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JILT 1997 (3) - Sir Henry Brooke

Computers and Judges

Sir Henry Brooke [1]
Appeal Court Judge
Royal Courts of Justice
hbrooke@msn.com

1. Introduction

The provision of computers for judges in England and Wales has reached something of a watershed. Since 1992, 300 laptops and 100 more powerful Pentium desktops, equipped with word-processing software and FELIX communications software, have been supplied to judges through the Lord Chancellor's Department ('LCD')'s JUDITH project. A further 50 judges have been supplied with FELIX software for use in their own PCs. The project has provided helpdesk support, and there has been a very small Court Service team providing the essential administrative backup. No new computers have been issued for over a year now, however, and there is now a waiting list of 200 judges who want to be supplied.

2. The JUDITH Project

At the end of the first three-year phase of the Project, the JUDITH Project Board invited consultants to consider the results of the initiative so far, and to map out the way in which we should build in future on the success of this opening phase. They reported in due course that everybody they had consulted was of the view that the Project had made a significant and valuable contribution. Descriptions of it included the epithets "resounding", 'brilliant' and 'tremendously valuable'. They reported, in unqualified terms, that the achievements of the Project to date had been impressive. Two innovations which potentially had wide application in both the civil and criminal process were the use of their computers by some judges to generate copies of their orders and directions in court and to distribute them to the parties on the spot, and the use of computers to expedite the process of releasing cases from a High Court judge to a circuit judge approved to handle High Court cases ('Section 9 releases'). The consultants also reported that the arrival of FELIX had had a profound effect on judges' ability to communicate with each other, particularly those who sat outside London. It had been instrumental in changing the attitude of many judges to the use of technology from scepticism to enthusiasm. Until the summer of 1996 the project had cost £1.6 million (excluding Court Service staff costs), or rather less than £4,000 for every judge involved.

On the other hand, the consultants' study also identified a number of concerns which had long been obvious to those of us concerned with the Project. First among these was the need to provide resources for training, since the Project Board had never been resourced for training judges (some of whom had very limited computer skills) in a properly structured and professional way. Other criticisms related to the lack of structure or focus to the project (which was again inevitable owing to the comparative lack of staff to support the judges who were running it), problems created by the wide variety of different applications which individual judges added to their systems (again fairly inevitable given the comparatively basic equipment with which they were provided and the unstructured environment in which judges operate) and problems connected with the use of helpdesk support, lack of user discipline, the lack of motivation of some of the judges to whom equipment was initially issued (leading to its non-use), and a number of different types of concern about security.

A significant number of the computers allocated to the Project in its early days are incapable of being upgraded and can be treated for all practical purposes as obsolete. The power and capacity of the Pentium desktops provide a clearer indication of the likely scale of judges' computer needs in future.

The reason why things are now at a standstill is not for want of judicial enthusiasm. It is connected with factors wholly outside judicial control - the hiatus created by the recent switch to the Private Finance Initiative as the means of financing public sector projects of this type, the Government's insistence that the civil justice system should pay for itself, the use of cost-benefit formulae more suited to the back-office than the front-office, and the current uncertainties about the future of Lord Woolf's recommendations following the change of Government. Perhaps more important is the realisation that future provision for the judiciary should lie in the creation of an Intranet, with the judges' terminals being serviced by central sources, rather than a proliferation of standalone PCs, each equipped with their own software and their own CD-Roms, and judges' corridors are a bit light on cabling at present.

The adoption of a policy based on an Intranet would throw up its own set of problems, since judges are not deskbound office-workers. They spend a lot of their days in court and, contrary to the beliefs of some of those who write in the media, many of them use their computers for their judicial functions at home a great deal in the evenings and at weekends. Any forward planning must take these considerations on board. Of 79 judges who answered the consultants' survey, 27 said they used their computers in court, 69 in chambers, 9 in judges' lodgings, 11 while travelling and 71 at home: these figures are not, of course, cumulative. 81% of those who responded said they made use of the portable nature of their machines.

As we peer mistily into the future - a task made more difficult because the IT scene is changing so fast - we have to consider as many different scenarios as possible, even if progress can only be made in stages. Otherwise there will be a great danger of providing equipment at public expense which will simply not be powerful enough to meet all the needs of judges that have been identified so far, quite apart from not allowing for contingencies that we cannot yet foresee. At present, the main judicial needs can be summarised as:

Word-processing and note-taking in court
Communications with other judges and court administrators
Access to on-line databases (or, for the time being, CD-Roms)
Judicial Case-management

I will leave the fourth of these topics to be addressed by Lord Saville in a future edition of JILT.

