The Electronic Pillars of Justice
Richard Susskind OBE, FRSE
How should a national government, faced with the task of modernising its justice system, meet the challenges of the future, given the formidable array of technical options that have emerged over the last decade? This is an increasingly important question for governments around the world, many of whom are currently seeking to prioritise amongst a bewildering array of information technologies.
The argument of this paper is that to meet the challenge squarely, any justice system that is taking IT seriously must develop its own long term IT strategy. In the absence of a strategic approach, systems would no doubt be put in place, but this would probably happen in a rather haphazard and random way.
Rather than leave the evolution of much of the justice system to chance, I believe passionately that some systematic strategic planning should take place so that technical possibilities and opportunities are prioritised in an informed, structured and controlled way; and, further, that the choices between the various possible options are made on sound policy grounds. When I speak of strategy in this context and of adopting a strategic approach, I must stress that I am not suggesting the development of highly detailed plans, with finely calibrated milestones and budgets, articulated a decade in advance. Rather, I am referring to what I call "strategic direction" – clear, overall direction (a point on the horizon), with well established high-level priorities, a shared sense of purpose and strong linkage to overarching policy objectives or business strategy. This is to be contrasted with short-term IT thinking, driven either by a desire only for "quick wins" or by IT enthusiasts within organisations who make their demands more forcefully than others.
If a strategic aoach is indeed preferred, one vexed question that immediately follows is whether it is desirable that the approach should, in so far as is possible, be an overarching one, applying to numerous bodies, agencies and individuals across the civil and criminal justice systems; or whether various parts of the system should be left to develop their own independent strategies. In finding a response to that question, it is worth reflecting first on the wide range of systems that are currently possible in the law
[1]. It becomes clear, on reflection, that many of the current and impending technology-based changes share two significant features. On the one hand, many of the possible applications of IT (for example, desktop video conferencing) are generic, in that they actually apply to, or are relevant for, most (if not all) individual parts of the justice system. On the other hand, many of them are instances of innovation rather than automation. This means that their deployment would result not just in the streamlining of specific organisations but instead would often bring fundamental change well beyond the component of the justice system to which they most obviously apply. In turn, this would impact heavily on neighbouring bodies, agencies or organisations.
Computerisation across the life cycle of a criminal case which goes to trial, for example, would impinge on the technology of a wide variety of bodies (police, prosecution, court, prison and many more). The partial introduction of IT across that life cycle, which would come about if new systems were implemented in one agency but not in several others would be unlikely to deliver maximum benefits. Future uses of IT are likely to apply across the entire justice system and establish new relationships between parts of the justice system. Major IT initiatives will challenge and perhaps even eliminate traditional boundaries. Accordingly, it would be sensible for at least some IT strategy and planning work to operate at the macro level across the entire justice system (civil and criminal).
This is not the place to delve into the details of strategic planning but I think it might be helpful to explain that I have, in last few years, refined my own position in this context in one important respect – I now believe that we have some considerably greater control over the future than is often supposed. This is crisply captured by those who say that the best way to predict the future is to invent it. The future is not out there like some foggy day, pre-existing and waiting to be revealed once the mist lifts. Instead, I now like to think of it more as a lump of clay – it has the potential of being fashioned into a fine sculpture but, equally, it could end up as an unstructured mess. Within the confines of what is technically possible, it is up to human beings to create the future just as though it were malleable clay.
There is a difficulty here, however: although IT is now attracting far more attention across the justice systems of the globe than ever before, it is still doubtful that most top opinion formers and decision-makers, in either the public or private sectors, have grasped just how fundamentally and rapidly the administration of justice might be transformed through technology in the next five to ten years. Thus, the world over, those who are best placed to create the future of law are often not yet fully engaged when it comes to IT.
