Original essay question / assignment brief
Critically Discuss: how digital exclusion can affect access to justice, how the formal availability of a digital court service and practical and effective access to these services are different and means to safeguards to ensure that digitization does not create unfair barriers to court access. Discuss first, then subsequently apply to Nigeria cases.
The modernisation of justice systems through digitalisation promises greater efficiency and reduced costs. However, the shift towards online court services creates a significant risk of 'digital exclusion', potentially undermining the fundamental principle of access to justice. This essay will argue that a gap exists between the formal availability of digital justice and the practical ability of all citizens to use it. It will first discuss the nature of digital exclusion and necessary safeguards in the context of England and Wales, before applying this analysis to the distinct challenges faced in Nigeria.
Digital Exclusion and Access to Justice in England and Wales
The reform programme by HM Courts & Tribunals Service (HMCTS) has aimed to move many services online, from initiating claims to attending hearings remotely. While this offers convenience for many, it creates barriers for those who are digitally excluded. Digital exclusion is not merely the lack of an internet connection; it encompasses a lack of skills to use digital services, affordability issues related to data and devices, disabilities that make standard platforms inaccessible, and a lack of trust in online systems (The Legal Education Foundation, 2022).
This highlights the crucial difference between formal and effective access. A court service may be formally available online 24/7, but it is not effectively accessible to an elderly person without a computer, an individual with learning disabilities who cannot navigate a complex website, or someone living in poverty who cannot afford broadband. This creates a two-tier justice system where the digitally literate and affluent can easily access the courts, while the most vulnerable may be unable to enforce their rights. As the Public Accounts Committee (2019) noted, HMCTS had not done enough to understand the needs of vulnerable users, risking that they would be left behind by the reforms.
Safeguards to Prevent Unfair Barriers
To ensure digitalisation does not create unfair barriers, robust safeguards are essential. The primary safeguard is the continued provision of non-digital alternatives. Paper-based routes and in-person support must remain available for those who cannot or will not use digital channels. Secondly, the government’s ‘Assisted Digital’ support programme, which provides help over the phone or in person at locations like libraries, is a necessary measure. However, the effectiveness of this support depends on it being well-publicised, adequately funded, and geographically accessible. Furthermore, under the Equality Act 2010, HMCTS has a public sector equality duty to eliminate discrimination and advance equality of opportunity. This includes making reasonable adjustments for users with disabilities, such as providing documents in alternative formats or ensuring online platforms are compatible with assistive technology. The courts have shown a willingness to intervene where access to justice is threatened, for example in cases concerning prohibitive fees, and the same principle applies to digital barriers.
Application to the Nigerian Context
The challenges of digital exclusion are magnified in Nigeria, which has also embraced virtual court proceedings, particularly following the COVID-19 pandemic. The National Judicial Council (NJC) issued guidelines for virtual hearings, which were validated by the Supreme Court in Jegede & Ors v The State (SC.633/2013). However, the gap between formal availability and effective access is far wider than in the UK.
Firstly, infrastructural deficits are severe. As noted by legal commentators like Agboola (2020), inconsistent electricity supply and the high cost and poor quality of internet data are major hurdles. A litigant may be unable to participate in a virtual hearing simply due to a power cut or because they cannot afford the data. Secondly, socio-economic inequality is stark. A significant portion of the population lives in rural areas with limited or no internet connectivity and lower levels of digital literacy compared to urban centres. Thirdly, while the Nigerian constitution guarantees a right to a fair hearing, there is not the same comprehensive statutory framework for assisted digital support or a public sector equality duty equivalent to the UK's Equality Act 2010. Consequently, placing the burden on the individual litigant or their counsel to have the right technology and skills creates a profound barrier to justice for the average Nigerian citizen. While technology offers a solution to the slow pace of justice in Nigeria, without state-funded safeguards and massive investment in infrastructure and digital literacy, it risks entrenching existing inequalities.
Conclusion
In conclusion, the digitisation of court services presents a classic dilemma of progress. While offering efficiency, it simultaneously creates a risk of digital exclusion that can severely impede access to justice. In England and Wales, the distinction between formal and effective access is a recognised problem, with safeguards like non-digital alternatives and assisted support being crucial, if imperfect, solutions. When these principles are applied to Nigeria, the challenges are shown to be far more acute due to infrastructural, economic, and social realities. The Nigerian experience underscores the universal lesson that for digital justice to be just, it must be designed around the needs of the most vulnerable users, not just the most technologically adept. Without this focus, digitalisation will create new and unfair barriers to the courthouse door.
References
Agboola, A.O. (2020) 'Virtual Court Proceedings in Nigeria: The Good, The Bad and The Ugly', Mondaq. Available at: https://www.mondaq.com/nigeria/court-procedure/987546/virtual-court-proceedings-in-nigeria-the-good-the-bad-and-the-ugly (Accessed: 15 May 2024).
Committee of Public Accounts (2019) Transforming courts and tribunals: a progress update. HC 1928. House of Commons.
Jegede & Ors v The State (SC.633/2013) (Supreme Court of Nigeria, 14 July 2020).
The Legal Education Foundation (2022) The Digital Divide: The impact on access to justice and the rule of law. London: The Legal Education Foundation.
