Technology and Law Policy Commission: Algorithms in the Justice System

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By Dr Tom Smith and Ed Johnston

Technology and Law Policy Commission: Algorithms in the Justice System

Wales Evidence Session, 7 February 2019

This event had 3 different panels speaking for about 30 minutes each regarding the use of algorithms in the justice system. The talks were a mix of practical and managerial algorithms. Both had aspects that were interesting to our teaching and research, as well as elements that were irrelevant.

The commission opened by making the point that we are not asking the correct questions concerning the use of algorithms in the justice system. We are not asking what ‘values’ underpin their usage (for example, issues like transparency and ‘explainability’). All panellists agreed that this is a growth area but the swift growth causes a number of concerns. Firstly, how do we define the ‘values’ that need to underpin the tech and its usage in law?

A major concern rests on the fact that algorithms are often opaque systems for decision making and there is a problem with ‘explainability’ (i.e. we cannot extract from machine learning the rationale for why the algorithm arrived at a particular conclusion). Arguably, this raises a red flag for lawyers in terms of justification of decisions to those affected, and especially for the potential conflict between Freedom of Expression and the use of AI to tackle forms of extremism in England and Wales.

There is a further problem with the lack of emotional intelligence associated with the use of AI. This raises questions about the lack discretion afforded to humans in legal systems when allowing machine learning to make decisions. Much of modern policing is done by using discretionary powers – a concern is the potential for the use of AI to allow the criminal justice ‘net’ to widen disproportionately and without adequate safeguarding. Additionally, if there is an element of human discretion operating alongside AI, who do we defer to in making final decisions (a classic man vs. machine argument)? This raises questions about the risk of humans delegating responsibility (and thus accountability) to machines.

As well as these elements, we need to answer questions concerning data control. What happens to the data that is generated by machine learning?

A further problem exists concerning the language being unpicked by the AI. We have many different languages spoken/written in society. Coupled with this we have local spoken/written language. Finally, we have code spoken by offenders to avoid detection on social media (for example in organised dogfighting). The dogfighting article suggests that there is an informal code spoken on social media to alert likeminded individuals to events and dogs for sale – how can the AI pick up such information? This would require continuous human input and updating to ensure that those targeting by such technologies cannot evade justice by ‘gaming’ such systems.

Ed asked a question about the Harm Assessment Risk Tool (HART) being used by Durham Constabulary but sadly it was not answered. I wonder what risks exist in using an algorithm to make bail decisions post-conviction. However, with the advent of the Released under Investigation status used frequently by police officers and the reduction of the use bail, this is perhaps not an issue (however, that feels very much like fudging the numbers to appear successful – this new unregulated status may in fact be a retrograde step which undermines attempts to reduce unnecessary use of bail). 

There are positives to the technology. The Facial Recognition software described by a Police Inspector appeared to be very beneficial. There are some 12 million images in the Police National Database and the average officer will upload 30 new images per day. Previously, there would be a 12 day wait to try and identify a suspect from the database. The new software will provide a result in 5 minutes. This is of particular benefit when tackling crowd disorder at sporting events. Previously, officers would have to stick their heads out the window of a police van to identify someone. Now the software can scan all individuals in a crowd. Whilst this has clear practical benefit there was little regard for the potential breach of civil liberties or discussion about training for officers on responsible and effective use.

Finally, the panel spoke of the need for regulation and the panels tried to centre in on accountability, oversight and transparency. We need to know a) how will the use be regulated (soft regulation or by legislation) or b) what happens if the evidence is wrongly used. We can exclude evidence under s.78 PACE 1984 currently, but does this broad protection go far enough?

Lots of questions, not many answers. It’s clear that this is a ‘sexy’ and attractive area of law, which is being pioneered primarily in other jurisdictions. Whilst the desire not to be left behind and to utilise technology effectively in the digital age is understandable, this area also potentially poses great danger. The use needs to be carefully considered from a protective, due process standpoint rather than focusing solely on the practical benefits of the technology to crime control and enforcement.

SLSA Seminar Series: The Perennial Problem of Disclosure – A way forward?