3. The use of IT by Judges

There is little that need be said about word-processing and note-taking. Many judges could not do their job without their word-processor, and a small, but increasing, number are using their laptops for taking notes in court, which is bound to make their job much easier when it comes to writing judgments and summing up. The 550 circuit judges and 330 district judges are not furnished with clerks or secretaries, and for them the computer may be an absolutely essential part of their working kit. It would be silly to suggest that all judges want to use a computer, but an increasing number do, and the needs of the 200 judges in the waiting list are not being met at present unless they supply their own equipment at their own expense. We are currently facing the challenge of changing from DOS-based WordPerfect software to Windows-based Word software, with all the transitional difficulties this will bring, particularly when resources for training in the past have been few and far between. The Judicial Studies Board has recently taken over the role of co-ordinating IT training for judges, and this is one of the first problems they will have to address.

A lot of publicity is given to developments like the LiveNote software (with or without video photographs of the witness giving evidence) which is transforming the conduct of some of the exceptionally heavy cases in which it is increasingly being used. Of course it will make the judge's job easier and help the trial to move more smoothly if he/she does not have to take a manuscript note and can make notes on the transcript scrolling up on the monitor screen on the bench. Some judges have claimed a 15-20% reduction in the time taken for evidence in the trials and inquiries in which this technology is being used. Although I welcome this development, and others of its kind, I am mainly concerned not with the major trial but with the use of applied technology in judges' courts and chambers in the mundane tasks which usually make up the judge's working day.

3.1 Communications

When a consultant was instructed five years ago to study judges' working methods, he came up with the very firm recommendation that the supply of communications software and modems should form an integral part of any provision that was to be made. This has proved to be another of the great successes of the JUDITH Project, and it is noticeable how, in advance of an Intranet, court administrators and librarians have joined FELIX in increasing numbers because of the convenience of its communications facilities. Quite apart from the basic E-mail system it provides, FELIX has enabled the Senior Presiding Judge to communicate easily with the other presiding judges around the country, all the correspondence between high court judges on the one hand and circuit judges and court staff about 'Section 9 releases' is done on FELIX on one of the circuits (I have watched it and very efficient it is, too), and a great deal of valuable information is exchanged between judges in the multitude of specialist conferences that have been sprouting up.

When I was sitting in the Court of Appeal with Lords Justices Saville and Waller earlier this year to clear 130 outstanding appeals and applications on Order 17 Rule 11 of the County Court Rules, we used FELIX to obtain some very useful information from district judges about the continuing problems they were encountering over the practical application of the rule. In the absence of a network at the Royal Courts of Justice, we also used it to circulate drafts of our judgment (in Bannister v SGB plc ) to each other, and as one of the three means we used (the others being the Internet, and the despatch of 40 hardcopies of the 70-page judgment to every main County Court centre in the country) to ensure that every judge exercising civil jurisdiction in the county court would have access to a copy of the judgment within a week after it was delivered.

The Judicial Studies Board is now increasingly using FELIX as a means of sending training material to judges, and of communicating with them about the seminars they are organising. Like everybody else its efforts are hampered because of the current freeze on the supply of new equipment. At present it cannot communicate with much more than a quarter of its full-time constituency by this means.

3.2 Access to Legal Materials

Ease of electronic access to legal materials has been revolutionised since I chaired the Bar's first Computer Committee 12 years ago. As will be well known to readers of JILT, legal publishers are now realising that they cannot go on ignoring the electronic publishing market, and more and more basic materials are now being made available in electronic form. Judges with CD-Rom drives on their computers are now being routinely supplied with the White Book and the Green Book, Archbold and the All England Law Reports on CD-Rom, and the service provided by New Law Publishing in producing summaries of leading judgments almost immediately after they are given is of enormous value to those of us who have access to it over FELIX. The publication of the Statute Law Database surely cannot be very far away now, and this will mean that the judiciary will be able to have very rapid access to the texts of statutes and statutory instruments in a way that has simply been impossible before now, except at great expense. As I have been warning for some time, these developments, in turn, are going to put pressure on practitioners to invest in up to date technology, simply to keep up with the judges.

In conjunction with the Court Library Service we will be looking with great interest at legal databases being compiled in the private sector, whether by individuals or commercial firms, to consider how useful they might be to English judges. A group of district judges and barristers is now working hard to make available for the judiciary a huge database of case-summaries in the housing law field (I have got it loaded on my computer in its present form), and this should be available in the autumn to the judges who are able to access it. Once judges see the advantages of this kind of help, the demand will grow. I watched a demonstration recently of the database of high court sentencing decisions which is being developed by the University of Stratchclyde. This fulfils a very obvious need north of the border, where they have not had the benefit of Dr David Thomas's sterling services in converting the reporting of sentencing decisions into an intellectual art form over the last twenty years. It showed me how useful applied technology can be, at comparatively small cost, in supplying the needs of a judicial market where those needs were not being met adequately before.

