Transparency, inclusion and trust - crucial considerations when law meets technology

Weightmans Innovation Manager Catriona Wolfenden reflects on the importance of trust in both law and technology

Weightmans Innovation Manager Catriona Wolfenden reflects on the importance of trust in both law and technology, after attending the ‘Online Dispute Resolution Justice Re-Imagined’ Conference…

Lord Justice Briggs opined that justice is not just about the application of black letter law (which robots could probably do in the future); it is also about equity and mercy, allowing the common law to be moulded to reflect society. In an increasingly online world we need to consider how, in the future, we want justice to interact with us.  So started the ‘Online Dispute Resolution Justice Re-Imagined’ Conference. Delegates heard about many varied applications of online dispute resolution from around the world and at different stages of deployment, but two key themes emerged from the discussions:

1. Transparency in a justice system (be that civil or criminal) is vital.  First year law students are taught that justice must not only be done, but also be seen to be done. This is why there are very limited circumstances in which criminal proceedings can take place behind closed doors; anyone can go and sit in the back of a court and see ‘justice’ before their very eyes.  How do we translate this in an online world? 

Live streaming of hearings may go some way to alleviating this concern, but what happens if we have AI making decisions and fewer hearings?  The RTA and EL/PL portals are good examples of how you can have a dispute resolution system that does not always need a hearing for a successful conclusion. Is it the prospect of AI deciding cases that might be the greatest inhibitor to advances in online dispute resolution, over and above providing a digital platform?  If we don’t know what AI is doing, how can we be sure that ‘justice’ is being applied, how can we be sure it reflects the barometer of society?  Flip this over though – statistics on the diversity of the judiciary do not make great reading, are we content that the barometer of society is reflected now, or are we just averse to change? If the decision reasoning of the AI is explainable, are our concerns alleviated?
 
2. An online dispute system must be non-exclusionary. This is in terms of interaction with existing justice systems, where there must be comity between both systems and in terms of ensuring that people can understand and access the systems. We heard from Caroline Sheppard, the Chief Adjudicator of the Traffic Penalty Tribunal who talked about the steps that had been taken to assist people with the digital aspects of their system, so that their experience was actually better than if there was no digital system. There was talk of parallel paper systems and apps to make systems accessible. To some extent, this issue may turn out to be a relatively short lived inhibitor to online dispute resolution as each generation becomes more tech savvy, even nurseries have basic computers and platforms such as Agree-Online which are specifically designed to settle children’s digital disputes.  

At the heart of both of the key themes is the concept of trust – both in the technology and our ability to use it. Trust is required as an input condition in many systems and stimulates support where there is a potential risk; the structure of the system in which trust operates may be such that confidence is eroded, which in turn undermines trust. Maintaining trust by promoting accountability can be achieved through legislation which seeks to be answerable to the electorate in protecting public values, public interests and providing scrutiny of behaviour.  Legislation and regulation, backed up with mechanisms to ensure compliance, provide a starting point for trustworthy behaviour provided that the framework they operate in is acceptable to the lay public - and penalties for non compliance are integrated within the legislative framework. In essence, they aim to provide greater clarity and accountability. Systemic transparency is likely to be necessary in order to ensure and promote trust in online and AI based legal systems.  As we look at new technology we must ensure that we don’t take trust for granted. 

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