July 2022

Making information from court records available to commercial organisations is not supported by the public and risks further undermining confidence in the justice system, according to ground-breaking research undertaken by Ipsos Mori for The Legal Education Foundation published today. The research, contained in a report called “Justice data matters - building a public mandate for court data use”, shows that a large percentage of people are uncomfortable about tech companies, credit rating agencies and insurance firms getting unrestricted access to court data and that an overwhelming majority support the need for robust, independent and transparent controls to ensure that use of court data delivers public benefit. There is also public concern that the application of artificial intelligence and predictive analytical tools risks worsening inequalities and unfairness in the system. The report is introduced by the Chair of the Justice Select Committee, Sir Bob Neill MP, and is published as the court modernisation programme is introducing new digital processes that are transforming the way data about court operations and users is collected and shared. In May this year, the Government announced the creation of a new repository for preserving and publishing court judgments to support the delivery of open justice in the digital age. Judgments are being published in a machine-readable format with a license to support their bulk download, opening up new opportunities for research and public benefit whilst also attracting the attention of companies keen to develop new commercial applications. The key findings of the research are:

• 80% of people said there should be limits and controls on who can use information from court records and how they can use it.
• 50% of polling respondents expressed discomfort about use of court data by tech companies credit rating agencies (42%), insurance companies (42%).
• 59% said they were comfortable with the information from court records being used to improve judges’ decision-making or reduce costs in the justice system but only 26% were comfortable with commercial companies having access to develop products and services (26%).
• 70% of participants said that they knew nothing or not very much about the information contained in court records, and 74% about who has access to court records.
• 64% felt that the government keeps the public “fairly poorly” or “very poorly” informed about how information from court records is used.
• Participants felt that access arrangements should prioritise applicants and applications that deliver proven public benefit, and that products built using court record data should be evaluated by an independent regulator.

To secure public consent for future data-sharing arrangements, TLEF is recommending policymakers:

• Understand and accommodate the public’s interest in the use of justice data.
• Prioritise transparency and good communication.
• Formalise existing governance and ensure limits, controls and regulation that are in line with the public’s expectations.
• Undertake further research to understand what ‘public interest’ looks like, and build public engagement into data governance.

Commenting on the report, TLEF's Director of Research, Dr Natalie Byrom, said:

“Improving the quality and availability of data has the real potential to increase innovation and deliver a wide range of benefits for the justice system, not least helping to support disadvantaged users and cutting delays and backlogs. “Yet we know from attempts to share NHS patient data or the reaction to the school exam results algorithm in 2020 that realising the benefits of data requires investing in building a public mandate for its use. “This research gives us an invaluable insight into the public’s views and concerns about the use of justice data, and should act as a wake-up call to those of us designing effective arrangements to oversee how data is accessed and shared in the future.”

In his foreword to the report, Sir Bob Neill MP, Chair of the Commons Justice Committee, said

“The brave new world of the digital age offers huge potential to improve outcomes, harnessing and extrapolating data to increase transparency and accountability, promote understanding, drive efficiency, and devise new pathways to strengthen access to justice… “… [The] Government will have to juggle a difficult balancing act between, on the one hand, delivering the significant and undeniable public good of digitalising court data, while on the other, avoiding the pitfalls of over-commercialisation and automation, both of which have the potential to undermine public confidence, and worse, hinder justice. “Ensuring they do not will require the setting of clear parameters, rigorously, continuously and independently monitored, on what data can be used, by whom and for what purpose. To maintain trust, this cannot be an esoteric exercise, but one in which the public are actively and genuinely consulted on, and invested in. It is why this report, the first of its kind globally, is so important.”

Reema Patel from Ipsos, and co-author of the report, said:

“This research demonstrates the public’s concern at how court records are used and particularly given the development of algorithms and predictive analytics. The public’s faith and trust in the justice system is already low and allowing commercial organisations unrestricted access to such data risks undermining this even further.”

Jennifer Gisborne of Ipsos, and co-author of the report, said:

“There was some fear that the use of court data to predict case outcomes and urge people on lower incomes to pursue other forms of resolution could “bake in” current disadvantages and prevent people from low incomes accessing their legal rights. Indeed, it was striking that while two-thirds (65%) of people earning more than £55,000 a year were comfortable with court data being used to develop low cost alternatives to litigation that figure dropped to less than half (44%) for those earning less than £20,000 a year.”

The report is being launched at a Databites event hosted by the Institute for Government (IfG) at 6pm on Wednesday 20^th July. Dr Natalie Byrom, Jennifer Gisborne and Reema Patel will be joined by Daniel Flury, Director of Access to Justice at the MoJ, Daniel Hoadley, Head of Litigation Data at Mishcon de Reya, and Imogen Parker, Associate Director at the Ada Lovelace Institute. The event will be chaired by Gavin Freeguard, of the IfG and is open to the public to attend. To attend the IfG Databites event on Wednesday 20th July at 6pm register here Download the report here.