Has the revolution happened? Can we ever go back?
The House of Lords Select Committee on the Constitution has been conducting an inquiry into the effect of Covid-19 on the courts and access to justice. This post surveys the oral evidence given so far. … Continue reading
The Lord Chief Justice called it “the biggest pilot project that the justice system has ever seen” and said “there will be no going back to February 2020”. Remote court hearings would have come sooner or later, but thanks to Covid-19 they came at us fast, in March 2020, and it looks like they’re here to stay.
Ironically, they were one of the things the massive £1bn court modernisation programme was supposed to have developed, but when it came to the crunch HMCTS wasn’t quite ready so there was “the most extraordinary scramble”, said Professor Hazel Genn, to find solutions that worked.
Now things have settled down a bit, the House of Lords Select Committee on the Constitution is looking at what happened and what the implications are for the future. Its inquiry into the Constitutional implications of COVID-19 is asking, inter alia,
- How is the court system operating during the pandemic?
- What has been the impact of virtual proceedings on access to justice, participation in proceedings, transparency and media reporting?
The inquiry has been taking oral evidence from a number of experts and stakeholders, but they also welcomed submissions from “anyone with answers to the questions in the call for evidence”. The Transparency Project is an obvious example of a body well qualified to give such evidence, and we will be publishing our response in due course. (The only other substantive submission of written evidence relating to the courts has come from Transform Justice.)
In the meantime, it is interesting to see what the experts and stakeholders who have already given evidence have been saying on these issues. There have been a number of oral evidence sessions, listed here, which you can watch via Parliament TV or read in the form of transcripts. The sessions relating to the effect of Covid-19 on the courts have so far featured the following witnesses:
- The Lord Chief Justice, Lord Burnett of Maldon: 13 May 2020
- Professor Richard Susskind, IT Adviser to the Lord Chief Justice; Professor Dame Hazel Genn, Professor of Socio-Legal Studies, UCL Faculty of Laws: 3 June 2020
- Dr Natalie Byrom, director of research and learning at the Legal Education Foundation; 10 June 2020
- James Sandbach, Director of Policy and External Affairs at Law Works; Carol Storer, Interim Director at Legal Action Group; Cris McCurley, Partner, Ben Hoare Bell LLP: 1 July 2020
- Simon Davis, President of the Law Society; Caroline Goodwin QC, Chair of the Criminal Bar Association; Derek Sweeting QC, Vice-Chair of the Bar Council: 9 July 2020
- Robert Buckland QC MP, Lord Chancellor; Susan Acland-Hood, Chief Executive of HM Courts and Tribunals Service: 22 July 2020
A number of themes have emerged from their evidence, the main points of which we’ve distilled below.
1. We were not ready for this!
Despite the extensive modernisation programme on which Her Majesty’s Courts and Tribunals Service (HMCTS) had embarked in 2016 – a key plank of which was to be a facility to conduct remote hearings – neither the courts nor the judiciary were ready for them when the lockdown suddenly made them essential. HMCTS had a platform in development, called Cloud Video Platform (CVP), but it wasn’t ready to roll out. Instead, the existing technology was “rather antiquated”, said Burnett. It was “not remotely suitable for conducting these types of hearings”. We were, said Genn, “starting from below seal level” so there was “the most extraordinary scramble” to get things to actually work. Judges and lawyers used whatever was available.
The first thing was to provide all judges with conference telephone facilities. Judges had or were given access to videoconference platforms such as Skype for Business or Microsoft Teams. But others started using Zoom, despite the data security risks that were warned about at the time. There was also a programme to dispatch laptops to court staff, so the ones who hadn’t been furloughed could work at home and support the remote administration of justice.
There was a “proliferation of guidance” said Byrom, not all of it located in the same place, while in the absence of CVP it was understandable that “we had to switch to using whatever technology platforms were available”.
