Judges, justice campaigners, academics and others have raised wide-ranging concerns about the government’s ambitious court reform programme in evidence submitted to MPs.
The justice select committee is conducting an inquiry into the access to justice implications of the £1bn programme – completion of which HM Courts and Tribunals Service (HMCTS) announced last month would be put back a year to 2023 – and has published the written submissions it has received.
There was a recognition from many that the digitisation of paper processes was largely desirable in the interests of improving efficiency, and an opportunity to redress many of the flaws in the present system.
But there was also suspicion that cost savings would increasingly be given a higher priority than access to justice. Any initial caution and safeguards could disappear once changes were established, some feared.
The Magistrates’ Leadership Executive said: “Indications have been given that cases will only be listed and dealt with digitally with the agreement of the defendant. The concern is that the default position will become digital and the option to opt out will become less available.”
These and many other issues were tackled in written evidence to the committee. Some 32 responses to its ongoing court and tribunal reforms inquiry were published last week.
There was also near consensus that it was vital to proceed at a pace that was supported by evidence that reforms were working, before next steps were taken.
The fear that the prospect of cost savings would bring change before reforms had a chance to bed in or technology be upgraded was widespread.
The Law Society was among several respondents that questioned the speed of reform, although it stressed it was “broadly supportive” of the modernisation programme.
“The society does not believe it is an acceptable position to close courts before the technology that is intended to replace the need for physical hearings has been tested, evaluated and proven to work,” it said.
Remote participation in court activities by video-link was made more urgent by the extensive court closures scheme, several responses observed, but doubts were expressed that existing technology was anywhere near up to the job.
Judges in particular pointed to the frequent breakdown – or slow speed when working – of broadband in courtrooms.
“The wi-fi in many court buildings is wholly inadequate… There is no evidence that HMCTS is addressing this,” said the legal committee of HM Council of District Judges (Magistrates’ Courts) (HMCDJ).
The Centre for Justice Innovation reported that, while its research showed strong public support for using online courts for minor criminal matters, there was little support for anything ‘virtual’ in more serious criminal matters, especially trials.
Attending court in person “was vital for the legitimacy of the court system – the accused should feel the formality of the occasion”, the charity said.
In respect of trials, the centre’s focus groups felt it “was vital that the seriousness and solemnity of such a performative event was conducted in one geographic place”.
Women and victim support charities questioned whether remote facilities for witnesses would have the ‘special measures’ available in conventional courts for the safety of vulnerable people. The extra protections were patchy as it was, how would it be in future, they worried.
Meanwhile, the Standing Committee for Youth Justice was “extremely concerned” about the use of video by vulnerable defendants. “HMCTS should… be extremely cautious about expanding the use of video links” to children, it insisted.
Disability Rights pointed out that for many disabled people, online justice was impossible. “Using a computer is still something many disabled people struggle with,” it said.
While judges have been given assurances that video links in court would be used only at their discretion, they worried the far-reaching court closures programme has added to pressure to use video to reduce the need for court participants to travel to physical hearings.
“To suggest the use of video link hearings will address the issue of court closures is somewhat naïve,” the HMCDJ said, although it conceded that in magistrates courts “video hearings work very well in many respects”.
Planning and investment were needed before secure video link facilities could enable witnesses to give evidence remotely securely and privately.
“There is no evidence that this is being planned at present,” the district judges said.
The Magistrates’ Leadership Executive was sceptical that the assurances they were given were watertight.
“We have been led to believe that the reform team understood and accepted that our strong message was that first hearings need to take place in the courtroom, for proper and safe bail and allocation decisions, robust case management and effective input from agencies.
“Yet every announcement implies that this will not be the practice going forward.”
Some judges went further and argued that, apart from “simple and routine case management”, under no circumstances must fully-video hearings be contemplated in certain classes of case.
The Magistrates Association said baldly: “Fully-video hearings are not appropriate for any cases involving LiPs, vulnerable parties, [or] where children have to attend, or for contested hearings.”
Perhaps the subject that almost all respondents raised as of concern was the position of so-called digitally excluded participants in the justice system.
The Public Law Project (PLP) spoke for many when it said: “PLP is concerned about how the growing use of digital platforms may exclude certain members of society, particularly those who are vulnerable or disadvantaged.”
It was pointed out that criminal defendants tended to fall disproportionately into the digitally excluded group.
What exactly would be provided by HMCTS’s assisted digital service – which will help digitally excluded people – was questioned by some respondents. Being referred to a separate service for advice could lead to “referral fatigue”, Citizens Advice warned.
Transform Justice pointed out only 14 people had used face-to-face assisted digital advice since it was launched in March 2018.
The PLP warned it would “be almost unavoidable that those providing assisted digital services will, inadvertently or otherwise, provide legal advice to court and tribunal users” and wanted to know “how [it] is to be recorded or monitored”.
The concerns of academics ranged from open justice under the reforms, to the integrity of evaluation processes and public participation in courts and tribunals.
The Institute for Criminal Policy Research at Birkbeck, University of London, wrote of its “concern that the [reform programme] does not appear to take sufficient account of the critical importance of participation by lay court users”.
Professor Abi Adams and Professor Jeremias Prassl of Oxford University – co-authors of a recent Legal Education Foundation report on the reforms – advised a statistical baseline of the reforms should be taken in 2020 and an update published every two years.
Academics from the University of the West of England were concerned that open justice be preserved and that local media be given access to reformed courts.
If not, “we fear that important work shining a light on the work of the courts will continue to diminish,” they said.
Their submission added: “At a time when economics dictate that many local media outlets are closing or cutting back on staff, it would be detrimental to that principle if [HMCTS] enacted changes to hearings that impacted further on the ease of reporting the courts.”
Even the police chipped in with concerns about the approach of the government. Thames Valley Police said: “Overall we believe the reforms in relation to criminal justice have focused overly on court closures, driven by potential digital developments, rather than taking a strategic and holistic approach to the whole criminal justice system.”