3.3 The arrival of the Internet

Of course, as readers of JILT will also know, the legal scene has been still further revolutionised in very recent times by the arrival of the Internet. The layering of information which is the hallmark of Internet technology is particularly suitable for the transmission of legal information, because by means of hypertext links users can access increasing layers of detail through layers of searchable summarised information. English judges visit the AUSTLII site, with its half million pages of primary Australian legal materials containing over 14 million hypertext links. with a mixture of admiration and awe.

A growing number of courts across the world are establishing web-sites on the Internet for the publication of their judgments. These are usually being placed there in raw form, with hypertext links from an index of the judgments published on the site, like the House of Lords website. Some courts are providing more sophisticated "value added" features, such as hypertext links to other judgments and statutory materials mentioned in the text, head-notes and search engines. Some federal courts in the United States and courts in New South Wales, for instance, are conducting pilot projects in this area. In British Columbia, all the Court of Appeal's judgments are posted immediately onto their website, with the intention that they should remain there for 12 months. At the end of that period the assumption is that they will either have been reported by "value-added" reporting services, or will have been considered not worth reporting at all.

The main purpose of these schemes is to make judgments of the courts immediately available to the citizen (and to lawyers and judges) in a raw form, preferably free at the point of access. As I see it, they should not be seen as trying to supersede or supplant traditional hardcopy law reporting, with its value added features such as headnotes and specialist selection - and, in the electronic field, the addition of sophisticated search engines - but they have the huge merit of making judgments available to everyone immediately across the country, at any rate in theory. This will put an end to the thoroughly unsatisfactory arrangements whereby unapproved copies of `hand-down' judgments are passed around the select few who have access to someone who was involved in the case, or by a sort of "Chinese whispers" process, and every one else has to wait months before the first value-added report appears.

During the last 12 months LCD has created its own website on the Internet. This site is now being rapidly developed, and it now includes LCD Press Releases and the full text of recent speeches by the Lord Chancellor and the Lord Chief Justice in addition to more mundane materials. At the end of April 1997 we persuaded LCD to place our judgment in Bannister on its website on an ad hoc basis because there was then no other way to make it officially available on the Internet. Since then three other judgments have followed, including our judgment in Greig Middleton v Denderowicz , the successor to Bannister on the effect of Order 17 Rule 11, in which we also authorised alterations to be made to our earlier judgment in Bannister, which had not yet been reported in a law report:: the text of Bannister on the website was duly altered.

These developments, and the successful Parliamentary publication on the Internet of House of Lords judgments (since November 1996), as well as similar initiatives abroad, have led the Court Service to decide to develop a dedicated website for the publication of judgments delivered by courts lower than the House of Lords. All that is visible there at present, with one exception, is a very attractive front page with hypertext links from the Court of Appeal, the Queen's Bench Division and the Chancery Division to the four judgments at present on the site. As I write this article at the end of August, the only additional feature is the Daily List for the Commercial Court. This is the first stage of a new venture sponsored by the President of the Commercial Court and approved by the Judge's Council in June. It is envisaged that in due course other Commercial Court materials, such as practice directions, an index of reported judgments and useful guidance for court users, will be added to the site as part of this pilot project.

Once the value of this service comes to be appreciated, it is likely to give rise to a considerable demand. The use of the Internet, with all its well-recognised shortcomings, is likely to be the short term expedient for meeting this demand. The Court Service and the judiciary will be collaborating on planning the way forward, and I expect rapid developments to take place in the development of information services like this over the next two or three years. They raise a whole host of difficult, and sometimes unprecedented, problems, as recent editions of the magazine of the Society for Computers and Law testify, but the power of Information Technology is so huge, and the demand for accurate, up to date, information about the law will increase so greatly, that sensible, workable solutions have got to be found, and the judiciary will be taking a lead in looking for them.

4. Conclusion

As I have already said, I will leave the discussion of post-Woolf developments to Lord Saville in his forthcoming article. I will be writing elsewhere about the way in which the use of electronic document filing systems for civil litigation is being developed rapidly in some overseas jurisdictions. The networked computer, supplied for the purposes of managing the court's current caseload, is surely going to be as important a judicial tool for the procedural judge in the new Millennium as the quill-pen and the chamber-pot behind the screen in the corner of the court was to the judges of Charles Dickens's day.

[1] Sir Henry Brooke, who is an Appeal Court Judge, is President of the Society of Computers and Law and Chairman of the Judges' Standing Committee on Information Technology.

Last revised: Wed 23 Feb 2005