The Rise of Digital Justice: Courtroom Technology, Public Participation and Access to Justice
| Date | 01 November 2017 |
| Published date | 01 November 2017 |
| DOI | http://doi.org/10.1111/1468-2230.12300 |
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THE
MODERN LAW REVIEW
Volume 80 November 2017 No. 6
The Rise of Digital Justice: Courtroom Technology,
Public Participation and Access to Justice
Jane Donoghue∗
This article addresses a little discussed yet fundamentally important aspect of legal techno-
logical transformation: the rise of digital justice in the cour troom. Against the backdrop of
the government’s cur rent programme of digital court modernisation in England and Wales, it
examines the implications of advances in courtroom technology for fair and equitable public
participation, and access to justice. The article contends that legal reforms have omitted any
detailed consideration of the type and quality of citizen participation in newly digitised court
processes which have fundamental implications for the legitimacy and substantive outcomes
of court-based processes; and for enhancing democratic procedure through improved access
to justice. It is argued that although digital court tools and systems offer great promise for
enhancing efficiency, participation and accessibility, they simultaneously have the potential to
amplify the scope for injustice, and to attenuate central principles of the legal system, including
somewhat paradoxically, access to justice.
INTRODUCTION
In an article published in this journal two decades ago, Robin Widdison posed
the question: ‘What will legal practice be like a quarter of a century from now?’1
In attempting to predict how information technology (IT) would transform the
way that future lawyers practice law, Widdison concluded that ‘law practice will
be subsumed and metamorphosed by the information revolution’, ultimately
changing the legal landscape ‘out of all recognition’.2Acknowledging that
prediction is ‘a risky business’, Widdison nonetheless accurately identified, with
an impressive degree of foresight, the introduction of numerous technological
innovations which are now beginning to per manently alter the paradigm of
legal praxis, including the adoption of electronic documentation, digital case
files and case management systems; the implementation of audio/video links
and conferencing; the development of online plea systems; and the growth of
∗Professor of Criminology, College of Law and Cr iminology, Swansea University. Sincere thanks
are due to Nicola Padfield, John Martyn Chamberlain and the two anonymous reviewers for their
invaluable comments on an earlier draft of this article.
1 R. Widdison, ‘Electronic Law Practice: An Exercisein Legal Futurology’ (1997) 60 MLR 143.
2ibid, 162.
C2017 The Author. The Modern Law Review C2017 The Modern Law Review Limited. (2017) 80(6) MLR 995–1025
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
The Rise of Digital Justice
‘virtual’ legal advice.3Nearly a quarter of a century has passed since Widdison’s
article was published and the legal profession stands at a precipice. Rapid
technological advancement in recent years has meant that law is at a pivotal
point in its development: the legal profession is changing as it tries to keep pace
with new technologies and devices that empower and enable and yet which
can also threaten and divide. Digital technologies are colonising both civil and
criminal legal procedure, resulting in a radical transfiguration of evidential,
procedural and documentation mechanisms.4The automation of high volume,
low level processes and the increasing prevalence of digital applications and
artificial intelligence (AI) raises critical issues concerning the use of data, pr ivacy,
digital intellectual property, security, and human rights and ethics compliance
in digital settings.
This article addresses a little discussed yet fundamentally important aspect of
legal technological transformation: the rise of dig ital justice in the courtroom.
While there have been a number of influential studies on the impact of tech-
nology more generally upon the future of the legal profession,5and much has
been written in recent years about the legal regulation of new technologies such
as nanotechnology, robotics, information and communications technologies,6
far less attention has been devoted to examining the significant ramifications
of technology specifically for courtroom practices and procedures and there
is a scarcity of literature which seeks to theorise what the consequences of
digital courtroom innovations may be for enhancing public participation in
the administration of justice, or the impact of technology upon access to jus-
tice, particularly for historically marginalised and disempowered populations.
Indeed, Widdison frames his analysis of the future of legal technology around
the concept of ‘professional ethos’ to explain how IT advances might alter and
fragment existing professional organisational structures, rather than seeking to
develop a theoretical approach to understanding technology in the context of
fundamental legal principles. Elsewhere, analyses of courtroom IT have tended
to focus upon specific, individual innovations which have been examined in
isolated silos. In this regard, it is important to recognise that although advances
in courtroom technology have simultaneously proliferated internationally, a
comparable situation is to be found in other jurisdictions where attempts to
theorise courtroom technology have been limited. In the United States, for
example, ‘very little interest and attention has been given in literature to the
3 As is to be expected given the difficulties inherent in predicting technological futurology, not all
of Widdison’s predictions were entirely accurate and he understandably he did not foresee the
formidable impact of social media, the development of litigation digital applications (‘apps’), or
the increasing prevalence of digital evidence presentation resultingfrom the advent of ‘big data’.
4 E. Murphy, ‘Databases, Doctrine, and Constitutional Criminal Procedure’ (2010) 37 Fordham
Urban Law Journal 803.
5 Most notably, R. E. Susskind, The Future of Law (Oxford: OUP, 1996); R. E. Susskind, The
End of Lawyers? Rethinking the Nature of Legal Services (Oxford: OUP, 2010); R. E. Susskind,
Tomorrow’s Lawyers: An Introduction to Your Future (Oxford: OUP, 2013); see also, B. Simpson,
‘Algorithms or advocacy: does the legal profession have a future in a digital world?’ (2016)
25 Information and Communications Technology Law 50; H. Sommerlad et al (eds), The Futures of
Legal Education and the Legal Profession (London: Bloomsbury Publishing, 2015); S. I. Friedland,
‘Adaptive Strategies for the Future of Legal Education’ (2015) 61 Loyola Law Review 211.
6R.Brownsword,Rights, Regulation and the Technological Revolution (Oxford: OUP, 2008).
996 C2017 The Author. The Modern Law Review C2017 The Modern Law Review Limited.
(2017) 80(6) MLR 995–1025
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