Yet empirical evidence of the benefits of IT for justice is mounting and the impact is becoming hard to ignore on any level. Ongoing work on the potential of IT for many of the courts in England, for example, confirmed what for proponents of IT had never been in doubt - that the introduction even of modest technologies could bring enormous efficiency gains and costs savings to the court system. The justice system in England is a vast, document intensive and labour intensive operation, most of whose administrative and management systems were developed at a time when the throughput and workload of the courts and lawyers were far smaller. Many of the systems are crude, paper-based, orientated towards the process of administration and not the public, and few are able to cope with the increasing demands placed upon them. This currently brings high staffing costs, inefficiencies, error, delay, poor reputation and dissatisfaction. The time for computerisation is long overdue.
And yet, rendering the current system more efficient through automation is only to begin work on bringing the administration of justice into the information age. More radically still, given the inevitably pervasive impact of the Internet, and as the nation’s education, health, welfare, taxation and employment services, for example, come to be administered electronically, it is reasonable to assume that there will also be pressure for the legal system to be available on-line and for legal services to be delivered electronically. This will bring not just efficiency gains but fundamental changes to entire justice systems.
I would like now to propose a simple model for thinking about the place for IT in any justice system of the future. Diagramatically represented in Figure 1, the model assumes there will be three vital roles for IT in the justice system. These will be in providing and enabling:
- an internal communications infrastructure for justice workers;
- the provision of electronic legal information and services within the justice system; and
- public access to the law and legal guidance.
Each of these is addressed below, with special reference, at this stage, to the justice system in England.
At the core of tomorrow’s justice system should be the whole set of justice workers (including judges, solicitors, public officials, voluntary workers and support staff). I would anticipate that, within two years, the overwhelming majority of justice workers in advanced legal systems (more than half a million in England, excluding the police who should be included in a fuller analysis) will be able to communicate electronically with one another and with the outside world.
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While in one sense the infrastructure can be thought of as one big network, it is better imagined as an innumerable collection of "virtual private networks". Thus, each justice worker will have her own portfolio of what can be regarded as "affiliations", all accessible through one mail box. A typical solicitor, for example, might be affiliated to a general court system network, to the intranets of a series of professional bodies, to networks set up for particular cases, to her own firm’s systems, and so forth. Each virtual network would, in effect, be discrete and separate. The key point, however, is that each would function in accordance with common and appropriate standards and the user herself would have the only point of entry to her entire portfolio. There will be no need to log in and out of separate systems and no complex file conversion processes.
Advances in telecommunications technologies (including optical fibre, mobile and satellite) and the introduction of widely accepted standards will enable the transfer of files and of funds and provide common areas to visit to hold public and private, on-line and off-line, discussions and forums, all under conditions which will be sufficiently secure, confidential, private, reliable and capable of authentication.
This telecommunications infrastructure will carry not only electronic mail and conventional data, but will also support the transmission of bundles of documents, which are connected to one another through hyperlinks, so that, on arrival, recipients will immediately be able to navigate through them following explicit cross-references. These bundles will come to be delivered in multi-media format, so that users will not just read the documents in textual form but also be able, on screen, to view, for example, relevant photographic evidence and sound recordings and even video as well.
Finally, that same telecommunications infrastructure will, in due course, support video conferencing directly from the personal computers of all justice workers.
That same internal telecommunications infrastructure for justice workers will also serve as the basis for the provision of innumerable electronic systems and services for lawyers, judges and others. Across this infrastructure, for example, users will be able to gain access to edited legal source materials made available by legal publishers and other providers; and they will have direct access to services such as land registration and to agencies such as the legal aid bodies. Crucially, a good deal of court business (for example, the lodging of documents, the tracking of the status of cases and video conferencing with judges) will also be mediated through the new systems. And high speed broadband access to the World Wide Web will also be available for the legal profession across this infrastructure.
