Transforming courts and tribunals Contents

2The possible consequences of reforms

Access to justice

15.Our non-government witnesses and many of the written submissions we received identified that their main concern was that the reforms would reduce access to justice and the fairness of its outcomes. They told us that they were not satisfied that alternative methods of handling cases would maintain the integrity of the justice system and were concerned that increased efficiency was at the expense of ensuring a fair process for all. The prospective changes that illustrated this most clearly were court closures and the increased use of video or virtual hearings.31

16.HMCTS closed 258 courts between April 2010 and December 2017.32 HMCTS told us that the closures were because court buildings were under-utilised, that work could be accommodated in other courts and that people would not have an unreasonable distance to travel.33 However, Resolution, the Law Society and Transform Justice thought that the criteria for closing courts were not transparent and specifically questioned HMCTS’ justification of low utilisation rates given these could be the result of the lack of judges to lead hearings rather than a lack of cases. Resolution told us that it is essential to ensure that suitable alternative provision was in place before closing a court. In the case of Chichester, ‘pop-up’ courts in local council offices were being considered.34

17.Resolution told us that it had conducted a survey of its members on the impact of court closures on travel times which found that 88% of those who had seen their local court close reported increased travel times for them and their clients. In the case of Chichester, some cases are being sent to courts over 80 miles away which can mean some people are unable to attend their appointments, particularly those with childcare or caring responsibilities. Its survey also found that members reported slower processing of applications, offers and other court documents and Resolution attributed this to the closures and staff shortages.35

18.Court closures could also lead to a rise in missed court appointments and may contribute to higher costs for the public purse for example costs associated with rescheduling hearings, wasted court time and having to arrest or detain defendants who fail to attend court. Transform Justice told us that local court closures had led to an increase in the number of people who fail to appear at court. However, HMCTS asserted that there was no statistically significant change in the rate of people who failed to appear at court in the years of the greatest number of court closures.36

19.As part of its plans to move cases out of the physical courtroom, HMCTS is proposing to introduce “virtual hearings” across the court system as well as in tribunals. It already uses video-links in some parts of the justice system. For example, vulnerable witnesses can give evidence by video, and defendants can appear remotely via video links from prison in hearings that are early in the process.37 HMCTS told us that it wants to widen use of video-links and introduce “virtual hearings”, where all participants can log in remotely to an online court including judges, lawyers, witnesses and defendants. It claimed video hearings can reduce unnecessary disruption for prisoners as they do not need to be moved and prevent time being wasted travelling to court for short hearings. It has engaged the London School of Economics to evaluate its work with video-links and virtual hearings, but explained that this was not yet sufficiently advanced to be able to tell us the results.38

20.Although representatives from the legal profession told us that they welcomed the use of video hearings for administrative issues to progress cases, they were less supportive of the widespread use of the technology for sensitive hearings. They were particularly concerned about how the changes would affect the ability of vulnerable people to participate in hearings, particularly those with mental health problems, learning difficulties, with English as a second language, and those without legal representation. The Law Society asserted that “face to face engagement delivers understanding and communication that is lost when you deal with video-links” and that it was not satisfied that alternative means of dealing with cases would properly protect fairness in the system. Appearing in court online rather than in person could increase the risk of unconscious bias, where pre-existing attitudes or stereotypes can affect the way that people understand others, the way that they act, or the decisions that they make without them being conscious of it.39 Transform Justice told us that some research suggests that appearing via video can make it more difficult for defendants to participate effectively in court and can also impact on the likelihood of a conviction with research indicating that individuals that appear by video link being more likely to receive a prison sentence or be deported than those appearing in person.40

21.The Law Society and Transform Justice also raised concerns about allowing people to make a plea online, particularly, the ability of people to make an informed choice without access to legal advice and understanding the implications of pleading guilty. The Law Society asserted that while people could make a claim online, it was still crucial that they received legal advice on whether they had a valid case, what evidence they needed to produce, whether a defence was reasonable, and at what level they should settle a claim. HMCTS told us that it stills expects people who enter pleas online to have a conversation with a legal advisor before entering their pleas. The Ministry asserted that online systems can provide better opportunities to give people clear warnings about the implications of their actions. However, it recognised that digital systems will not suit everyone and confirmed that it would retain the option of using paper forms and providing telephone and face-to-face support for those who need it.41

