The courts of England and Wales are currently undergoing a massive process of modernisation and reorganisation. The project known as HMCTS Reform involves
- closing older local courts and grouping courts into larger court centres in big towns,
- digitising all paper processes and case management, and
- replacing physical courtroom hearings with virtual ones (in which all parties participate via audio or video link) or fully online dispute resolution systems.
Much of the cost is being found by selling off or cancelling leases on the courts being closed, and reducing staff levels accordingly. We are now two years into the project and its effects are being felt all round the country.
But concerns have been raised, not just about the effect of the changes on access to justice and transparency (on which we have commented here before) but also on their cost. After the National Audit Office issued a report questioning the value and the amount of progress made in the project, the House of Commons Public Accounts Committee began an inquiry. The Transparency Project was one of a number of bodies or persons who responded by submitting written evidence.
The respondents are listed below. All their written evidence is published on the Inquiry website. This post surveys some of the main themes of their various submissions.
1. Cost effectiveness of the changes
Many of the respondents questioned the cost effectiveness of some of the developments and thought the projected savings were over-optimistic. Where savings might be made to the courts’ budget, the cost would often be passed on to other departments or agencies, or to court users. The Magistrates Association noted that, while the timeframe for completing the Reform programme had been increased (from 2020 to 2022), the budget had not also been increased.
Professor Smith said: ‘The pressure on HMCTS to find the money for its modernisation plans is putting the comprehensive structure of the courts in jeopardy and liberties are potentially being taken in relation to those defendants, litigants and witnesses who must rely on public transport to get to courts that are still operating in a traditional manner.’ Melanie Benn submitted that ‘Closing local courts is shortsighted and will increase costs for all’. The SCYJ pointed out that ‘Children attending court are more likely to be reliant on public transport’, and that the court closures and mergers meant they ‘will therefore face longer journeys which will impact on their welfare’.
The PCSU cited a pilot evaluation of virtual courts in London in 2010 which had concluded that ‘virtual hearings were expensive to set up and run, less efficient that the traditional court process, and that defendants were less engaged in the process’. Based on that evaluation, it said ‘a roll-out of virtual courts across London … would cost more than it would save over a ten-year period’. Another false economy was cutting permanent staff: ‘While over 5,000 staff have been cut since 2010, the courts service spent £50m last year on agency and contract staff, a more than tenfold rise since 2010’.
Transform Justice was concerned that there was ‘insufficient evidence to estimate savings, that the reforms threaten to increase costs across the system’ and that ‘savings for HMCTS are dependent on expenditure by other agencies and departments, all of which are themselves under financial pressure’. Video hearings tended to shift spending from the courts onto the police or prison service, who had to provide equipment, rooms and staff in order to facilitate participation by defendants who might otherwise be brought to court. Moreover, if lack of legal aid meant more defendants were unrepresented at plea stage, and did not have advice as to plea discounts etc, they were more likely to plead not guilty and thereby increase costs by going to full trial.
On the civil side, the Bar Council raised concerns about the lack of advice to unrepresented claimants using the online dispute resolution system which might lead to them issuing weak claims online and insisting they go to court rather than settling, ‘simply because it will in future be much easier to do so’. There were fundamental concerns ‘about whether HMCTS will achieve its stated aim of greater efficiency’.
Resolution suggested that if savings could be made by digitising archaic routine paper-based processes, the ‘savings can be invested elsewhere within the family justice system. Alternatively, a very strong case can be made for reducing fees.’
2. Transparency, scrutiny and consultation over the changes
More than half the respondents felt that there had been insufficient transparency, consultation and public scrutiny of many aspects of the modernisation programme. ‘The vast scale and distinctive governance structures of this programme continue to create very real difficulties for those seeking to engage with, communicate about and, where necessary, constructively criticise its very wide range of proposals’, said the Bar Council.
While acknowledging that there had been ‘significant recent improvements in HMCTS’ general approach to engagement’ and praising the leadership of HMCTS’ Chief Executive (Susan Ackland-Hood) in engaging via social media and attending the Bar Conference, it said ‘these initiatives are not a substitute for structured engagement and formal consultation’. It cited the postponed Flexible Operating Hours (FOH) pilot as an example of a project that foundered on a failure to consult and develop a sufficiently robust evaluation plan.
Another problem, though, was the close involvement of the judiciary in managing the programme and an over-reliance of HMCTS on judicial decisions and approval at the expense of engagement with other stakeholders.
The Magistrates Association said there was too much ‘pressure to make changes quickly and to expect partners to work at the same pace’, and that ‘HMCTS should build in sufficient time to consulted widely in a meaningful way and act on the results of that consultation’.
