Practice and Procedure

Defence practitioner concerns over paperless working still need to be allayed.

PUBLISHED October 27, 2011

As many defence practitioners will be aware, the Crown Prosecution Service is rapidly moving forward with its plans to achieve a paperless office through its Transforming Through Technology (T3) project. The impetus to achieve this ?holy grail? of the paperless office - first spoken of in the commercial world in an interview given to Business Week on 30 June 1975 and yet to be achieved - comes from the impending spending cuts which the CPS faces.

The aim of greater digitalised working and the financial savings that this can bring are clearly to be welcomed. Defence practitioners, who in large part have for many years been embracing technological advances to increase their efficiency and save costs to their businesses, will recognise the laudable aims of this project. They will also, however, immediately recognise the huge scale of the task that the CPS has set itself. Moreover, there will be considerable concerns that in the rush to save money those savings may come not from reducing costs but from transferring them from the prosecuting agencies to the defence.

In recent months there has been increasing engagement with the defence community in the T3 project and a national T3 Practitioners Group has been set up on which there is defence representation from the Law Society and various practitioner groups. At these meetings, and others held regionally, major areas of concern have been identified. While the problems are acknowledged, no pause is being allowed in the progress of the project to resolve them. We are asked to take it as a matter of faith that they will be resolved in time.

I do not share that optimistic view. The issues that have to be addressed are fundamental to the progress of the project. Defence practitioners would be putting themselves at great financial risk if they were to sign up to this project until these issues have properly been resolved.

Of many outstanding issues, perhaps the most significant relates to secure email - the linchpin of the whole project. The present secure email system is not fit for purpose. Although much vaunted by the CPS, secure email has a number of restrictions which make it highly impractical for comprehensive use by the defence community. Secure email is governed by a Ministry of Justice protocol, which places many restrictions on its use. Examples include the use of cloud-based technology; the use of mobile handheld devices for receiving secure email; and the forward transmission of material received by secure email other than by secure email itself.

These restrictions mean that, at a time when many small and medium-sized firms are being told that the most cost-efficient method of server technology is through a cloud-based system, the secure email protocol prohibits this. It means that practitioners will not be able to receive secure email at court on laptops or handheld devices. This is not an issue for the CPS, which intends to access its own secure network from court but defence practitioners understandably will not have access to this.

Further restrictions on secure email will mean that if you are sent a prosecution document, for example an expert?s report, you are not able to forward that report to your own expert unless they also have secure email. You will not be able to forward material to your own client.

These are fundamental issues which need to be resolved before secure email can be of any significant benefit to defence practitioners, and before defence practitioners can be expected to sign up to the project. The T3 project envisages the service of all prosecution material by secure email. Printed copies of documents will no longer be available. As defence practitioners know, this will raise very significant issues when it comes to payment in the Crown court. Although the matter is being addressed, it has yet to be finalised what the Legal Services Commission will accept as counting towards the PPE page count of material served by electronic means.

No one has yet addressed the issue of solicitor access to the custody areas in courts with laptops or tablets. If material is to be served and stored digitally, then the defence must be able to take that material into the cells to obtain instructions from clients in custody. It is not acceptable to require the defence to print out copies of this material for their clients in custody. This would simply be a transference of cost from the CPS to the defence. How material is served on unrepresented defendants has also still to be resolved.

There remain concerns about the adequacy of the necessary infrastructure for the proper implementation of the T3 project. Many courts do not have enough power points to allow practitioners to use electronic devices. If material is to be supplied electronically, it is essential that all courts have free Wi-Fi access available for practitioners. Secure storage facilities should be provided.

The capital cost of the extra hardware and software required by CPS staff will be paid for from the public purse. Will the LSC offer to help defence solicitors purchase this kit? If there are savings to be made to the public purse from embracing this project, then surely these benefits should be applied to both parties in criminal cases. A transfer of funds from the CPS to the LSC to allow for the payment of a grant to defence practices to implement the necessary changes would enable the whole criminal justice community to fully embrace digital working. This, too, needs resolution in advance of the defence community embracing the project.

Defence practitioners are not luddites, nor are they fools. Embracing technology where that technology leads to greater efficiency and cost savings is something to be welcomed. However, the advantages to the defence community of agreeing to work with the T3 project, in its present form, are not yet evident. The Law Society and practitioner groups will continue to lobby for these matters to be resolved and for an acceptable scheme to be made available. Until then, I would caution defence ?practitioners against signing up to this project.