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By Ed Johnston

Ed Johnston has recently been award £1,500 from the annual Socio-Legal Scholars Association’s Annual Seminar Series. Ed is currently organising a one-day conference at UWE Bristol Law School on the topic “The Perennial Problem of Disclosure – A way forward?” This one day event will take place on Wednesday 3 July 2019.

Prior to the mid-1960s, there was no requirement for defence disclosure. Between 1967 and 1996 the defence only had to disclose alibi and expert evidence. The prosecution would disclose elements of their case to ensure ‘equality of arms’. The issue of balance between both parties is long-running, since the prosecution have historically commanded significant resources to investigate and prosecute crimes (in comparison to the defence). The system of disclosure is a fundamental element of fair trial procedure as it helps to compensate for this natural imbalance. However, with the advent of the defence case statement under the Criminal Procedure and Investigations Act (CPIA) 1996, both the underlying culture and systemic purpose of disclosure experienced a seismic shift.

In the following two decades, the general focus of criminal justice policy has been toward prosecuting cases in an efficient manner; the defence case statement forms a pivotal aspect of this. The disclosure regime was extended by the Criminal Procedure Rules (CrimPR) which now mean that disclosure, albeit operating under the guise of ‘case management,’ is essentially mandatory in summary trials. In contrast, under the CPIA 1996, summary trials were only the subject of a voluntary disclosure regime. Despite the insistence (via both judicial guidance and executive policy making) on the need for a culture of early disclosure and co-operative working to permeate modern criminal procedure, the post-CPIA 1996 regime is marked by practical failings and (arguably) ideological contradictions. This has generated significant and sustained criticism, and led to miscarriage of justices as a result of an inadequate disclosure system and culture.

In late 2017 and early 2018, a series of criminal cases collapsed after significant police failures in managing disclosure of key evidence. The first and most widely reported of these was the case of Liam Allan, who was accused of rape and released on bail for two years, before vital undisclosed evidence emerged days into his trial. In the wake of this, the CPS, Metropolitan Police, a Parliamentary Select Committee, and the Government have engaged in reviews of the effectiveness and fairness of the current disclosure regime in criminal proceedings. As mentioned above, this is not new; the modern system of disclosure has been lamented almost since its inception in 1996. There have been a number of critical examinations, including by academics Plotikoff and Woolfson (A Fair Balance in 2001); by Lord Justice Gross (A Review of disclosure in criminal proceedings in 2011); and by HMCPSI and HMIC jointly (Making It Fair in 2017) and the Mouncher Review (also in 2017).

Liam Allan speaking at the First Annual Criminal Justice Research Unit lecture at UWE Bristol in December 2018.

In 2018, two further reviews followed in the wake of the Allan case and others (including those of Samson Makele and Oliver Mears): the Justice Committee published Disclosure of evidence in criminal cases inquiry in July, and finally the Attorney General published a Review of the efficiency and effectiveness of disclosure in the criminal justice system in November. The latter review concluded that the ‘system is not working effectively or efficiently as it should’ and identified above all the need for a change in culture (rather than law) was needed. There is an obvious appetite for improving the function of the disclosure regime; yet, despite the numerous reviews and investigation, it remains fundamentally flawed and this represents a risk of causing further miscarriages of justice (which may or may not be detected). Speaking in June 2018, the former DPP, Lord Macdonald, suggested that it was ‘inevitable’ that innocent defendants had been imprisoned as a result of disclosure not being readily available to defence lawyers (a claim the then DPP, Alison Saunders, was hesitant to echo). Arguably, the current crisis in disclosure represents one of the most significant and impactful problems in 21st Century criminal justice.

This one day conference in July 2019 seeks to bring together academic and practitioner perspectives to examine potential avenues for reform and improvement. If you would like to attend this event, please register online here.

The confirmed speakers for the conference are: 

Anthony Edwards: “Contemporary issues with disclosure in the police station.”

Anthony is a criminal defence solicitor who specialises in Corruption, Fraud and Major Crime. He is widely acknowledged as one of the leading authorities on Police Station law and he has published widely in the areas of criminal procedure.

Dr. Abenaa Owusu-Bempah: “Reconsidering defence disclosure.”