Professor Smith said he thought it was difficult for unrepresented poor defendants and litigants to express their concerns, because ‘they do not have the institutional backing that others can call upon’. Resolution said ‘there needs to be more meaningful, consistent engagement across the whole reform programme’. For the PCSU, ‘one problem has been that the government’s record of staff engagement over its transformation programme has been abysmal’.
Penelope Gibbs of Transform Justice pointed out that while the judiciary and legal professionals may have been consulted, ‘ordinary court users, be they witnesses, defendants, prisoners or litigants, have not consistently been given a voice. They have been the subject of user testing, but this is not the same as consultation.’ There had been ‘no public consultation on online pleas, on an extension of telephone and video hearings and on most aspects of the civil programme’. And while there had been public consultation on court closures, ‘nearly all previous consultation responses … have been ignored’. Radical changes to the justice system had not been – and if they were implemented by way of secondary legislation would not be – subjected to detailed parliamentary scrutiny either.
The Transparency Project pointed to the lack of consultation over the Court of Protection’s pilot transparency scheme, which did not appear to have been fully evaluated and reported on before being implemented in permanent form under revised court rules, and expressed the fear that further procedural changes might similarly be imposed on family courts without sufficient evaluation and consultation.
There should also be fuller consultation, particularly in relation to criminal cases, before implementing planned changes to the way listings and results were published online. On the same topic, Resolution said it would ‘like to see our members involved in the development of systems to support the better scheduling and listing of cases at the earliest opportunity’.
3. Research and evidence base for the changes
A source of concern for many was the apparent lack of research and of a robust evidence base for the radical changes being implemented in the programme.
Professor Smith cited a comment by Sir Ernest Ryder, President of Tribunals, in a speech earlier this year, that ‘If we are to ensure that our courts and tribunals fulfil their constitutional role, we – as judges – must ensure that they and their processes are not unexamined; that we lead reform in the light of evidence and through the proper use of expertise’.
Evidence of the effect of court closures was said to be lacking. Resolution said ‘there is a need to fully test and successfully establish online and virtual models, before the loss of a disproportionate part of the court estate and face to face services’. It was ‘concerned by the lack of reporting on the impact on and capacity of courts receiving work from closing courts’. In particular, ‘We have always called for analysis of the impact of proposals on victims of domestic abuse, family court users with emergency applications, children and young people who attend court to give evidence … and parents involved in care proceedings who more often come from the most disadvantaged groups’.
The Transparency Project was ‘disappointed to learn that the data HMCTS will be collecting, and which it says it will share for research and accountability purposes, will not include demographic data’.
In relation to the Online Court, Professor Cortés feared that a ‘lack of research on comparable online dispute resolution (ODR) processes and on the impact that technology and ODR have on litigants in person would limit its potential’. He cites other systems which were said to have inspired the design of the Online Court, such as the Financial Ombudsman Service, the Traffic Penalty Tribunal, and the Canadian Civil Resolution Tribunal, and wonders why, in the UK, there has been no in-depth study of their impact or the fairness of their outcomes.
4. Video links and virtual hearings
A particular area of concern over lack of research was the use of video link and virtual hearings. In this regard, Melanie Benn (writing from Cambridge Magistrates’ Court where the video link to HMP Peterborough had yet again broken) raised the question of how duty solicitors would be able to give timely advice if pre-trial hearings were online, and suggested that ‘The MoJ should stop the modernisation programme until it has been fully tried and tested over a 12-month period in at least two different rural courts, two small towns and two metropolitan courts.’
The PCSU noted that ‘HMCTS has not commissioned or carried out academic research into the impact of video links and virtual hearings … on access to justice and the quality of justice being delivered’.
Professor Smith said there were ‘significant questions about how well the court video connections are working, in practice,’ and Penelope Gibbs raised concerns about the quality of justice even when the links were working properly. Lawyers surveyed by Transform Justice had reported that ‘a defendant on video is more likely to get remanded on first appearance and more likely to be refused bail if they are already remanded’. In regard to fully virtual courts, she reported that judges themselves were concerned about ‘the risks of unconscious bias and depersonalisation’ identified in early testing. ‘Given the indications that video is prejudicial to outcomes, both for child and adult defendants and for immigration detainees’, Gibbs thought that ‘a rigorous programme of research should be undertaken about existing online and digital processes, before progressing the reform programme.’
The Magistrates Association also raised ‘concerns about the use of video links for any hearings which are either contested or where the understanding of the parties is key to the legitimacy of the process’, saying ‘any decision as to whether virtual hearings / video linking should be used for a particular case should remain entirely within the discretion of the judiciary.’ (Their emphasis.)
