“Judges are human. It is only natural that, like others in society, judges may have and are indeed entitled to their own personal views and beliefs. However, a judge must decide cases objectively and professionally, independent of his own personal views or beliefs, political or otherwise” - The Honourable Chief Justice Andrew Cheung
The use of artificial intelligence (“A.I.”) in Courts to render justice has been theorized in science fiction since the dawn of the digital age. In an age where impartiality of judges is often challenged, it is easy to understand why humanity might opt to surrender difficult decisions over to A.I. which are devoid of emotion.
As with any application of technology to a specific task, there are of course advantages and disadvantages.
What is A.I.?
According to John McCarthy, the famed computer and cognitive scientist whom had been credited with coining the term “artificial intelligence”, A.I. is defined as:
“allowing a machine to behave in such a way that it would be called intelligent if a human being behaved in such a way…” - John McCarthy
Integral to operation of A.I. is therefore the availability of big data (e.g. collated judgments, etc.) and the ability to process such raw big data into actionable knowledge. In short, A.I. is:
Collection of Big Data Processed into Knowledge-Action through Logic Engine
As we enter into the new decade, access to big data is very much a reality. Quantum computing that will enable actionability of knowledge gleaned from such collected big data is also very much a reality.
Application of A.I., Big Data & Knowledge in Computer-Assisted Courts
It is trite that the administration of justice means the delivery of justice on a case by case basis. Each matter brought before a Judge must be decided on its individual facts and merits. Regardless of the subject matter in question, the work of a presiding justice is to process the information that the parties bring before a Court.
It is noteworthy that not all decisions which require the exercise of judicial powers are complex. Default judgments requiring the declaration of the Court (e.g. Order 19 rule 7 applications) and summary judgment and summary judgments are all matters which can be dealt with without the need of an actual hearing. Where the matter is overly complex, such applications will have deemed inappropriate and dismissed in any event (a process which can of course be undertaken by logic engine).
Conversely, A.I.’s application in simple criminal cases (e.g. traffic violation, etc.) where fixed penalty are the norm can similarly be handled by A.I. (subject to human review if the situation so warrants).
It cannot be stressed enough that technology have much potential to ease the backlog of cases in our judiciary as well as achieving judicial economy with cases.
It should be noted that the application of A.I. in judicial practice has already taken shape in various parts of the world. For example, in a recent research done in the European Union, A.I. prediction of verdicts of cases heard at the European Court of Human Rights had been able to achieve an accuracy range of 79%. The technology therefore already exists!
Hong Kong’s Lag in Legal Technology Adaptation
As mentioned above, in order for A.I. to work properly, big data is a condition precedent. One of the hurdles that Hong Kong will undoubtedly encounter is the fact that much of our legal professional are still paper based. The digitization of our judicial process is therefore essential if we are to have an environment that will be accommodating to A.I. adaptation.
The Need of a Human Heart
“Worlds governed by artificial intelligence often learned a hard lesson: Logic Doesn’t care.” – Yin-Man Wi” - Quote from the Sic-Fi Series Andromeda
Whilst an A.I. assisted judiciary will undoubtedly have much value to assist in the way justice is rendered, it should be noted that the beauty of Common Law lies in the emphasis on equity and conscionability.
Whilst the outsourcing of justice to A.I. may have its attractiveness on hind sight, overly stringent application of the law is also known to have caused injustice. The acquittal of O.J. Simpsons for example have often times been criticized that whilst procedural justice was achieved, the same cannot be so certain in respect to moral justice. The fact remains, the human heart will always remain as the last bulwark for justice. Many judges will often agree:
“sentencing is the most difficult part of the job”
Further, given the fact that A.I. is still, as of this moment of writing at least, a novel technology which remains to be proven, caution dictates that it is better to have an A.I. assisted judiciary (which we should be encouraged to do everything to strive for) rather than a A.I. presided judiciary.
To take things to the next step, we must therefore be mindful of what A.I. can do for us in the decade of 2021:
Organizing information: solicitors across the ages have often been criticized by presiding justices for their failure to properly collate evidence. Solicitors (and barristers) are supposed to be assisting judges in their delivery of justice. A.I. will have great potential when it comes to matters such as eDiscovery, collating of evidence. That said, the first step will be to implement greater levels of e-filing and e-service (legal practitioners must get used to having things digitally rather than on paper!)
A.I. assisted advice/analytics: if there is one thing A.I. is good with it is the digesting of great amounts of data and turning them into knowledge. Whilst it should be up to the end users (e.g. the lawyers) to decide what to do with each set of collated analysis, the age of slow-digesting of papers should, where possible, come to an end. A.I. have, after all, been used for data mining for a long time. Further, the ability to use an A.I. to tell a client of their prospect of success (predictive A.I. is already in existence as mentioned above), may facilitate better settlement of disputes.
Predictions: solicitors (and counsels), whilst their position entails them to come up with arguments for their client’s case, will often find themselves falling victim to tunnel vision and buying too much in their own Kool-Aid. A.I. predictions will enable all parties to re-think their own course of action before taking it.