The role of the magistracy: follow-up Contents

5Court closures and court reform

Our predecessor’s main conclusions and recommendations

74.While our predecessor Committee had some evidence identifying advantages of rationalising the magistrates’ courts estate, it received substantially more evidence of adverse impacts on both magistrates and court users. Although there were no objections in principle to the use of non-traditional buildings as court venues (so-called “pop-up” courts), it was recognised that certain risks were involved, such as the absence of a secure dock. Magistrates were enthusiastic about using modern technology but concerned about delays in implementation of infrastructure projects and the poor performance of some digital equipment. The Committee recommended a travel standard of no more than one hour by public transport for at least 90% of magistrates’ court users and that urgent consideration be given to addressing security risks in non-traditional court buildings.89

The court reform programme

75.Our predecessor’s 2016 inquiry was completed just after the Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals set out their vision for reforming courts and tribunals in England and Wales while maintaining a just, proportionate and accessible system.90 Their statement outlined a transformation programme that would make greater use of technology, including development of a single online system for starting and managing cases across the criminal, civil, family and tribunal jurisdictions, replacing paper filing systems. Some cases would be handled entirely online and “virtual hearings” would be made available, using telephone and video links. As a result, fewer courts would be needed and court closures would fund a smaller court estate with more modern buildings. The Government had committed to investing more than £700 million in modernisation of courts and tribunals and over £270 million more in the criminal justice system.

76.In January 2018, the Ministry of Justice and HMCTS launched its “Fit for the future” consultation on the proposed strategy for HMCTS’s approach to court and tribunal estate reform, set in the context of the wider modernisation work under the court and tribunal reform programme.91 Separate consultations were launched on the proposed closure of eight more courts, six of them magistrates’ courts. The “Fit for the future” consultation sought views on a modified approach to the travel standard used to determine decisions on court and tribunal locations: that nearly all users should be able to attend a hearing on time and return within a day.  We wrote to the then Minister in February 2018,92 questioning the proposed travel standard, for which—in our view—no convincing policy justification had been offered, and pointing out the potentially indirectly discriminatory impact on older people, women with young children and people with mobility impairments. We also expressed concerns about virtual hearings increasingly taking the place of physical access to hearing centres, in the absence of any evaluation of pilot projects. The then Minister said she would ensure that these points were taken into account as part of the decision-making process following the consultation.93

77.The Government published its response to the “Fit for the future” consultation after we had finished taking evidence. One of the principles it has adopted for deciding on any further reduction to the court estate is that the journey times to court should be “reasonable”. This will include considering whether the “overwhelming majority” of users would be able to leave home no earlier than 7.30 am to attend their local court and return home by 7.30 pm using public transport if necessary; other factors such as the cost of journeys and the needs of vulnerable users will also be taken into account.94

Magistrates’ court closures

78.At the time of our predecessor’s report, 93 magistrates’ courts had been closed under the Court Estate Reform Programme of 2010–2014, and a further 43 were expected to close. Recent analysis by the House of Commons Library shows that, from 2010 to 2018, around half (162 out of 323) of magistrates’ courts were closed, with some significant local effects, as illustrated by the map below. 95

Source: List of courts from HM Courts & tribunals service (CTS) Court Finder and from information supplied by HMCTS, Distance calculations from centre ONS Output Areas to nearest Magistrates’ court.
Note: Distances are straight lines between the two points, so may not reflect the distance by road or rail.

79.There appears to have been almost no research on the effect of magistrates’ court closures on court users. An academic study of the effect of the HMCTS decision to leave the county of Suffolk with only one court house (in Ipswich) found that defendants, defence witnesses and defence advocates were perceived to have experienced particularly negative impacts; for example, a doubling of time and money costs and an increase in warrants for non-appearances by defendants living in certain parts of the county.96

80.The topic of court closures was discussed at our evidence session with leadership magistrates. Jo King JP noted that some magistrates found replacement courts too far for travel: “I do not have figures for it, but, anecdotally, I am aware that most courts that have closed have lost some magistrates on the back of that closure.”97 There had also been an impact on recruitment patterns; Mrs King gave the example of Sussex Central, where the closure of Lewes magistrates’ court in 2011 led to a high proportion of new recruits to the magistracy coming from Brighton and surrounds and few from further away in the area:

Common sense tells us that, if courts are reduced and become more centrally located in large urban areas, it is likely that the role of the magistrate will be less attractive to those who live a long distance from the court. These are unpaid roles. We already have magistrates in some areas who travel for two hours to get to their local court.98

81.Duncan Webster JP spoke about “huge public concern” in North Yorkshire about proposed closure of the Northallerton courthouse, on which HMCTS had consulted in January 2018: “Nearly every magistrate on the bench wrote. County Councils wrote, as did district councils, parish councils and members of the public [ … ] There were over 800 responses”99 Nonetheless, HMCTS decided to close the court.