While acknowledging that the decision whether to use video-only hearings should ultimately be one for judges alone to decide on a case by case basis, the Bar Council said there was ‘currently no clarity about what factors will influence this decision’, and pointed out that any judicial decision about the use would have to be made without the benefit of ‘any research about the impact that video-only hearings will have on the quality of justice’.
The SCYJ also pointed to lack of research by the MOJ or HMCTS on the effect on child defendants of video links, despite evidence that their use is increasing. Citing their own recent research on the matter, the SCYJ had ‘serious concerns that the use of video links and online pleas may significantly damage a child’s ability to understand, participate, and engage appropriately with proceedings’. In particular, they found that ‘video links erode levels of communication and support between child defendants, their lawyers, youth offending teams and family, exacerbating issues children already experience with understanding and appropriately engaging with court processes’.
5. Effect on access to justice
Professor Trinder sounded more optimistic than the other respondents on the question of access to justice, particularly in relation to the new online divorce petition, which she said ‘significantly increases access to justice, especially for unrepresented litigants’. That was largely because the old paper form was a nightmare to complete, being ‘designed by and for lawyers’ and using ‘highly inaccessible language’. She cited one person interviewed for her research who had reported that ‘My vocabulary increased amazingly when I went for a divorce’. That was because: ‘It’s so archaic, the forms that you’ve got to fill in with the legal jargon. No normal person would understand the wording of it.’
The old forms were so tricky that many were sent back. Apart from wasting time and money, it also meant in some cases that people trapped in an abusive marriage and desperate to secure a divorce as soon as possible were faced with delays of up to six months simply by reason of their paper form being rejected over technical mistakes.
So, a big win there for HMCTS Reform. But other respondents were not so sanguine. The Bar Council noted that ‘a wholesale move to digitisation of legal processes may serve to strip key stages in criminal or civil litigation of their formality, and encourage users to do what is easy, rather than what is in their best interests or the interests of justice’.
The Transparency Project pointed out that closing local courts and adding to the time and cost of travel for litigants could impede access to justice, as well as reducing media and public scrutiny. Resolution noted that ‘with people forced to travel further to courts at extra cost to seek protection in the family courts, remaining or new courts should urgently provide full and suitable facilities for vulnerable parties and witnesses’.
In the context of using the online procedures, Resolution said there was as yet ‘little information on the assisted digital arrangements, apparently in place for those not able to access computers’ or who lacked confidence and skills for dispute resolution. Professor Cortés said that while it was ‘hoped that the accessibility and user-friendliness of the new Online Court will increase access to justice without denting the quality of justice, the limited empirical research does not unambiguously support this hypothesis’.
The Magistrates’ Association said ‘it should not be presumed that virtual access will be adequate to ensure fair participation’, particularly in relation to litigants in person. Professor Smith agreed that the impact of ‘digital exclusion’ was critical. He pointed out that the widely praised ‘Digital Case Management System in criminal cases is not accessible to unrepresented defendants’, which ‘puts them at a significant disadvantage’.
6. Success or failure to achieve aims of project
While some aspects of the programme had worked, others appeared to have been less than successful. The PCSU noted that ‘Poor morale, change-fatigue and de-skilling have become significant as some of government’s lowest paid staff have worked through several poor digital products that have not been designed for their needs.’ According to HMCTS’s own staff survey, ‘85% of respondents confirm that almost six months after its introduction [digital markup in the magistrates’ courts] is having a negative impact on timeliness and in excess of 81% indicate it is interfering with their ability to give legal advice and ensure all who attend have a fair hearing’.
The Magistrates’ Association said ‘lack of detail as to how the reformed services will work in practice, and lack of clarity about the cohesiveness of the whole structure, is of significant concern’.
Professor Smith expressed disappointment that the online court had been reduced in scope, to something rather mechanistic and routine, rather than embracing the more imaginative ideas developed in some of its models (such as the Canadian system’s Solution Explorer) and envisaged by Lord Briggs in his original blueprint.
While recognising the success of the online divorce petition, Resolution pointed out that it was effectively a discrete administrative process, and as a digitisation project represented ‘low hanging fruit’, warning: ‘we anticipate that other areas will be more complex to digitise (or hear virtually)’. The Transparency Project echoed those concerns, recalling recent comments by family judges that ‘family court hearings are not suited to an online system’.
7. Open justice and transparency of justice system
A major concern about virtual and online hearings is the impact on open justice – the idea that justice must not only be done, but must be seen to be done. Transparency requires that there should also be public knowledge and understanding of what is going on. These things are threatened by some of the key developments.