One pillar of the justice system, as shown in Figure One, will therefore be the new
electronic legal marketplace – conventional legal services and new forms of legal service will be available here on a commercial basis. As the business of both the courts and of lawyers becomes increasingly dominated by IT, this electronic legal marketplace will in due course become the focal point of justice workers. But on this model, justice workers will only be part of the user community. The rest, who will dispose of their legal business electronically, will be those who today fall into category of "clients" as well as those other users who belong to what I call the "latent legal market". What all these users have in common is that they will need to pay for legal services delivered from this first pillar.
My notion of the latent legal market needs some elaboration. I start from the premise that there are innumerable situations, in the domestic and working lives of all non-lawyers, in which they need and would benefit from legal guidance (or earlier and more timely help) but obtaining that legal input today seems to be too costly, excessively time consuming, too cumbersome and convoluted, or just plain forbidding. This is the latent legal market, which I believe will be liberated by the availability of straightforward, no-nonsense, on-line legal guidance systems. They will not replace conventional legal services, but they will provide affordable, easy access to legal guidance where this may have been unaffordable or impractical in the past. I see particular benefit here for small to medium sized businesses who are willing to pay for legal help today but not perhaps as much as lawyers want to charge them.
In contrast to the first, the second pillar of the justice system, as depicted in Figure One, will be accessible by everyone in society; and at
no direct cost to these non-legal users. Alongside all manner of other bodies of freely available public information, legal guidance and legal services will inevitably, I believe, be accessible on the World Wide Web, providing
public access to the law.
In England, this is entirely consistent with the governmmmitmen electronic delivery of government services, within the broader context of an ambitious programme to modernise government
[2]. But more particularly, the model fully supports the government’s commitment to the establishment of a "Community Legal Service".
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IT could help in offering public access to law in at least seven ways, by enabling the provision of:
- a "portal" which would be a master web site or gateway for all legal services in the country – the definitive, first port of call for anyone who has a legal problem or worry;
- online legal guidance systems – directly accessible through publicly available services (terminals in public places or through the Internet), systems which offer practical legal help to non-legal users, guiding them on their rights and responsibilities;
- bulletin boards – a facility that invites users to "post" (privately or publicly) their legal problems on on-line notice-boards, to which designated lawyers could go and respond;
- video conferencing – whereby non-lawyers can have virtual, on-line meetings with appropriate legal advisers;
- a network of lawyers to support the voluntary sector – through electronic mail, using the common communications infrastructure, many lawyers could offer a form of secondary help, which would be support not directly to the community but by way of guidance to the many voluntary workers who inevitably need legal opinions from time to time;
- electronic case files – when all the documents pertaining to cases before the courts are in due course accessible online; and
- free Internet-based service that offers access tary legal source materials (legislation and case law).
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All seven facilities could offer legal help to individuals and organisations that may otherwise have to go without. In so doing, IT would genuinely enable greater "access to justice". But technology has caused me to look more carefully at that much used and oft-abused phrase.
The thrust of Lord Woolf’s seminal reports, which bore this phheir title
[5], was on access to improved, cheaper and fairer means of resolving disputes and tackling legal problems which have already arisen. For Lord Woolf, and for most lawyers who speak about access to justice, they could equally be said to be referring to access to much improved dispute resolution. In the information society, however, access to justice may well also come to have two further dimensions.
First, if I am right and the latent legal market of today will come to have legal guidance at its fingertips on the Internet to an extent that has not been possible in the past, then this readier, cheaper and more widespread access to legal counsel will give rise, I argue,
not to improved dispute resolution but to
dispute pre-emption instead. And my experience is that non-lawyers would generally prefer the prevention or avoidance of legal problems to the dispute resolution process no matter how much it is over-hauled. In law, as elsewhere, prevention is better than cure; and access to legal guidance will give rise to a more just society in the same way that immunisation leads to a healthier community.
