The legal system is undergoing a revolution, adopting digital systems to keep up with other professions. But could the law ever leave paper on the shelf?
The scratching quills of legal clerks are a haunting theme in the books of Charles Dickens. Bob Cratchit sits in his dismal cell copying Scrooge's correspondence in 'A Christmas Carol'. The clerks in Bleak House endlessly reproduce letters in the interminable case of Jarndyce v Jarndyce.
Dickens never missed an opportunity to satirise the arcane Victorian legal system writing in 'The Pickwick Papers' that: "Scattered about, in various holes and corners of the Temple, are certain dark and dirty chambers, in and out of which... there may be seen constantly hurrying with bundles of papers under their arms and protruding from their pockets, an almost uninterrupted succession of lawyers' clerks." Dickens' own experience as a clerk in Gray's Inn obviously left an inky stain on his soul.
The digital copycats
Today, the legal system is undergoing a digital revolution. In 2013, the Ministry of Justice launched its Criminal Justice System Strategy and Action Plan committing to turning courtrooms paperless and fitting them with Wi-Fi. The police are adopting digital case-file management, while legal firms are investing in new technologies to stay at the forefront of their business.
Nonetheless, you can still see clerks pushing crates of documents between the chambers and courts in Lincoln's Inn. Despite the great potential of a digital system, it seems paper still cuts the mustard in certain circumstances. So what are the competing pressures in the legal system for modernisation and speed versus proof and longevity? And can the law ever hope to leave paper on the shelf for good?
Dervla Simm is an associate at Hogan Lovells International LLP, a large global law firm, where she specialises in public law. From her perspective as a newly-qualified lawyer, paper is still part and parcel of daily life. "Every case I have ever worked on that has gone to trial has used paper bundles, which contain all the evidence and the authorities relied upon by the parties, such as case law and statute. Walking around our office, there is still a fairly substantial volume of paperwork for the matters that we work on, and most people still use paper files in some way, shape or form."
In preparing cases, she finds there are subtle differences in the effectiveness of paper and digital resources. "Physical textbooks tend to give you a good overview of an issue and some key cases or statutes to consider and you can then go from there to using digital databases to look at specific cases and statutes. The major advantage of these is that they are bang up to date whereas a book will be out of date almost as soon as it is published."
In court, Simm has seen the benefits of using electronic software to produce digital trial bundles. "It allows you to make last-minute changes to bundles much more efficiently than having to remove or add pages to several copies of a physical trial bundle. It also allows for features like automatic cross-referencing," she says.
The Ministry of Justice's plan will see £160m invested in IT systems, software and kit – much of it specifically intended to overcome the limitations of paper. Wi-Fi will be installed in the majority of the nation's 500 courts to reduce adjournments caused by missing paperwork. Digital Evidence Screens will reduce the need for printing paper documents.
Justice Minister Mike Penning explains the progress made so far towards achieving the plan: "Most police forces are already transferring over 90 per cent of case files electronically to the Crown Prosecution Service (CPS), and all magistrates' courts are now able to receive digital case files from the CPS. We're now in the process of rolling-out technology to all courts, so hearings can be paper-free.
"We set out a vision for a fully digital criminal justice system, where information is captured once by a police officer responding to a crime and then flows through the system to the court stage without duplication or reworking."
Jacqui Quinn, a detective constable with the Essex Major Investigation Team, says that in her experience processes are now rapidly moving towards digitisation. "Until recently, our interviews were still recorded on cassette," she says. "We would arrange for copies of the tape to be made for the different parties. If the case came to court, then the interviews would be transcribed from tape, sent to us to check against the original recording and then submitted as an exhibit.
"Now the system is digital, with the interviews uploaded to a central server. There's often no need for the interview to be transcribed as, with the proper permission, lawyers, the police and the Crown Prosecution Service can all access the recordings, which can be played in court. It cuts down enormously on time and paper."
DC Quinn also sees advantages of working digitally that go beyond preserving trees. For frontline police, being able to give evidence remotely via video screen is a great step forward. "The Live Link system has been in place in Essex for about 12 months," she says. "It's had huge benefits saving so much time for the officers who previously had to travel to the Magistrates' court to obtain warrants or wait to give evidence."
With so much new technology in the pipeline, how can the Ministry of Justice guard against big projects that fail to deliver? Paper has its limitations, but you don't lose access to it when the Wi-Fi goes down. "We have a robust governance process in place to ensure IT programmes are delivered in the best possible way and achieve their aims," assures Mike Penning.
In addition, individual police forces are themselves innovating with technologies, testing new systems before they move into the mainstream. TrackMyCrime is an alerting system for crime victims that gives access securely to updates in their case, instead of trying to contact a particular officer by telephone.