In the absence of a physical courtroom with a press bench and a public gallery, how are the public, interested parties and the media (often described in this context as the ‘eyes and ears’ of the public) to watch or hear and report on cases? The only proposal so far put forward by HMCTS is for the provision, in some court centres, of special ‘viewing booths’ with video terminals through which members of the public and the media, under supervision by court officials, will be able to watch or hear in real time cases currently being conducted via telephone or video-link hearings. It is not clear whether they would also be able to view exchanges involving a judge in the Online Court.
Mark Hanna’s response was entirely devoted to this issue, and several other respondents, including the Transparency Project, also commented on it.
In submitting his evidence, Hanna challenged the PAC to ask itself ‘how much is open justice worth, in the eyes of Parliament?’ He warned that if the reforms were designed to cut costs at the expense of open justice, and if there was insufficient protection for the ‘watchdog’ role of the media, HMCTS or the MoJ might ‘face a legal challenge from the news media, or some other party, seeking to uphold aspects of open justice’. Even if the changes were approved by Parliament through legislation, ‘there could still be an “open justice” challenge to that legislation, based on the European Convention on Human Rights, Article 6 (e.g. from a party to a case) or Article 10 (e.g. from the media).’
It was not just online hearings that threatened open justice. Court closures also threatened access to public and media scrutiny. Hanna noted that ‘the further away the court house is from the newsroom, the less likely it is that a reporter will attend court. The closure of courthouses has, as a factor in itself, probably already led to a reduction in the number and range of criminal court cases covered by the media in the regions.’ The proposal to use ‘pop up’ courts in non-traditional locations might also make it harder to report proceedings, unless facilities were provided for the media.
As for virtual hearings and the ‘viewing booth’ proposal, ‘In a physical courtroom a reporter can ask the lawyers, parties or legal advisers when needing to check spellings of names referred to in evidence, or the wording of the charges, or what the magistrates’ names are, etc. How can that be done if the reporter is only viewing the hearing through a screen?’ If the parties were at remote locations, how could they be contacted for comment afterwards?
More importantly, if a reporting restriction were imposed, how was a reporter able to query or challenge it? How were such restrictions to be notified? If a case attracted a lot of publicity, how many people would be able to watch it via viewing booths? What if the screen stopped working: would that ‘nullify the proceedings because of the open justice rule’? Looking at what HMCTS and the MoJ had so far published about this, ‘it is hard to find any detail which suggests that these open justice issues have been considered in any depth’.
The Bar Council also drew attention to potential problems with the viewing booth proposal. ‘In additional to questions about how capacity will be managed in the event of high-profile trials attracting large audiences in multiple different court centres, the Bar Council has asked how judges will be alerted to in appropriate behaviour, technical issues or individuals who should not be present, such as witnesses in the same trial.’
It was not good enough for HMCTS to leave the matter to the judiciary to manage: ‘In the case of open justice and the judicial functions of court staff, the approach that is being taken risks undermining the ability of the public, the profession and of Parliament adequately to understand and scrutinise reforms which look set to challenge some of the basic principles of justice.’
The Transparency Project, as you would expect, raised concerns about open justice and access for the public and media to court proceedings. ‘The closure of many [court] buildings, and the increased cost and travel time involved in reaching alternative courts, can impede not only access by court users but also access by media and public viewers.’
On the other hand, providing more digital resources could be of great benefit to people with disabilities that prevent them from attending and observing court. In this way, greater digital access could improve access to court materials for some people.’ But, as with access to justice, the judiciary and HMCTS ‘must consider how individual citizens of varying levels of digital competence and access are able to access public court documents and public court proceedings’. Moreover, open justice required ‘either physical or digital access to public proceedings without prior or special arrangement’.
The Magistrates Association identified the single justice procedure and the automation of low level convictions as problematic in this context, and pointed out that ‘any restrictions to transparent and open processes are likely to impact negatively on both public confidence and perceptions on the legitimacy of the system’. That point was made even more forcefully by Melanie Benn: ‘the idea that hearings take place online away from public scrutiny will feed into the growing narrative of deep state conspiracy theories which, ultimately, will undermine the rule of law’.
The other respondents
The Bar Council
The Magistrates Association
Resolution (organisation of lawyers and family justice professionals)
The Standing Committee for Youth Justice (SCYJ)
Transform Justice (represented by Penelope Gibbs)
The Public and Commercial Services Union (PCSU)
Professor Roger Smith OBE (solicitor and former director of Legal Action Group and of JUSTICE)
Professor Liz Trinder (Law School, University of Exeter)
Professor Pablo Cortés (chair in Civil Justice at Leicester Law School)
Mark Hanna (journalist and co-author of McNae’s Essential Law for Journalists)
Melanie Benn (solicitor advocate)
The Public Accounts Committee has since held one oral evidence session, on 6 June 2018, which you can see here.
Under Scrutiny, by Pulpolux !!! via Flickr creative commons, reproduced with thanks.