The medical analogy helps identify a third sense of access to justice. I have in mind the relatively recent work on health promotion – we are advised nowadays to exercise aerobically for at least 20 minutes, three times a week, not just because this will reduce our chances of, for example, coronary heart disease, but because it will make us all feel a whole lot better. The idea is not only to prevent ill-health but to promote our physical and mental well-being. The law also surely provides us with the means by which we can improve our general well-being; and not only by helping to resolve or avoid problems. Instead, there are many benefits, improvements and advantages that the law can confer, even when there is no perceived problem or difficulty. And yet, many people are hopelessly unaware of the full range of facilities available today (from welfare benefits through to tax planning schemes; from making a will to undertaking corporate re-structuring), such that there is little chance of legal health promotion. Access to justice, in this third sense, means access to the opportunities that the law creates. This underlies one of the themes of my work that in the legal systems of tomorrow the law will come to be seen as empowering and not restrictive.
Looking ahead, then, governments that are committed to community legal services, akin perhaps to community medicine programmes, should be aiming to improve access to justice in three senses and not just one.
If realised, I believe that this model of tomorrow’s justice system, with a sound communications infrastructure and the two pillars of electronic legal marketplace and public access to the law, would bring a variety of benefits, including:
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a more efficient justice system, by making what is a highly information-intensive system more productive and less costly (in terms of the unit costs of transactions within the system if not the overall cost);
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provision of greater access to the law, legal guidance and so to justice, through publicly available legal information services (available, for example, in kiosks in court buildings; or public access terminals in shopping malls; or – vitally and soon - in the home through the Internet) which may come to be at the core of a community legal service;
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reduction in the delays, costs and time associated with resolving disputes, by equipping the courts and judges with systems which will manage resources and documents more effectively, enhance productivity and reduce the length of hearings;
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greater empowerment of the voluntary sector, by providing legal information facilities which will extend the capability and areas of competence, for example, of citizens advice bureaux and legal advice centres, and community legal services generally; and
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stimulation of greater confidence in the justice system: in individuals, for whom the law is too often regarded as antiquated; and in the business community whose dissatisfaction with delays is compounded by exposure to court practices that are primitive in comparison to those found in most modern offices.
Who might develop and fund the implementation of the vision just outlined, given that the infrastructure and the two pillars envisaged would undoubtedly be costly and complex to put in place?
There are compelling reasons, in the UK at least, for proposing that the new technology should
not be financed and developed from within the public sector. In the first place, in the current climate of strict control of public expenditure, it is simply unrealistic to expect that funds would be allocated to such a costly and long term investment. Moreover, the infrastructure, systems and services that are anticipated constitute a formidable technical challenge for which the public sector of today’s justice system is not technically resourced or sufficiently experienced to undertake.
The alternative is to procure appropriate systems and services from private sector suppliers. This is the approach being adopted in the UK, where it is intended that a series of major IT programmes for the courts and justice system be introduced through the government’s Private Finance Initiative. It is early days yet for this scheme, and so a reliable progress report cannot be given at this stage.
Thinking about this approach in general terms, however, it seems to me, from a public sector point of view, that the main challenge of privately financing IT in the justice system is to identify a range of IT projects which, when outsourced (for this is what it amounts to), would lead not only to increased productivity and to improved access to legal and court services but to keeping a good deal of IT off the government’s balance sheet. At the same time, from a commercial angle, the projects must also offer sufficient return for the private investors and result in net cost to the state and the citizen which is less than is currently possible.
I am optimistic that this can be achieved. The reason I am up-beat is that I am convinced that the current system is woefully inefficient and there is scope for a vast array of projects that can give rise to gains in efficiency, productivity, quality and range of service. Beyond being optimistic, I also find myself excited by the possibility of first rate private sector suppliers introducing and maintaining a state-of-the-art IT infrastructure for the justice system. But my model and its funding does assume three further requirements.
First of all, unless there is commitment by the government in question to a clear, 5-10 year vision of an IT-based justice system, then the projects in question simply will not attract private sector investment. If investors (banks and IT suppliers, for example) do not see where the justice system might be going with IT they will not fund the ventures. I have spoken to numerous potential investors and suppliers and know this to be true.