“If you look at the judiciary’s guidance and advice across all areas of the different jurisdictions,” said Sandbach, “there are 124 different documents covering practice directions, procedural changes, et cetera”. Cris McCurley recalled that a lot of it was being managed by the lawyers: “As practising solicitors, we are being asked to take responsibility for the type of platform and the inclusion of all the parties, including any witnesses.”
In answer to the criticism that HMCTS wasn’t properly prepared, its chief executive, Acland-Hood pointed out that “there is a distinction to be made between some of the planning that we were doing as part of the court reform programme before the pandemic and some of the things that we have had to do during the course of the pandemic, where other routes were simply not available”. And as Susskind observed, “it is hard to change the wheel on a moving car, as it were. We have this major machine moving forward. It might surprise people when I say that we have to be quite modest about what we are trying to achieve technically to keep the system up and running.”
2. What we did was amazing!
The people in charge of what was happening were quite chuffed about how well, in spite of these difficulties, it had all gone. “What was achieved is quite remarkable”, said Burnett, paying tribute to “all those who have managed to keep the wheels of justice turning in the last eight weeks”. It was, he said, “quite a marked contrast with what was going on in many parts of the world, where courts essentially shut down.”
Susskind, agreed that, “the speed at which the new systems and processes have had to be introduced has been very challenging.” Acland-Hood pointed out that “at the height of the pandemic, close to 90% of the hearings taking place were taking place using either audio or audio technology”.
3. Remote hearings can be challenging, though …
Remote hearings presented a number of technical, practical and emotional challenges, both for lawyers and, perhaps even more so, for non lawyers. For one thing, said Burnett, “conducting court hearings via phone or an online platform is very much more exhausting for both the judge and the participants”. That evidence was echoed by others.
There were also risks of distraction, with participants all being in different places, said Buckland: “Here we are in little boxes all looking at each other, and there is a temptation perhaps to try to multi-task or perhaps not to focus fully on the matters at hand or fully appreciate that the person you are talking to is a judge, for example, or that the information you are giving is being recorded and is being given in a way that could be important evidence that will have repercussions, putting it neutrally.”
“The technical challenges are considerable and they affect people a lot”, said Storer. “On the most basic level, does a party to proceedings have a phone, a laptop, an iPad? Is it charged? Do they have credit? Is there good reception? Do they have sufficient notice of the hearing? Supposing they actually managed to join the hearing, will they be able to see everybody, or will the screen on a phone, for example, show them only one party? Will they feel that their participation is still as meaningful as if they were in a court?”
Nearly half of hearings experience technical difficulties, said Byrom, particularly hybrid hearings, which her report showed had “experienced a greater number of issues with technology, a greater number of issues with parties expressing fear and distress, and higher rates of issues with lawyers finding it difficult to communicate with their clients.”
“People want to feel their voice has been heard”, said Davis, and that could be difficult in a remote environment, particularly when they are even more anxious than they might otherwise be. “When you are sitting on your own in your kitchen in front of a laptop,” said Genn, “thinking, ‘Is this going to work or not? What’s going to happen?’ and waiting for the judge to call you on the telephone, believe me, that can be quite anxiety inducing”.
This was reflected in Byrom’s report for the Civil Justice Council: “We also heard some really upsetting accounts of the impact of remote hearings on litigants in person and their attitudes and confidence. We had descriptions of remote hearings as ‘humiliating’, ‘confusing; and ‘second-class justice’. It is incumbent on us all to remember that, for the majority of litigants, a court case is a really important event in their lives.”
But at the end of the day, it was a question of doing what was best in circumstances, said Acland-Hood: “The test has been different, and not whether a remote hearing is better than a physical one but whether remote is better than not having a hearing for a period on a particular matter.”
4. A tale of two systems
Byrom gave evidence about her recent report, for the Civil Justice Council, on remote hearings, which she said had been the “largest study of fully remote hearings in civil justice that has been conducted anywhere in the world. It is 60 times larger than the next most recent study of remote hearings, which was conducted by HMCTS in support of the reform programme.” What it showed, she said, was that “we are talking about not one but two justice systems. The senior courts, which are better supported and resourced, have been much better able to adapt to arrangements under Covid. The county and district courts, which deal with the majority of cases, and those litigants who are most vulnerable, have had a more difficult time.”