82.Among magistrates who participated in our informal session, many had experienced adverse impacts from court closures, and some emphasised the effect on other court users as much as the impact on magistrates themselves. It was suggested that the Government’s estimates of travel times were based on “flawed assumptions” that people travel by train; in reality, witnesses/defendants may have to catch two or three buses to get to court. Some questioned whether money was actually saved, as trials sometimes had to be adjourned when witnesses or defendants did not turn up. Others thought that more effort should be made to ensure that magistrates sit in their local court as far as possible, to reduce travel time.

83.Sue Furnival JP wrote about the impact of court closures on a particular area of considerable rural poverty:

from the county town, it is over £15 for a return rail ticket and a 3 hour round trip with a change in Birmingham. I can’t find a bus which arrives by 10.00a.m. The journey is two and a half hours one-way and involves at least two buses. Most people who need to take public transport will live some distance outside the county town, adding to the time and expense.100

She told us that “brigading” remand cases to a courthouse in a different county meant that magistrates from her county who wanted to maintain competence in dealing with remands had a round trip of between 60 and 100 miles and were often reluctant to make the journey.101

84.The Senior Presiding Judge, Lady Justice Macur, accepted that uncertainty about court closures created anxiety for magistrates, although, in her view, this was sometimes “fear of the unknown.” She had concluded from her discussions with magistrates affected by court closures that, while some had been inconvenienced by having to travel further afield, their primary concern was for other court users. She considered that there might be several reasons underlying a magistrate’s decision to resign:

Undoubtedly, there are those who have said, “I cannot travel further than I have been travelling and, therefore, I will resign,” but it is wise to be cautious about those decisions, because it can often be an accumulation of things. [ … .] The largest number of resignations, rather than retirements, appeared to be at the time of the introduction of digital working.102

85.The then Minister, Lucy Frazer QC MP, pointed out that 41% of courts had been operating at half their available capacity in 2016–17:

As the Ministry of Justice, we have to ask ourselves: do we keep open certain courts that are not being used well from a cost perspective when we could use that money better in other ways, or do we keep open a physical building because it has some advantages? We need to look very carefully at the best use of our money.103

86.We also asked Ms Frazer whether any analysis was being done to understand why people do not turn up to their hearings. She responded by stating that “[p]eople have always not turned up to their hearings”; Departmental evidence did not indicate that closing courts had an impact on failure to appear. When we pressed her on this point, particularly with regard to anecdotal evidence of court closures affecting the ability of vulnerable young women to attend public law family hearings, she agreed that this should be considered carefully if further court closures were contemplated. She offered to provide us with data on “failure to appear” rates, but subsequently wrote to us to explain that this data was not in fact collected.104

87.The programme of court closures has created challenges for magistrates that have not necessarily been recognised and has led many to worry about the impact on other court users. We intend to return to this issue in our forthcoming report on court and tribunal reforms.

88.We recommend that, as soon as practicable, the Ministry of Justice begins quarterly publication of national data on “failure to appear” rates in magistrates’ courts, broken down by region and by individual courts.

Digital processes and video links

89.Through its court reform programme, the Government aims to reduce the number of criminal cases requiring a physical court hearing by around half—from 1.7 million to 0.9 million each year—using the following means:

90.The then Minister, Lucy Frazer QC MP, emphasised that the reform programme would have a user-centred approach:

We need to ensure that we give [court users] justice, wherever and however that is, through the means most suitable and efficient for them. That might be in a traditional court building; it might in a civil case be with an online system, conducted completely remotely; it might be through some sort of video function; and it might be an alternative provision. [ … ] We have very open minds on all of them … . but we need to find out what works for individuals, at the same time as spending taxpayers’ money wisely.106

91.We asked the then Minister how she proposed to mitigate the potential impact on the magistracy of abolishing LJAs—for example, having to travel to courtrooms further away and losing their connection with the local magistrates’ bench. Ms Frazer said that the future of LJAs was still being looked at. While she recognised the importance of local justice to magistrates, remote and video hearings would mean that it did not matter if a magistrate heard a case relating to another area. She continued:

we also need to ensure that we deliver an efficient, fair and proportionate justice system that works well. If we can do that through other means, we should look at them.107

92.The Magistrates Association told us that it was supportive of the aims behind the reform programme, but that efficiency should never come at the expense of “a fair and effective system”. It had concerns about specific reforms:

including an overreliance on video and on ‘virtual hearings’, the delegation of powers from judicial officer holders to legal advisers, and (if it re-emerges) the so-called automated tier (where cases are dealt with online without the involvement of a judicial office holder … .). Magistrates are also concerned about an increasing reliance on technology, when at present it does not always work reliably.108

Similar doubts about the functionality of video links were expressed by Phil Bowen, Director of the Centre for Justice Innovation, who said: “We have just shut courts and are hoping that our video technology works as it comes on stream. I do not think that is an adequate policy response.”109

93.Participants in our informal evidence session considered video links suitable for police officers, expert witnesses and vulnerable witnesses, and more generally for first offences. However, there were concerns that they did not work well for vulnerable defendants, particularly if unrepresented. Another negative factor was considered to be reduction in support from court staff, as was the new postal requisition system,110 which some thought responsible for increases in “no shows” for hearings. The increase of litigants-in-person in the Family Court had put additional pressures on magistrates, as hearings took considerably longer and different skills were required.