Second, and leaving aside the less concrete latent legal market, the real attraction for hard-nosed private investors in the justice system is surely not just in the courts but in their hinterland as well - in the wider electronic legal marketplace of lawyers (many hundreds of thousands of potential users, including the support staff as well as the practitioners). These investors will want to feel confident that they might be able to capture this wider market’s need for IT. And so, for example, they will find the entire internal communications infrastructure for justice workers, as outlined here, to be a more attractive target than, say, a mere intranet for judges. But if indeed these private sector suppliers will engage only if they can capture a big slice of the courts’ hinterland, then the collaboration and support of various professional bodies will, in turn, need to be sought.
In the past, sadly, the many legal organs and bodies that constitute the justice system have tended not to collaborate and instead have developed incompatible systems or at least systems which were not designed to operate easily with one another. The justice system has generally been treated as a collection of quite separate information systems. IT may have brought benefits to individual parts of the system but the lack of co-ordination has inhibited the realisation of benefits for the whole. Yet, to achieve the vision outlined above, collaboration as well as funding will be vital. Is it realistic to expect it? Here again, there is cause for optimism but not for the noblest of reasons. The stark reality today is that most government agencies and professional bodies of the justice system tend to struggle with IT and would welcome some clear direction, the establishment of standards and the use of common systems. If a standard solution (with shared infrastructure, service provider and even applications) could be identified and made available to their constituencies, for most top managers this would be one major headache removed at a stroke and so they would warmly welcome such initiative. Again I know this to be the case, having made various soundings.
But third, and the final requirement for my model to work, decision-makers across the justice system and the public in general would all no doubt agree that with such vital functions in the hands of private sector suppliers, it would be necessary to have some methods in place for managing the risks of outsourcing the technology of the justice system. Judges, lawyers and consumer groups, for example, have been understandably nervous about the IT of the English courts being managed by a powerful private supplier. They have rightly recognised that control over the court infrastructure in the future could mean having huge impact on the administration of justice.
There are strong arguments here, then, for the setting up of some kind of regulatory body or at least structure - to control the potentially excessive zeal or even the expansionist tendencies of the kinds of major suppliers who are likely to be involved, to determine and control pricing and service levels, to set strategy and monitor performance and generally to manage the whole process rigorously.
The individuals or bodies involved could also assume, or encourage others to assume, a further regulatory function: that of setting standards for the provision of legal information systems or services, whether as part of the electronic legal marketplace or by way of public access. The issue here, as mentioned earlier, is that users of such systems (especially non-lawyers) must be given confidence from the face of any system itself that the legal knowledge and experience embodied in it was indeed engineered by duly qualified lawyers. I worry about non-lawyers relying on legal guidance systems which have been put together by individuals with no legal training. We need, therefore, some process of certification of systems, together with regulation that sets out and requires good practice in the discipline of legal information engineering.
Bringing my various threads together now, the widespread use of information technology in the justice system, as envisaged here, can be seen to support two fundamental commitments:
- to a society in which computers and telecommunications greatly enhance all aspects of life; and
- to a justice system under which access to the law and the legal process is widely available and affordable.
Promotion of sensible investment in IT for the justice system has the further attraction of projecting an image of a forward-looking, innovative and modern legal system able to compete effectively with other jurisdictions across the world.
Despite the likely benefits, as I speak to judges and lawyers across the world, concerns are invariably expressed about the absence of overall co-ordination of the wide range of legal bodies and individuals involved in justice systems. In particular, I hear it frequently said that, although numerous applications and solutions have been proposed, there is no agreed overall direction for IT across their justice systems in the medium and long terms. At the same time, they worry that there is considerable duplication of effort across their justice systems, in research, development, requirements analysis and development activity. Worse, they confirm that the many legal organs and bodies which make up their justice systems have developed incompatible systems or at best systems which have not been designed to be interoperable.
