The last post

Technology is the focus of many conversations between lawyers at the moment. For example, should a court allow a submission written by artificial intelligence? Was the judge who banned such submissions right to do so? High Court judge Sir Jeremy Johnson told a webinar I chaired: ‘I’d like to think I’d be able to tell if something had been written by AI, but I’m not sure if I would… ultimately, it may not matter if the judge does their job properly.’

At issue is the prospect of a move away from trust in written submissions from lawyers, and the accuracy of their referencing and process of compilation, to an element of trust being placed in technology which does more than ‘search’; it does ‘research’.

As the Horizon IT inquiry picks apart how an industrial-scale miscarriage of justice occurred, we can see how pressing these questions are. From a certain angle, what is alleged is not an IT failure, but a tragedy that arose from lawyers, the law and flawed technology working in concert. It seems clear that lawyers placed their trust in technology, about which they were insufficiently curious over a period of many years; and in turn, in court, too much trust was placed in the work of lawyers who over-trusted the technology.

The kindest thing I can think of to say is that insufficient professional curiosity was shown when the answer ‘computer says yes’ came back on allegations of fraud against subpostmasters and subpostmistresses.

Writing in the Gazette, specialist professional regulation lawyer Francis Dingwall argues that the lawyers involved in these prosecutions and the design and operation of an apparently flawed compensation scheme are not an isolated problem. What the Horizon prosecutions illuminate is the fact that many in the legal profession have a weak grasp of legal ethics – a topic barely touched on in legal education and training, and seldom covered post-qualification.

Technology’s use in the legal sector is now moving at pace, and there is a race on to understand its uses, advantages, flaws and limits. Equally necessary should be a race to understand, and fix, flaws in legal ethics that the Horizon IT inquiry may throw into sharp relief.