94.Our evidence suggests that, while magistrates do not object in principle to the introduction of digital processes and video hearings, many have important concerns relating to access to justice, as well as concerns about the effect of reducing HMCTS staff at courthouses. We will consider these issues in more detail in the course of our inquiry into court and tribunal reforms.

The use of alternative court venues

95.The Ministry’s January 2018 consultation on its future strategy for the court and tribunal estate explained that the Government might consider whether supplementary court and tribunal provision could meet the needs of users who would find it difficult to travel to a courthouse, for example because of lack of access to transport, financial hardship or mobility problems. 111 The consultation paper listed some examples of court services being delivered from non-traditional buildings in England and Wales, including the following:

96.Concerns about security in these so-called “pop-up” courts had been identified by our predecessor committee, as alternative venues would not be expected to have a secure dock. Phil Bowen, Director of the Centre for Justice Innovation, supported the idea of alternative court venues, suggesting that the question of security had been “overdone”.112 His organisation was seeking to engage with HMCTS on the idea of pop-up and flexible courts: “I am not saying that they agree with it, but we definitely have at least started that engagement”.113 On the other hand, Lady Justice Macur emphasised the importance of security in alternative court venues, recognising that the level of risk often depended on the type of case: “If you are coming to renew your fishing licence, for example, there is little chance that you will necessarily throw a strop … “. 114 Based on her visit to the court facility in Kendal, where cases were triaged, she observed:

First, there has to be a facility to separate different parties, if possible; there needs to be staffing and the facility to manage behaviour in the room being used as a courtroom. Unfortunately, sometimes you need a secure dock. In family cases, you need to separate parents who may not be seeing eye to eye on many things, or separate parents from local authority social workers.115

She also pointed out that previously the gravitas of a court room, “bespeaking the administration of justice, the rule of law”, could be an effective inhibitor “for the behaviour of those who perhaps are not now so inhibited.”116

97. Jo King JP thought that alternative venues would have fewer security issues arising from family cases than from crime cases. Nonetheless she was aware of the lengthy travel times often involved in bringing young defendants to court, particularly those remanded in custody who may have to travel in prison vans that are unsuitable for them. In her view, “it makes perfect sense to try to take the court to them rather than them to the court.”117

98.Participants in our informal evidence session had differing views on using alternative court venues. Some thought this was a good idea in principle because it “takes justice to the people”, but considered that careful decisions should be made about whether a case was suitable for this type of setting; for example, separate entrances might be needed for victims and defendants. It was suggested that a protocol might help determine which cases were suitable for non-traditional venues. Once again, security risks were mentioned, as well as the need for a compatible IT system. It was thought important to preserve the formality and integrity of the court setting, while making it a less distressing venue for hearing cases.

99.Lucy Frazer QC MP agreed that the question of security in alternative court venues was “one of the issues we need to think about.”118 While her Department maintained an open mind on what works, it had to satisfy everyone, including for example, victims of domestic abuse and members of the judiciary who had expressed concerns about their own security: “We have to weigh those things against our needs and the duty of the Lord Chancellor to provide a fair and efficient court system.”119

100.The Government response to its Fit for the Future consultation, published after we finished taking evidence, sets out its new principle on using what is now termed “supplementary provision”:

Where it is used, supplementary provision, which involves the delivery of court and tribunal services outside of the fixed HMCTS estate, must be safe, secure and accessible and also reflect the dignity and authority of the court. In exploring opportunities for using supplementary provision, intended to benefit court and tribunal users by increasing accessibility and flexibility, we will ensure that appropriate case types are heard in such venues.120

101.Since the 2016 Justice Committee report, there has been surprisingly little progress in developing alternative court venues to mitigate the impact of court closures, with the exception of limited pilot projects. We recognise that certain types of case may require the security standards of a conventional court room, but that many do not, and we believe that a triage system could identify suitable cases, particularly those where a vulnerable party is involved. The new principle for identifying supplementary venues is a valuable starting point, but we recommend that HMCTS take urgent steps to put this principle into practice, with a particular focus on locations where court closures have had the greatest impact.

89 The relevant Chapter of the Committee’s report, including recommendations, can be found here.

105 Under existing “special measures” (Youth Justice and Criminal Evidence Act 1999), vulnerable and intimidated witnesses may be permitted to give their evidence-in-chief via video-recorded interviews.

110 This allows defendants to be charged with a criminal offence/summonsed to court by way of a letter.

111 See footnote 91 above

Published: 18 June 2019