In those lower courts, she said, there was “an urgent need for more administrative support for judges to help them arrange these hearings, particularly when dealing with litigants in person and lay clients, who are not as familiar with the technology”.
There seemed to be two systems both in the sense of rich and poor – the senior courts having the rich system with plenty of support and technology, and the other, more front line courts, having to make do with less – but also in the sense of systems that were either suitable or unsuitable for the matters they had to deal with.
“Cases which are not suitable”, said Caroline Goodwin, “are those which are very sensitive, or which have difficult and complex sentencing regimes, because you can often have the complainants wanting families to come to court to see what is happening. We cannot disengage everybody from the process.”
But there were advantages as well as disadvantages in deciding cases remotely: “One of the benefits not to be overlooked is that virtual hearings have kept a great many people safe,” said Sweeting. Another benefit was avoiding the need for so much travel. He recalled how “a junior member of the Bar told me this week that, in the course of about 16 months, he had completed the circumference of the earth travelling backwards and forwards to court in London and in the Midlands. That is a very significant impact if you multiply that by the number of people who are attending court.”
This aspect had particular significance for international cases, as Davis pointed out: “We must not overlook the huge success of this jurisdiction in relation to international litigants. I have heard that a benefit of that is that international litigants have felt more engaged because they have not had to fly to the UK. They can flick open on their desk Zoom or Teams, or whatever is being used, and go straight into a hearing. In fact, they may get more engagement.”
5. Was justice remotely open and transparent?
“So far as transparency and therefore media involvement are concerned,” said Burnett, “we have tried to ensure that the principle of open justice is maintained throughout.” A lot of trouble had been taken, he said, “to ensure that the press can become involved in remote hearings in which they have an interest. HMCTS has an arrangement with the press to enable people to get in touch so they can join video and telephone hearings if appropriate, and so too can others. So far as I know, it has been quite successful. One or two notorious cases have been heard over the past few weeks, which you can readily bring to mind, where very large numbers of journalists attended on a link not very different from this one, when the reality is, had it been in a normal courtroom only a few would have been able to get in.”
What this reflects, however, is an assumption on the part of those managing the process that access for the media is equivalent to, or sufficient for, open justice. It overlooks the range of other types of public scrutiny and observant participation that open justice necessarily imports. As Byrom pointed out: “access for journalists and court reporters is only one part of open justice. It is not sufficient to render a system open by having journalists there. There were real issues with members of the public and researchers being able to join and being able to gain access in the way that journalists are able to do. I think that that is a problem. Again, there is a split between the upper and lower courts, with the issues seeming to predominate at county court level.” For journalists and court reporters, she said, the arrangements were working reasonably well. “For the public, researchers and bloggers, it is more problematic. We found that only a minority of county courts are publishing open justice notices which give people the information they need to join hearings.”
Another important issue, she said, was around “accessing documents relating to cases which are considered vital to facilitate accurate reporting. When you attend a hearing in person, you can go to the court staff and ask for access to these documents, but, when hearings are proceeding remotely, it is much more difficult to gain access to them. Existing deficiencies in the current arrangements for accessing listings, judgments, transcripts and case documents, where they are authorised by the court, have been compounded by the current crisis. We need urgent systemic reform to the way in which information about the courts is disseminated, particularly when we are thinking about the reform programme, which aims to move to more of these digital ways of working, and more towards a system of people attending court and participating in hearings unrepresented, so people need to have access to the fundamental material that describes what the law is in this country.”
Other witnesses commented on the importance of maintaining open justice for remote hearings. “If the public can watch what goes on in remote hearings that would normally be public,” said Genn, “it will make it easier for them to see what is going on and keep a judge under review. There could be some genuine opportunities for transparency.”
