The digital revolution meets Dad's Army
The efficient use of technology in criminal courts presents considerable challenges for defence firms as they seek to train an ageing cohort of criminal practitioners, says Adam Makepeace
It wasn’t supposed to be like this. There is £1bn set aside for digital infrastructure projects by the Ministry of Justice. That sum is enormous when juxtaposed with the ministry’s total (and significantly reduced through austerity) budget of just over £6bn per year. One might whimsically reflect on the abject failure of a pre-austerity MoJ to make any meaningful commitment to modernising the infrastructure of justice, but no one can doubt that £1bn represents a serious commitment to achieving a perfectly understandable and worthwhile objective.
It won’t work of course. Or more accurately, the shiny new Rolls-Royce envisaged will be returned to the production line on numerous occasions. And when it is eventually capable of being driven, we will be left to reflect on whether we have ended up with a BMW 5 Series or a Ford Fiesta. There are many reasons why this is the case. We are already getting the first of the National Audit Office reports listing various wastes of money as ill-conceived projects hit the factory floor (I was personally very excited to meet the team behind the digital replacement of the duty solicitor call centre – and often wonder why I never heard from them again).
It would be churlish, particularly as a staunch advocate of the digitalisation of the criminal justice system, not to acknowledge the progress in developing some of the building blocks. There is wi-fi in court buildings. The quality has improved, although it is still hit and miss in many courts, particularly where advocates don’t have the luxury of having a settled location as they move from one part of the building to another.
The crown court digital case system is operational. It only has two major flaws that need to be resolved for it to be considered a pretty functional piece of software (non-criminal practitioners can have fun here by saying the words ‘DCS notifications’ and watching a criminal practitioner start frothing at the mouth).
The portal for the submission of crown court litigator and advocate bills is working well. To a point I will even defend the black sheep of the family, the legal aid online portal – a shocking piece of software if ever there was one, but still largely facilitating a better process of dealing with legal aid applications than its analogue predecessor.
As the software is developed – sometimes more haphazardly than might be hoped – it lays bare what is often the main reason for the failure of the successful implementation of any IT system: the failure to increase the skills of enough users to make it work.
The Crown Prosecution Service, Her Majesty’s Courts and Tribunals Service, and the Legal Aid Agency no doubt have their challenges. There are cuts to budgets, changes in working practices, and, no doubt, those resistant to change in their ranks. Yet, I am going to differentiate the position of the criminal defence community, who have not been allocated a separate training budget to try to implement new digital systems.
The notional hourly rates set in 1998 have effectively been eroded by around 40 per cent in real terms in the intervening 20 years. Additional cuts to the fixed fees paid to criminal practitioners have further reduced the working capital available to firms. The costs of new hardware and software must be dredged up from the dwindling resources.
However, it is the hidden costs of training people to use digital systems, or the alternative hidden cost of having untrained people using digital systems badly, which probably provides the biggest conundrum. This is not least because these costs are being exacerbated by one of the other afflictions of the criminal defence sector – an ageing cohort of practitioners.
As is well known, our public services are creaking. Social care, medical care, and teaching are all suffering recruitment crises of one sort or another. Even those government budgets which are not subject to cuts are often frozen – which are cuts in real terms when inflation bites and the number of people requiring access to those services within the same budget increases. There is no cause for optimism that any respite from this predicament is at hand, particularly for criminal legal aid, at the back of any queue in the minds of voters and, therefore, our political masters.
The pitiful financial rewards in the criminal defence sector compared to many other areas of legal work are driving a recruitment and retention crisis that is going to persist. More work needs to be done to evidence the issue more clearly. I genuinely believe that with proper data and analysis of the ageing profession, we will be able to plot the precise date on which the criminal defence sector will collapse completely.
For now, we know that the average age of a criminal duty solicitor is uncomfortably close to 50 years old. Also, while qualified solicitors under the age of 35 make up 35 per cent of the profession, in the criminal defence sector the under 35s make up only 8 per cent of the total number.
So, where does that leave us? We have criminal defence firms on their (financial) knees. There are various bits of software in various stages of development that criminal defence firms are supposed to adopt without regard for the additional costs of hardware or software they need to purchase as a result. There is a training gap to bridge to utilise these shiny new baubles of the criminal justice system. And it is into this maelstrom that we throw a load of old (usually) blokes steeped in a tradition of paper bundles tied up in pink ribbon and try to get them to mark up 350-page pdf documents on a computer. Guess what? It ain’t easy! Our digital revolution meets Dad’s Army.
I admit, the Dad’s Army epithet is an incontrovertibly ageist remark largely designed to draw you in. Getting lawyers to engage in the process of learning anything new is notoriously difficult – and age (or gender) does not account for much.
In the unlikely event I encounter a solicitor in their 30s in our offices, they are usually at the point of throwing their laptop out of the window because, they say, it won’t do this or that. This is usually accompanied by my mental image of throwing them out of the window because the reason they can’t log on is that despite the 864 times they have been told to log out of the system correctly, they persist in ignoring the advice, causing them and the IT support team maximum levels of irritation.
I reflect on a quote I found when studying management, which remains true many years later: ‘Because many professionals are almost always successful at what they do, they rarely experience failure. And because they have rarely failed, they have never learned how to learn from failure... [which means] their ability to learn shuts down precisely at the moment that they need it the most.’
In other words, where lawyers are concerned, you can’t teach old dogs new tricks. And it doesn’t really matter whether the dogs are old or not. And they aren’t really dogs. They’re cats.
It’s a cause of considerable puzzlement how the whole thing keeps going really. I know how, I just don’t know why. How – and in this the Dad’s Army comparison is perfectly appropriate – is an extraordinarily indomitable spirit and an enduring pride in what was the best legal system in the world. The desire to ensure justice is done and seen to be done does not yet appear to have diminished with the increased average age of the profession. However, this admirable elasticity cannot be infinite.
The prospect of a criminal defence sector in the future, equally poorly paid and without this incredible reservoir of good will, terrifies me. There is a great deal that can be achieved with technology – but not without investing in bringing people into the sector and then training them in how to use it.
Adam Makepeace is the practice director of Tuckers Solicitors