In summary, it is apparent to many that there is therefore a need the world over not just for a strategic approach but also for greater vision, direction, leadership, collaboration, co-ordination and consultation in relation to the use of IT in justice. This is certainly the case, in my view, in the UK; although I am more confident than ever before that this is now recognised by relevant decision-makers across the profession.
It must be recognised, however, that the introduction of IT in most walks of life is both technically challenging and emotionally forbidding. Success in other industries and jurisdictions, however, suggests there is a range of well accepted non-technical factors (keys to success, it might be said) which are likely to be critical for those seeking to overhaul the justice system using IT. There is, in sum, a need for:
- a clearly articulated
vision of a justice system under which access to the law and the legal process is made far more widely available and affordable through IT;
- a centrally co-ordinated IT strategy for the entire justice system, developed in conjunction with all relevant interest groups, indicating what investment is necessary, identifying the anticipated benefits and embracing the vision of how the legal system will function with the new technologies in place;
- unambiguous and explicitly articulated support for an IT-based justice system, from relevant, senior political figures and civil servants;
- recognition that substantial financial investment is vital if the vision is to be realised and yet acknowledgement that this funding may not be sourced directly by central government;
- commitment to ongoing, well targeted research and development programmes, aimed at generating results which will ensure that the available IT is being exploited to the full and that technical innovations are being recognised and deployed as early as possible;
- acceptance that many of the most substantial and beneficial influences of IT will come from
innovation rather than
automation; and
- realisation that the Internet and the World Wide Web especially (the global information infrastructure) are fundamentally changing the nature of communications and information dissemination in society and so are likely to exert a massive influence on the development of the law.
These keys to success could provide the basis for a systematic and publicised programme for reform which in turn would help immeasurably in easing the justice system's transition into the information age.
What is actually happening in practice? Are justice systems around the world embracing IT and doing so in a strategic manner? Or do the law and its institutions remain resistant to change? While it is a little misleading to generalise, I find there is, in fact, far greater interest in IT than ever before. Whereas ten years ago, I encountered huge resistance to the introduction of IT - from lawyers, judges and officials – I now perceive in most advanced legal systems that IT is moving steadily up the agenda of decision-makers. That said, the methods of forward-planning often fall well short of the strategic approach advocated in this paper.
There are several examples of governments that, in my view, are tackling the c sensibly and systematically. In England, for example, the
civil.justice initiative, led by the Lord Chancellor’s Department is an illustration of good practice – a small team has been set up to explore possibilities and make recommendations for the role of IT in civil justice over the next five to fifteen years. A consultation paper was published in September 1998 and the final report should appear in mid 2000.[7]
Also impressive is the approach adopted in Victoria, Australia. There tn Law Reform Committee, after extensive assessment of all major international initiatives, produced a report in May 1999, entitled
Technology and the Law[8]. Of particular interest is that the report addressed the entire justice system (and not just the civil aspects) and even integrated their thinking with some of the major substantive legal issues (for example, privacy) that our legal systems must adapt to accommodate.
For the purposes of providing a case study, however, I have chosen not to focus on England or Australia but instead have selected a much smaller jurisdiction – that of Jersey – in which there are currently a number of exciting developments.
In November 1999, the Bailiff oilip Bailhache, announced ambitious plans for the development of the island’s legal information systems. Previously, he had set up the Jersey Legal Information Board, a body which he chairs and which at the outset was charged with the task of creating a legal information strategy for Jersey. The announcement in November was to publish the Board’s strategy and to launch a pilot web site.
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The Board’s general aim was to create a Vision, and set the direction for, Jersey’s legal information systems for a five year period, ending in 2004. To paraphrase the Vision, it is to help ensure that Jersey’s legal system is recognised as a global leader amongst small jurisdictions, providing outstanding service to the peoples and businesses of Jersey as well as to those who interact with the island from beyond.