There was also a need for family members to be able to watch and feel involved, said Goodwin: “The whole point is that it is meant to be about open justice so that people can be part of it.”
But open justice was about more than just access to individual hearings. “The crisis has also, importantly, exposed the extent to which the current system for collecting and publishing primary legal information, such as listings, transcripts and judgments, relies on in-person workarounds,” said Byrom. “These urgently need reform. We have a world-leading service for providing free access to legislation in the National Archives, and we need the same quality of service for judgments which are equally part of the law in this country, and yet beyond the reach of many people who need to access them.”
Referring to his recent book on the topic of online courts, Susskind said he argued that “there are two aspects to open justice, one of which will become increasingly important. The first is what I call real-time transparency: the ability to go in and look at the justice system in action, to sit in a physical courtroom. The second I call information transparency, which is the ability easily to find out about the justice system. In a democratic society, we should be able to find out the volumes of cases, the results of individual cases, when and where cases are held, which parties are involved, what judges are at play, and so forth. Today, we have in the physical court system quite a lot of real-time transparency but very limited information transparency; it is very hard for most people to find out what is going on in the courts system. Such opacity weakens confidence in the system.”
6. Who got left behind?
Apart from looking at how people who came into the system had fared with remote courts under Covid-19, the committee also heard evidence about those whom the crisis had effectively shut out, and the unmet need for advice for those whom technology left behind. As Davis pointed out, “A category we must not overlook is those who may not have come into the system in the first place who otherwise would have.”
“The obvious point” said Sweeting, “is that clients have only been able to access legal advice remotely. Their access to advice has been proportionate to their ability to access the internet and to have suitable devices.” It meant “a lot of people who might have been able to access legal advice through traditional means have simply not tried because they cannot get on to the internet”. But it wasn’t the only barrier. “Who are we not reaching because they are intellectually excluded?” asked Genn. “We talk about digital exclusion, but there is also intellectual exclusion along with emotional exclusion. Who is afraid of dealing with these issues on the telephone?”
The other problem, said Sweeting, “is that most of the legal advice in the country is given by solicitors, and a great many them have been on furlough.” And it wasn’t just solicitors. “Advice agencies and charities had financial problems,” said Storer. “Some organisations have had to furlough staff, even though they have had a huge number of inquiries. I do not know how charities like Age UK and Shelter have managed, because the number of inquiries they have had has been increasing dramatically, yet they have had to close down shops and they have not held fundraising events.”
“It is very difficult when there are people with any disability,” McCurley said, “because the system is really slow in accounting for that”. But, said Buckland, “We should not think of digitisation or remoteness as just a limitation. We should also remember that for very many people it is the best way, and sometimes the only way, in which they can access justice.” He gave as an example the way the special educational needs and disability tribunal had very quickly all been made remote. “The parents of children with disabilities who have been involved in those remote processes have started lobbying the president of that jurisdiction to say that they would like to retain remote hearings, and indeed for the tribunal to be a default remote tribunal, because it works better for them as the parents of disabled children. They find it easier, less threatening, more convenient and more manageable. We are learning where it works and where it does not, and we need to apply that learning in future.”
Looking at the HMCTS reform programme more generally, Acland-Hood said she was aware of the risks of exclusion and pointed out that the introduction of remote or online processes did not necessarily spell the end of traditional approaches. “We are adding a digital route, not subtracting a paper one. We will also try to make the paper form more accessible, more intelligible, simplify the language, and so on. … We are about adding routes, not taking them away.”
7. Will we ever clear the backlog?
Uncertainty as to how long the lockdown would continue only added to anxiety over the growing backlog of cases that could not be resolved by remote hearings, particularly those criminal cases awaiting trial by jury.
“Since lockdown there have been more committees than hot dinners looking at how on earth we can address the backlog”, said Goodwin. But she emphasised that the problem was not a new one: “the pandemic has merely shone a light on an accruing problem that had been growing for many months”.
