“To take one example, one proposition in the paper was that you could do more and more sentencing online so that people could enter a plea online, receive the sentence online and effectively pass through the system in a fairly frictionless way…There was a lot of push back on that. Partly from the judiciary, partly from the practitioners.
“From [the defence] point of view, they were saying, look, we regard representing an accused person as an act of advocacy.
“There are letter pleas in the system just now, of course, but they were saying there were times when we want to go to court and address a court in what we think the possible outcome should be. We don’t want that to come out the system.
“The judiciary, coming from the other view, were saying, look, there are people we want to turn up at court, not necessarily because we want to jail them, but we think there always needs to be a place for us to say, right… we appreciate that you’ve pled guilty to this online, but we need to see you in court for sentencing, to add the seriousness, if you like, the deterrent part of it, the contributive part of it in the court of the public forum where justice is seen to be done…
“That’s just one example, but one of the things that we heard very strongly every venue we went to was when you’re digitising a system, don’t lose sight of the fact that there a lot of human interactions every point in the system and sometimes it’s these interactions that make the system work and sometimes these, such as at the point of sentencing, that give the systems point.”
More clarity may needed to lay out then, not just the aims, but the limits of digitisation, and Nellis highlighted that this needs to be carried out at the outset.
“The principal of keeping a human dimension to justice seems to be should be something that’s designed in the digital justice systems and not kind of left to chance as some kind of residue that hangs around when we’ve digitised just about everything we can,” he said.