To achieve the Vision, the Board recommended an approach (a "spirit") that is at once "progressive and forward-looking, exploiting emerging technologies" but that builds appropriately on the "Island’s unique historical and social status". Here, then, is an island - widely regarded as a hub for various financial services, as an attractive location for tourists and as a homeland that provides a high standard of living - that is responding proactively to global shifts being brought about by electronic commerce and electronic government.
Consistent with this, to achieve the Vision, the Board identified three key elements of the legal information strategy:
- to strengthen continuously Jersey’s position as a leading financial centre through refinement and development of the Island’s legal processes and infrastructure;
- to capitalise on and continuously develop, through intelligent exploitation of IT, the accessibility of law and legal process to the public;
- to provide an integrated legal system, that is, one that is co-ordinated, connected and unified and inclusive of the courts, legal processes, the professions and government departments.
The Board made a number of assumptions in setting the Strategy. First, it was assumed that the island generally would have an ambitious and well supported strategy for IT, the Internet and telecommunications (see later in relation to the work of Information Society Commission). Second, it was taken for granted that e-commerce would indeed burgeon, both in Jersey and around the world. Finally, it was presumed that sufficient security, data protection and other privacy measures could be put in place.
As for the main objectives of the entire initiative, these also numbered three: the enhanced reputation of Jersey; ever-improving access to justice; and ever-increasing public confidence in the legal system. It was also recognised that two important by-products would arise: increased efficiency and so reduced costs; and better productivity, fewer delays and more efficient use of manpower.
Implementation of the Strategy was given serious attention. In the end, the Board opted for a "divide and conquer" approach – divide the implementation process into a series of manageable (and, admittedly, interrelated) projects, to be conducted concurrently but each with its own allocated champion, manager, milestones, time scales, budget and business objectives. Each is to be reviewed regularly and adapted where necessary. This approach recognises that in the rapidly changing Internet-based world, it is not possible to map out all details in advance. Instead, it is vital to be able to be flexible and refine projects as circumstances require. By managing them separately, problems in one project will not necessarily destabilise the entire initiative. Had the Board opted to manage the initiative as one monolithic whole, it would have reduced its flexibility and been open to the danger of failure in one aspect of the venture prejudicing the entire programme.
There are fourteen projects in all, each grouped under one of the three key strategic elements noted earlier. Some of the projects are short term (0-1 year), others are medium term (0-3 years), while still others are long term (0-5 years). For example, there is a project devoted to creating an information map of the legal system and its connected agencies and users – this falls under the heading of creating an integrated legal system and is a short term project. Or, again, there is a project assessing the need for a preventative legal health programme on the island – this falls under the rubric of increasing accessibility of the law and is a long term project.
It is important that the legal information strategy is seen in the broader context of Jersey’s more general response to the challenges of the information age. In mid-1999, the government created its Information Society Commission to take direct responsibility for the island’s overall IT strategy. The Commission intends that Jersey should become a leader in its exploitation of information and communications technologies; that IT be integrated across all aspects of Jersey society; and that the island nurtures a range of prosperous businesses in the IT and Internet fields.
To achieve this overall vision, the Commission has set foriorities: the creation of integrated, online government; the development of an information economy wherein technology is an integral part of all business and industry; the evolution of a community that has access, through technology, to ongoing learning and training opportunities; and the establishment of a world class telecommunications infrastructure to support all aspects of the information society. Moreover, the government is giving high priority to the enactment of legislation that will support and not hinder e-commerce in Jersey.[10]
Clearly, then, Jersey is adopting a strategic approach, in respect both of its justice systems and its society more generally. Focussing now just on its legal information strategy, will it succeed? One way of answering that question is to compare Jersey’s approach with the critical success factors (for IT in justice systems) that I put forward earlier. I identified seven and have re-cast them in summary form below, together with brief assessments of Jersey’s position in respect of each.
- Is there a clearly articulated vision? There is undoubtedly such a vision for Jersey and it is one in which IT is regarded as central to offering greater access to justice.