Acland-Hood pointed out that “during the period when we had suspended jury trials, we were still holding an extremely large number of hearings in the Crown Court. These covered sentencing appeals and preliminary hearings”. But as Sweeting observed, “a great many of the hearings that have taken place during the pandemic have simply resulted in business being adjourned”. Sooner or later it would have to be dealt with.
The solution of dispensing with the jury was put to Burnett but, although he said it “had the support of some very senior members of the legal profession and former judges”, it was an option he would only consider “in extremis”. He said “trials without jurors is a topic raised and debated every few years. Before Parliament considers moving to that, one needs to be very sure that nothing else can solve whatever the problem appears to be in a few months’ time.”
“The very limited experience we have of the Diplock courts has given us a flavour of what issues could arise out of having a lack of jury trials,” said McCurley. “I agree with Carol: there are systemic reasons why we have a backlog in the system. We would do better to address those systemic needs than to take away this bedrock of our judicial system.”
The idea had no better appeal for Buckland, who recalled that “my background is entirely in the jury system. I spent virtually every day of my professional life addressing jurors for the best part of 20 years, so I have had more opportunity than most of my predecessors to observe at close quarters the ways of the jury system, the pluses, and yes, some of the minuses. It is my honest assessment, based on all those years of experience, that we must preserve the jury system.” He said he was prepared to consider “wartime juries”, ie a reduction in their number to nine or even seven, but not doing away with them altogether. “The retention of the jury principle is more important to me than anything else.”
Jury trials had resumed, but the number of courts that could accommodate them was still limited. “We are now on what I think will be a continuing journey to find ways of bringing more and more of that space back into use safely,” said Acland-Hood. It was not as simple as it might sound, though. Sometimes unused rooms are too small but “Even if the rooms themselves are theoretically big enough, if that involves having too many people in the public area for us to manage safely, we have to reduce the number of rooms in use.”
Given the shortage of suitable courts, HMCTS proposed making the best use of them by extending their hours of operation. But legal professionals have long opposed this idea, when piloted as part of the court modernisation programme, and they didn’t see Covid as a reason for changing their mind. “Coming to the point about night courts”, said Goodwin, “one has to look at who is going to be involved in those hearings. There are going to be prison staff, HMCTS staff, CPS staff, and those people who are defending, as Simon has said. I think you will find that there is, first, going to be no appetite for it. Secondly, it is not going to remunerated in any way which would be seen to be acceptable. Thirdly, they are incredibly unsocial hours. Fourthly, if you are looking at trials, one very important group is the victims. We have already had discussions with victims groups and they are not at all keen on putting additional stress upon victims coming to court at awkward hours.”
In answer to anxieties about the extra work and unsocial hours, Acland-Hood pointed out that “From the point of view of the practitioners, and indeed of witnesses and others coming into the system, their hours should not be extended. In other words, we are not expecting anyone to work extremely long whole days in court. It is the hours of the court buildings that we want to extend.”
8. What about the future?
“Returning to the status quo would be a massively missed opportunity,” said Buckland. “Although Covid has sent us some really grave and dreadful challenges, the experience of technology in the courts is one that I want to be positive about and work positively to further improve.”
But it was hard to be positive in the face of so much distress. According to Davis, “many parts of the criminal and civil justice system were already in crisis before this current crisis arose. That was due, as we all know, to decades of underinvestment, court closures and slashed legal aid. The coronavirus crisis has exacerbated brutally the system’s shortcomings.” When the lockdown came, “Everything stopped. There were no trials and virtually no immigration work. Personal injury work pretty much collapsed. Conveyancing moved away from the courts. That cessation of activity meant a cessation in cash, put bluntly. People had to go on furlough.”