Detective Chief Inspector Susan Wilshire'explains: "TrackMyCrime was conceived and built in-house by Avon and Somerset Constabulary. We've been using the system for more than three years, and from our surveys we are clearly able to see that all users of the service have been satisfied with it." The system is now live in three police forces, and the Ministry of Justice wants to roll out the system universally.
DC Quinn is also seeing changes in court – and she says trolley-loads of manila folders are now a less common sight. "Many of the lawyers now use laptops or tablets, which looks far more professional than being hidden behind mountains of folders. It must be easier to scroll through a case on a screen and find what you need than leafing through reams of paper. With the ever-present time constraints for legal teams to prepare to defend clients, I think digital technology is the way forward for many of us."
"Some barristers are very pro-digital," agrees Simm. "Paperless technology has been used in trials very successfully, particularly in complex cases where there are a significant number of documents." Nonetheless, physical books are also still in heavy use in the courtroom. The 'White Book' contains all the rules on civil procedure; lawyers and judges still keep this at hand in the courtroom in case issues arise around procedure.
Simm can also see the appeal of paper from a barrister's perspective, particularly if they have developed a particular method for managing trial materials. "It may be easier for some people to spread out physical notes in front of them and to have these tabbed at the right places," she says. Where it is difficult to review evidence in paper form – from a phone recording to an unwieldy Excel spreadsheet – digital is best, though.
But she points out: "Not all courtrooms are particularly well-suited to a digital-only approach and there is obviously a cost to adapting facilities."
It remains to be seen if the allotted £160m is enough to achieve the Ministry of Justice's ambitious aims, although Minister Penning says that collaborative working across many areas of the criminal justice system means the reforms will be achieved efficiently.
DC Quinn feels joined-up thinking is a huge step forward. "We're implementing a new system that is an exciting and groundbreaking development in policing, offering a 'one-stop shop', from report to court. With standardised processes, the system will allow member forces to share one quality set of data, so that policing is truly joined up. This will be implemented from the building of a case, to obtaining warrants, processing people through custody, property management and intelligence. This should cut down the need for duplication, save time for officers to enable them to have a greater presence on the street and cut down on materials used."
So is a paperless legal system really on the cards? Simm counsels: "There may not be a need to choose between digital and analogue approaches. With electronic trial-bundling systems, it is possible to print paper copies of trial documents, which could be used in parallel by those who prefer a paper-based approach. Similarly, paper-based and electronic research can work very well used together."
While there are huge benefits to digital methods, there are good reasons to think that the legal system will never go entirely paperless. While our tax discs and television licences are now virtual rather than paper-printed documents, there are some things that still have no digital substitute, and maybe never will.
The importance of a physical document couldn't be more tangible than with the Magna Carta - perhaps the UK's most significant legal manuscript. Next year marks 800 years since it was granted at Runnymede by King John. Although it was originally a peace treaty between the King and his rebel barons, Magna Carta established for the first time the principle that everybody, including the King, was subject to the law – something really worth writing down and hanging on to.
Most famously, the 39th clause gave all 'free men' the right to justice and a fair trial. Some of Magna Carta's core principles are echoed in constitutional documents around the world.
The British Library will host a new exhibition called Law, Liberty, Legacy next year to mark the Magna Carta's ongoing significance. The library's curator of medieval manuscripts, Julian Harrison, says: "At the British Library, we have two manuscripts of Magna Carta granted by King John in 1215. Both our Magna Cartas will be on display in next year's exhibition – with other key items including the American Declaration of Independence and the US Bill of Rights."
The importance of preserving the original physical artefacts is clear, Harrison says. "In the case of Magna Carta, there are corrections added in the lower margin, notes along the side and annotations on the back." These annotations may either have been omitted in error by the scribe or represent last-minute revisions.
This bears an uncanny resonance with contemporary reasons for needing a signed and sealed physical copy, as Simm explains: "Electronic contract formation may require'certain formalities to be followed, so that it is clear that the parties are agreeing to the wording of the contract as it stands at the time of signing." Perhaps King John's barons required one last concession in the treaty.
And when it comes to proving identity, paper still reigns. "Although it can't be entirely proof against fraud, there can be a lot of comfort in seeing ink on paper by way of a signature or actually seeing a physical identity document, such as a passport," says Simm. When a document needs to be notarised – signed in the presence of a lawyer who then binds the papers to seal them – there is currently no digital alternative.
In a world where high-quality digital copies of everything – including the Magna Carta – are available to us all, Harrison points out that digital longevity has yet to be truly proven. "At the British Library we have documents dating back beyond the time of Christ, written on papyrus, bone and parchment, all of which have proved incredibly durable.
"It would be interesting to see how many digital records can survive for 2,000 years."
'Magna Carta: Law, Liberty, Legacy' is at the British Library from 13 March to 1 September 2015