- Is there a centrally co-ordinated IT strategy that applies across the entire justice system? Again, the answer must be positive. Indeed, such central co-ordination is at the very heart of the Jersey strategy.
- Is there recognition that substantial investment is needed and that private sector funding may be appropriate? The Jersey Legal Information Board certainly appreciates that the initiative will cost a lot, but it has not yet fully assessed the role that private sector funding might play.
- Is there support from the top? In this respect, Jersey is stronger than any jurisdiction I have encountered. Not only is the initiative being led by the Bailiff but he has assembled in his Board the key decision-makers within government, from whom considerable support is forthcoming.
- Is there commitment to ongoing research and development? Given the size of jurisdiction involved, it would not be feasible for Jersey to conduct basic research into legal information systems. However, the Board is committed to monitoring all relevant developments world-wide and exploiting existing and emerging best practice.
- Is it accepted that the main benefits will come from innovation and not just automation? The fourteen projects represent a mix of automation and innovation. Rightly, however, the emphasis on innovation is in respect of the medium to long term projects.
- Is there appreciation of just how radically the Internet will change Jersey society generally and the justice system in particular? The work of the Information Society Commission confirms that Jersey is taking the Internet very seriously indeed. Whether all members of the Legal Information Board appreciate just how radically IT will transform Jersey’s legal system over the next decade is unclear.
Overall, and certainly compared with other jurisdictions, Jersey fares well in this brief analysis. Of course, any number of human factors or technical hitches may yet intervene and de-rail part or all of Jersey’s Legal Information Strategy. But, at this stage, there can be little doubt that the vital signs are good.
I said earlier that the developments in Jersey were exciting. For my own part, the excitement lies in the relative manageability of the initiatives and so the likelihood of success. It is, quite simply, easier for smaller jurisdictions to meet the challenges of the information age. It would be possible for Jersey in months and not years, for example, to jump from its pilot legal information web site to facilities as sophisticated as anywhere in the world. The population of Jersey is akin to the number of employees in one of the world’s leading accountancy firms. The formal sources of law in Jersey can be stored on a modest number of shelves. In larger jurisdictions, with millions of people and vast libraries of materials involved, the task is more formidable. Indeed they invariably suffer from "supertanker syndrome" - the inability to change direction quickly and cheaply.
As in the private sector, the threat to the very large players in the information age is that they might be out-manoeuvred by small entrepreneurs, whose ability to make decisions quickly and respond easily to external change is better suited to the fast-moving Internet world. In that context, Jersey and other small jurisdictions may be able to gain competitive advantage over other countries.
Professor Susskind is IT adviser to the Lord Chief Justice of England and Wales. He is a Scots lawyer with a doctorate in computers and law from Oxford. He is also a Fellow of the Royal Society for Edinburgh and the British Computer Society.
[1] of what applications are possible in the law, see Susskind,
The Future of Law (Oxford University Press, paperback edition, 1998)
[2] , a White Paper published in March 1999, at www.cabinet-office.gov.uk/moderngov (update April 2014 - link now unavailable)
[3] www.open.gov.uk.lcd (update April 2014 - link now unavailable)
[4] stLII (the Australasian Legal Information Institute), at
www.austlii.edu.au, while in England there is now considerable support for such a venture (see www.lawonline.cc.ukileli.aspx (update April 2014 - link now unavailable)
[5] olumes, June 1995 and July 1996).
[6] sonal interest and acknowledge that I have had the good fortune to have acted as an external adviser to the Jersey Legal Information Board in respect of the work discussed here.
[7] www.open.gov.uk.lcd (update April 2014 - link now unavailable)
[8] at www.lawreform.org.au (update April 2014 - link now unavailable)
[9] see www.jerseylegalinfo.org (update April 2014 - now
www.jerseylaw.je
[10] on the work of the Information Society Commission, see www.jerseyisc.org (update April 2014 - link now unavailable)