“The Bar in certain sectors is extremely fragile,” said Sweeting, “not just because of the way we organise ourselves and the way we have historically done business but because, particularly in the publicly funded sector, it has been cut to the bone.” Goodwin agreed: “In respect of the Bar, this has been the most crippling episode ever, for junior barristers and senior barristers alike. Our entire fee structure is built on trials—no trials; no significant income.” She added that: “We have not, unlike the hospitality industry, received any relief around business rates. Because we are self-employed, we cannot furlough ourselves. We have been outwith the threshold for self-employed income help and support. We find ourselves in a very dire situation.”
“The longterm need”, she said, “and indeed the short-term need, is to invest in the Bar and invest in the criminal justice system. You cannot keep taking an axe to it and expecting it to perform. It is coming to a situation now where we are literally surviving on petrol fumes.”
Davis highlighted the need to fund early advice: “more early availability of what I call preventive legal advice. Right at the very beginning, we should spend some money to give people some reassurance about debt, housing, social security and the like—the most common problems—to stop them coming into the system in the first place.”
“The second point to emphasise is that legal aid should not necessarily be seen as a silo,” said Sandbach, “but rather as part of a package of support that people need when they interact with the justice system and public services. That includes assisted digital support if you are engaging in any kind of remote process and hearing. It is about not just the legal advice but the other support, the emotional support—for example, support for people in court and, critically, the assisted digital support to enable you to access the systems appropriately. “
9. More research needed!
“I, and others, are calling for more data to be gathered so that government bodies, independent academics and others can scrutinise this experience,” said Susskind. “We have here a major unscheduled pilot or experiment. Frankly, I have been speculating for years that these technologies could improve our ways of working, but there is no evidence from the future, as it were. We now have a massive load of evidence, but we are not capturing it well enough,” he added. “If we are to use this experience to help reform our courts system and to take the best of this new way of working to improve access to justice, we simply must know more”.
“Because we moved so quickly, assessing the overall impact of video or remote hearings on the interests of justice has, frankly, not been easy,” said Buckland, but “we are very committed to consistently and regularly refining our practices and trying to obtain as much learning as possible from this.”
Davis recalled that “Natalie Byrom produced a report back in October 2019. She went through in exhaustive detail the kind of information we need about people so that we can work out who are the people that the system really needs to look after. By that, I mean details about whether they are litigants in person, about mental health, race and the digitally excluded. That kind of information is not available and has been asked for for some while.”
Byrom herself explained what she thought was needed: “The first thing that needs to be done is that HMCTS needs to collect better management information on the cases that are proceeding and on the characteristics of the parties who are bringing those cases; particularly data that would enable them to monitor the impact of remote hearings on individuals with protected characteristics under the Equality Act.” She pointed out that “If it had implemented the data collection that we suggested in October 2019, we would be in a far better position to understand the impact of what has happened during Covid to vulnerable court users.” There was also “an urgent need to capture data on how many hearings have taken place in private during this period, because the practice direction allows for that to happen where it is impractical to broadcast the hearing or make it open to people.”
“We need to know about the experience of the people who are in the system,” said Genn. “In particular, we need to know about the experience of somebody who loses in the system. Do they think that they have lost in a process which they felt was fair and which they could participate in? Do they feel that they were heard and that the judge was listening to them? These are the aspects of procedural fairness. We also need information about the different outcomes from using the different kinds of technology.”
Sweeting said there had been problems getting data relevant to the impact on the profession, such as level of adjournment in county courts and tribunals, but having been promised it in April, “We are still waiting for it some weeks down the line.”
Acland-Hood accepted the need to collect more data about users in the system, saying: “We are extremely grateful for the work that Natalie did on the report that she wrote for us. We will accept its recommendations.” She explained that the legacy systems still in use, particularly in civil litigation, were not designed to collect the necessary data, but that where systems had been reformed, they were much better at collecting data. She also said, perhaps ominously, “There is also a fundamental question about how data is shared and what uses we allow it to be put to, which takes us into some quite fundamental constitutional territory.”
This post originally appeared on the Transparency Project blog and is reproduced with permission and thanks. Featured image: Life On Super 8 via Pexels.