Time to listen to the public on justice data

Ensuring the public gets a say on how their data is used and shared by the justice system is essential. But it requires decision-makers to change. In this blog, Dr Jeni Tennison, Founder and Executive Director of Connected by Data explains how Justice Lab’s work can help.

Over the last decade, there have been many calls to increase access to legal judgments and decisions to strengthen our legal data infrastructure. So the creation in 2022 of Find Case Law – a new online repository hosted by The National Archives – was a huge step forward. But court data is sensitive and data sharing initiatives in other sectors, most notably health, have previously stalled due to disquiet about the use of public data for private profit.

At Connected by Data, we think the public should get a say in the ways in which data about them and that affects them gets collected, used and shared. So we were delighted to see the Justice Data Matters dialogue being run by Justice Lab, alongside Ipsos UK, to test public attitudes and views about how this should work for the information held in court records.

We were also curious to see what we could learn from that exercise, to inform both future work in the justice sector, and similar initiatives in other fields.

With Justice Lab’s support, we carried out a review of the project reports and documentation, looked at public engagement exercises in other sectors and interviewed a range of stakeholders to find out what kind of impact the Justice Data Matters dialogue had on their decision-making.

Read our report on Justice Data Matters.

We found familiar challenges. While the research generated strong and timely findings on public attitudes towards the governance of digitised court records, more needs to be done to turn its “interesting” findings into “influential” ones that have an impact on the decisions of the Ministry of Justice’s Senior Data Governance Panel about how court data gets collected, used or shared.

Involving the public in these decisions is both a practical and a cultural challenge. Many of those we interviewed questioned whether people understand the justice system enough to come to a considered view. They also questioned the representativeness of those involved in the research given the size of a dialogue and whether public involvement in these kinds of decisions would lead to better outcomes. Some didn’t see the risks of going against public expectations about how the government handles public data.

So one of the five recommendations we have made to Justice Lab to consider in developing future work is to build greater receptiveness of the justice system to the very notion of public involvement in data governance. This might include spelling out the risks of not securing a strong public mandate for court data sharing, situating public deliberation alongside other ways of engaging the public or highlighting good practices adopted in other sectors such as health and local government.

We also found that decisions about data range from large-scale questions about the future of open justice in an online world – through exploring potential futures for data and AI in the justice sector to the governance of bulk access to judgment data.

While all these are worthy of exploration with the public, we think there is a pressing need to find ways to include the public in operational decision-making about who can access this data and for what purpose, given current commercial ambitions to create predictive artificial intelligence tools. This could involve mini-publics (small groups selected to be broadly representative of the general population or affected communities) being used to articulate general principles for dealing with requests alongside members of the public being directly involved in making or reviewing decisions about specific requests.

Our other recommendations are lessons that could equally apply to getting the public involved in data decisions in other sectors. We recommend:

• Incorporating communications and influencing strategies around public dialogues, so the outcomes from deliberation more effectively impact on intended audiences
• Developing robust background materials that explain key concepts (in this case of open justice and the use of data in the justice system) to support future public engagement and to address gaps in the public’s understanding of complex justice issues and concepts
• Over time, building a constantly refreshing panel of members of the public that could be easily drawn from for consultation and deliberation.

Public participation in decisions related to the collection, access and use of data is widely recognised amongst data governance practitioners as key to both better outcomes and strengthening public trust. It is becoming standard practice in health but most other sectors are lagging behind. Justice Lab deserves huge credit for investing in its Justice Data Matters research and accelerating this trend in the justice sector.

But too often, as here, public voice is only brought into the conversation by civil society groups that lack decision-making power and are therefore easy to ignore. The first step remains the hardest. Does the government care enough about what the public thinks to listen to it?