‘Justice system data’: a comparative study (A report examining how Canada, Australia and Ireland manage the data and information that is generated by their justice systems) by Judith Townend and Cassandra Wiener for The Legal Education Foundation (TLEF) analyses
the ways in which ‘justice system data’ – that is the information generated by the process of justice – is managed in three countries: Australia, Canada and Ireland. It considers how data-sharing methods are perceived to relate to judicial independence, innovation, and public understanding and confidence in the justice system. ... the report builds on previous TLEF work on justice data in England and Wales, and aims to inform UK-based policy making as well as knowledge exchange in international legal and technology networks.
The research
identified that:
• There is a common understanding and definition of ‘justice system’ data types and access in the three case studies of Australia, Canada and Ireland, though in all contexts justice data management has evolved messily over time (with emergency measures during the COVID-19 period) rather than as the result of purposive design.
• Improved access to justice data is perceived by legal, academic and NGO stakeholders to help deliver access to justice, and protect important principles of open justice, judicial independence and public understanding of the law, and is part of these countries’ work to meet access to justice policy objectives, including UN Sustainable Development Goal 16.
• In opening up justice data, challenges and tensions across the jurisdictions were also exposed: the impact of legacy practices; the under-investment and decentralised approach to technological reform; a data deficit for user and case experience; a tension between privacy and transparency in the provision of court records containing personal data; and a lack of accountability measures for the management of justice system data.
• There is limited robust empirical data with which to measure the impact of justice sharing and access methods against desirable outcomes for a justice system.
In light of the findings, we argue that there is a need for:
• Clearly presented policies, shared publicly, on the differing roles for executive, court service, judiciary and any third-party providers in the management of justice system data.
• Accountability mechanisms for access to justice data: i.e. appropriate routes of application and appeal for accessing justice data that is not readily available in the public domain.
• Consideration of public and court user views and experiences in the design of justice system data processes (especially with regard to the use of personal data).
• Detailed measurement of the impact of data sharing practices on outcomes of the justice system.
The authors comment
Contemporary justice systems are complex and messy as a result of anachronistic structures and rules that have evolved since the medieval period; they have not been neatly designed to fulfil specific purposes and protect individual or collective interests (even if these purposes and interests are now cemented and protected in national and international law). Inevitably, this means ‘justice system data’ – that is the information generated by the process of justice – is equally complex and messy, with a hybrid of policies and laws governing its collection, storage and dissemination. The transition from analogue and paper-based systems to digital technological methods, with some aspects fast-tracked during the COVID-19 pandemic period, has only further complicated the picture. Despite the importance of reliable data for the purposes of understanding law and legal process, for the development of evidence-based justice policy, and for meeting the objectives of fair and open justice, the theory and practice of justice system data management are rarely the primary focus of academic and policy attention, and often incidental to a broader discussion about an aspect of law. There are, of course, notable exceptions. A previous report on digital justice in England and Wales by The Legal Education Foundation (TLEF) identified data needs within the English justice system and urged the creation of a robust strategy for data collection, analysis and sharing, with 29 specific recommendations, which HM Courts and Tribunals Service (HMCTS) responded to in October 2020. More recently, the Civil Justice Council/TLEF review of the use of remote civil courts during the COVID-19 pandemic highlighted the data gaps on civil justice, and re-iterated the need for the expansion of data collection, and investment in robust data systems.
In order to further explore this area, we were commissioned by TLEF as part of its ‘Smarter Justice’ programme, which includes developing a Justice Lab UK, to undertake a short-term comparative study considering the ways in which justice system data is managed in different countries, focussing on English-speaking common law jurisdictions. The overall objectives of this study were to consider how current approaches and past experiences can inform the development of justice data systems in other contexts. The research took place from May–August 2020, conducted remotely during the COVID-19 restricted period.
We contend that while part of a broader agenda on open data and access to administrative data, justice system data deserves its own particular and special treatment, owing to the particular constitutional principles underpinning its generation and use, such as a separation of powers between judiciary and executive.
Within the scope of this project we cannot promise a complete overview of each of the chosen countries; as we peeled back the layers of the chosen jurisdiction, we discovered further layers of complexity and idiosyncrasy, as we attempted to understand the handling of justice system data within the federal or national level courts, the state or province level courts, and within these, between different court types and jurisdictions (civil, criminal, family, tribunal). Even within a court ‘type’ in a single regional jurisdiction, there may be differences in practice and policy. We have, however, attempted to set out a more thorough comparative review than currently exists in the academic and policy literature. Our review focuses on Australia, Canada and Ireland, with some reference to other global and national initiatives. Our goal is to inform policy development in England and Wales and beyond but as one of our interviewees advised, we do not attempt to set universal recommendations or standards at this point. Instead we focus on evidencing and explaining the principles and practice of existing systems and drawing conclusions on what has and has not worked in the regions we studied, highlighting good practice examples. We hope these conclusions can be drawn upon to inform future justice data governance in England and Wales, where some of the recommendations of ‘Digital Justice: HMCTS Data Strategy and Delivering Access to Justice’ (Byrom, 2019) are already being progressed, as well as to assist initiatives in other countries and at a global comparative level.
1.2 The brief and our approach
Our brief asked us to consider:
1 How other countries define ‘justice system data’. What are the categories they use to describe the different types of data generated by the justice system? This includes information like case files, judgments, management information, tribunal decisions etc.
2 What arrangements are in place for making this data available to different stakeholders (public/press/researchers/private sector) and how are they financed? To what extent have other countries delegated the function of data dissemination to the private sector?
3 Where have other countries placed different types of data on the open/shared/closed spectrum? Are these arrangements time limited, e.g. closed until x date?
4 What have been the benefits and drawbacks of the approaches developed in these countries? We are particularly interested in identifying robust research that is capable of demonstrating a link between the types of sharing practices adopted and: a. judicial independence b. public understanding of the law c. public confidence in the justice system d. innovation e. the attractiveness of the legal system as a forum for resolving disputes.
In order to answer these questions, via literature review and remote interviews, we have structured our report as follows. Following this introduction, which includes a description of the methodology of the report, Chapter 2 gives more detailed context for the report, providing a definition of ‘justice system data’; details of global initiatives on improving justice data; the risks and safeguards for managing justice data; and an overview of justice system data in England and Wales. Chapters 3, 4 and 5 describe our main case studies, the justice systems in Australia, Canada and Ireland, considering the questions above for selected courts in each jurisdiction, and other relevant issues that emerged in the course of the research. Chapter 6 offers a comparative and critical analysis of all three case studies, with some reference to other jurisdictions, including England and Wales; and makes some general conclusions and recommendations of good practice for policymaking and practice in this area (while not attempting to draft universal standards). The Appendices offer a list of key resources and information about our interviewees.
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