HM Courts & Tribunals Services (HMCTS) must collect data on vulnerable users of online courts, on matters such as age, disability, race and sexual orientation, a report by the Legal Education Foundation (LEF) has said.
The LEF also recommended that HMCTS consider giving users of online courts “unique identifiers” so their progress through the system, and possible exit from it, could be traced.
Lack of data on the government’s £1.7bn court reform programme has been a frequent source of criticism, along with concerns that not enough is being done to reduce the risk of digital exclusion.
The report is unusual in being the work of the LEF’s director of research and learning, Dr Natalie Byrom, following a three-month secondment to HMCTS as expert adviser on open data earlier this year.
The LEF said that, to maintain her independence, Dr Byrom was not paid by HMCTS.
Dr Byrom said the government must collect more data on those using the courts to honour its commitment to monitor the impact of the reforms on vulnerable people.
“To avoid exclusion, or to be able to correct procedures if some groups are being excluded, my recommendation is that court users are asked a small number of questions about protected characteristics – for example, in relation to age, mental or physical disability, gender, and other factors associated with vulnerability.
“These questions would be optional and reflect the attributes currently used by judges to determine when an individual may be vulnerable. This information should be collected as a matter of routine.”
Dr Byrom listed 13 characteristics that would provide “minimum data” to measure vulnerability.
They included English as a foreign language and level of education, to assess literacy, along with “fear or distress connected with the case”, such as domestic violence or abuse, or being a survivor of trafficking.
The report warned: “Digitisation may make it easier for certain types of claimant to initiate claims, whilst deterring others. Reducing barriers to accessing legal processes may alter the types of cases that individuals pursue through the justice system.
“For example, in the context of civil money claims, it is possible that digitising processes and moving them online reduces the effort expended by claimant companies, whilst increasing the effort burdens placed on vulnerable defendants.”
The report said unique identifiers at the user, rather than case, level would “facilitate the development of a detailed understanding of the way in which court users progress through the system, where and when they exit the system, and the outcomes they secure when they do so”.
If appropriately anonymised, this data could also be of use to researchers and wider stakeholders, including policy makers, Dr Byrom added.
“Experts in privacy law and data ethics should be consulted to advise on the benefits and drawbacks of this approach and ensure that this data is captured, stored and utilised in a manner that respects established legal and ethical requirements.
“The public acceptability of the creation of individual identifiers should be tested prior to their introduction.”
Dr Byrom’s report, Digital justice: HMCTS data strategy and delivering access to justice, was based partly on interviews she carried out with 60 experts on justice in the UK and internationally, including senior judges, government officials, academic researchers and data and privacy specialists.
She made 29 recommendations, mainly about data collection, including the production of a ‘data catalogue’, explaining what data HMCTS currently held.
Dr Byrom also recommended that the Ministry of Justice commission an independent report on the current arrangements for disseminating judgments to the public.
“On the basis of this report, HMCTS and the MoJ should engage with key stakeholders to develop a publication solution that delivers free and comprehensive access to judgments in a structured machine-readable format.”
Susan Acland-Hood, chief executive of HMCTS, welcomed the report and recommendations, “which will be crucial in informing how we continue to create, manage and apply data to underpin the reform programme, in particular how we evaluate the programme”.
She added: “We have already made good progress in many of the areas highlighted and, alongside the senior judiciary and Ministry of Justice, will work carefully through all recommendations before setting our plans in full.”