Dr. Owusu-Bempah is an Assistant Professor of Law at the London School of Economics. Her research interests focus on criminal procedure and fair trial rights. Her recent book, Defendant Participation in the Criminal Process, examines how the disclosure provisions of the CrimPR compel the defendant to actively participate in their own criminal trial. The book examines how the adversarial criminal process can be effected by essentially non-adversarial provisions.

Dr. Hannah Quirk: “ Uncovering disclosure errors: Appeals and the CCRC.”

Dr. Quirk is a reader in Criminal Law at Kings College London. Her research interests lie in wrongful convictions and sentences. She has published extensively on the erosion of the Right to Silence and wrongful convictions.

Please see our event page for further details or click here to sign up now.

Catherine Easton (editor of the European Journal of Current Legal Issues) has been commissioned a Special Edition of the journal, which will focus on the papers presented at the seminar. This proposal has been accepted and the edition will be published in the winter of 2019.

Law Student Research Report on Rape and Sexual Assault

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On 20th March, a student authored research report was presented to Rowan Miller, who is CEO of SARSAS (Somerset & Avon Rape and Sexual Abuse Support). The authors are all undergraduates on the LL.B Sexual Offences and Offending: Criminal Justice Responses module. Each year, student volunteers from the module research and write a report for SARSAS staff which explains topical legal policy issues and reforms. During the presentation, Rowan noted how useful and impactful the report will be for her staff and that previous research reports had been widely read by people from across the sector.

The report is an excellent example of how students, working with academic colleagues, can engage with the world outside of UWE and apply specialist, socially useful knowledge to the work of local organisations.

The report authors are: Karishma Boodhun, Charlie Ellis, Abigail Laborero, Hayley Lewis, Molly Mackenzie, Momin Mohamed and Annabelle White.

The report was edited and fact checked by Phil Rumney, Ed Johnston and Anneleise Williams.

UWE’s Centre for Applied Legal Research to be well represented at the SLSA Conference 2018

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The Annual Conference of the Socio-Legal Scholars Association is one of the high points of the legal academic calendar and this year UWE’s Centre for Applied Legal Research (CALR) will be out in force showcasing current research. Bristol University is hosting the conference this year from March 27 – 29.

Emma Whewell is presenting a paper in the mental health stream entitled “Pre-proceedings and capacity: the impact of professional language and other barriers on parents with learning disabilities”. Emma has undertaken research into pre-proceedings protocols in Family Law and this paper will showcase some of her research. Laura Walker has done research on resilience and mental health, but for the SLSA she is presenting a paper in the Law and Emotion stream entitled “The Role of Empathy in the Sentencing of Women in England and Wales”, one of several papers from the Centre for Legal Research that looks at criminal justice either directly or indirectly.

Ed Johnston will be presenting his paper entitled “The Defence Lawyer in the Modern Era and the Evolving Criminal Trial” reporting on his research in the criminal justice field. He is not the only UWE researcher presenting on criminal justice topics as Professor Phil Rumney is chairing two panels in the Sexual Offences stream and is presenting a paper with Duncan McPhee (Criminology) entitled “Exploring the Impact of Multiple Victim Vulnerabilities on Rape Investigations in England and Wales”. Tom Smith will be reporting on a pilot study undertaken at the Bristol Magistrates Courts looking at the lack of local newspaper reporting of the courts. Tom will be presenting with Marcus Keppel-Palmer and the partners from the Journalism Department, Sally Reardon and Phil Chamberlain. An early report was made to the Society of Editors and quoted by John Whittingdale MP.

Looking at criminal offences in the context of sports law is Matt Hall who is presenting a paper based around his PhD research into the offences around alcohol and drunkenness at football stadia. Matt will be arguing the case for liberalising the laws which apply only in the context of football and not other sports. Matt will also be co-presenting a second paper in the Sports law stream with Marcus Keppel-Palmer reporting on their content analysis of sports photographs in national newspapers in a paper entitled “The Connoted Message of Sports Photography in National Newspapers”. Marcus will have a busy conference as he is also presenting a paper in the Law and Music stream entitled “Law, Outlaw and Deviancy in Bro Country“.

The week before Easter also sees the Association of Law Teachers Conference, to be held at Keele University, and amongst UWE’s researchers presenting papers there are Kathy Brown, Rachel Wood and Thomas Webber.