By: Judge Dory Reiling
Judge Dory Reiling is a former judge of the Amsterdam District Court in the Netherlands. Judge Reiling has also worked with the Council of Europe on issues related to artificial intelligence. All opinions expressed in this piece are solely those of the author as an external expert and do not necessarily reflect the official position of UNODC.
For courts and judges, both information technology (IT) and artificial intelligence (AI) offer new opportunities, but they also entail major new challenges. The most important challenge is to the governing of judiciaries. Governance, the way decisions are taken and by whom, is mainly determined by two factors: judicial independence and case processing. Judiciaries are geared toward judicial independence. Although procedures vary from country to country, in most situations governance mechanisms will leave room for individual judges to decide their cases on the merits of the cases. Judiciaries process cases, so they are also mainly production organizations, as they work to process court cases as efficiently as possible. Both these elements reduce the opportunities for innovation. From this perspective, let's take a look at the new challenges IT and AI pose for courts and judiciaries.
The Netherlands has experience with in-house IT development. Like most other judiciaries, the Netherlands Judiciary uses many different kinds of information technology. Case management, office technology, multiple websites with information, news and case law (more than 50,000 judgments annually), court management tools, an intranet, email and some e-filing and digital procedures. All this is managed by the judiciary's own IT organization, under the Council for the Judiciary of the Netherlands.
An important reason for choosing in-house development is continuity in knowledge: keeping the experience from developing new IT inside the judiciary. However, there is a more important reason that is not always recognized. IT has reached a level of development that includes all work processes. It is no longer a tool; it is becoming an environment. Because IT includes the primary judicial work processes, the choice was to do that under judicial control.
The way to achieve this was to mix in-house expertise with individually contracted specialized experts. The methodology of choice was agile product development, with judges as product owners. This ensured strong judicial involvement in the software development.
One lesson to take away from this experience so far is that IT development is not the most difficult issue. The most difficult issue is governance: changing work processes and implementing digital procedures require strong decision-making processes geared toward innovation. Most judiciaries are geared to be production organizations: they process cases. For going digital, this governance setup needs to change.
There are also some options for innovation to be gleaned from the experience in the Netherlands. Decisive factors here are the need for changes in the regulations and the length of the procedure to be digitized. Lessons learned include:
In order to ensure the responsible use of artificial intelligence (AI) in compliance with the European Convention on Human Rights and the Convention on the Protection of Personal Data, to help improve the predictability of the application of the law and the consistency of court decisions and to prevent discrimination, The European Commission for the efficiency of justice (CEPEJ ) decided to draw up the Ethical Principles on the Use of AI in the Administration of Justice.
In June 2018, CEPEJ held a session with court IT experts, legal experts and experts on the anthropological and philosophical aspects of the emergence of AI. CEPEJ also conducted a survey of the state of use of AI in the judiciaries, which showed that that use is still very low. Experts produced reports on operating characteristics, legal reasoning, data protection and "predictive" justice tools, which are included in the final reports as annexes.
The five principles in the final document are:
The Ethical Principles, therefore, also pose some new challenges for judiciaries. The Principles need to be operationalized, in regulations as well as in organizations. This is going to be a big challenge for judiciaries and particularly their governance systems. Judiciaries will need to safeguard the integrity of their own data and their information systems. Digitization brings many benefits, but the transition presents challenges, including how to best adhere to international ethical standards.