22.We received written evidence from journalists who raised concerns about the impact of the reforms on the concept of open justice, and stressed the importance of public and media access to court proceedings. Visibility and scrutiny of the justice system are important to build public confidence that decisions and outcomes are just. The submissions raised practical issues on how journalists can continue to get access to information, court staff and hearings when activities are conducted online.42

Wider financial implications

23.We have in the past highlighted the risks of Government not understanding the implications of changing one element of a system on the rest of the system, or across other government departments. Changes in one part of government often lead to costs being shunted to another and this could well happen here, for example in prisons, when prison officers will be diverted from usual duties to supervise attendance at virtual hearings.43 We also heard an example where delays to granting divorces in Bury St Edmunds divorce centre, arising from staff shortages, may have led to individuals having to seek state support for housing and benefits while they wait for their financial situation to be resolved.44

24.We asked HMCTS how it is managing the risk that changes to the courts system will have wider consequences elsewhere in the justice system. It told us it is making small-scale changes and testing them to try to understand if there are any wider effects before rolling out services more widely, such as using pilots and early adopter areas to test what unintended consequences may arise and understand whether there is a ricochet effect. However, HMCTS admitted that it is extremely difficult to evaluate something that has yet to be done and that the reforms are not yet far enough advanced to say for certain what the impact will be. It did accept that some changes are not cost-neutral such as the need to invest in a video custody suite but the longer term savings from not having to transport prisoners to and from court would make it worthwhile.45

25.We asked HMCTS to explain how it was trying to understand the costs of other agencies within the justice system. It explained they had established a Criminal Justice System Integration Board bringing together the police, HM Prison and Probation Service, the CPS and the Legal Aid Agency to work on understanding the costs and benefits of the reforms. It told us that it was not yet in a position to know where the costs will fall, or how to pay for them, but spoke of constructive conversation between the various parties and the ambition to jointly create a cost model together to test what combination of practices might work best. For example, a longer court day could mean more people could be heard in court but may mean more people are in the police station in the day with potentially fewer overnight. However, running hearings later in the day could also mean the added costs of bringing people late to prison.46

Balancing competing pressures

26.The Ministry is undergoing significant change in every area of its business.47 We have previously commented on elements of these in our reports on offender monitoring tags,48 probation and rehabilitation49 and mental health in prisons.50 The National Audit Office has observed that every element of the Ministry’s services are under significant pressure and its ability achieve its objectives and live within its spending plans will depend on its ability to manage the risk that its transformation programmes do not deliver to plan.51

27.The Ministry recognised that its constrained budget was creating pressure to reform and modernise services and that it could not “stand still and run public services with a diminishing budget”. It told us that it was doing its best to reform and improve and to balance priorities and accepted this was very challenging. We asked how the Ministry would prioritise should the need arise, but the Ministry told us that it was not in a position to give its views on this. HMCTS told us that it would be premature to decide without first learning from the services that have been made available. HMCTS said that the reviews by the Major Projects Review Group are the vehicle through which funding and prioritisation decisions will be made. The reviews are expected at the completion of the next stages in the programme with the next one due in January 2019, followed by another in May 2020.52

28.The NAO reports that HMCTS underspent against its budget by £133.3 million and expects to carry this forward to use in future years. HMCTS told us that is not actively seeking to smooth its spending between years unless the decisions also support value for money. Instead it said it would rather engage with the Treasury on shifting the money to where it is best spent. It spoke of having three lines of defence to manage its funding: within the wider Ministry budget, within HMCTS and the programme itself.53

31 Qq 2, 5, 8; Magistrates Association (TCT0007)

32 House of Commons library debate pack, CDP–0081, Court closures and reform, 26 March 2018, p 30

33 Q 70

34 Qq 20, 24–25

35 Qq 7, 22–23; Resolution (TCT0013)

36 Qq 26, 71; Transform Justice (TCT0014); O Adisa and S Hallsworth, Access to Justice: Assessing the impact of the Magistrate Court Closures in Suffolk, December 2017

37 Q 120

38 Qq 113, 116

39 Q 8, 10–13

40 Qq 13, 15–16; Transform Justice (TCT0014); Ministry of Justice, Virtual Court pilot: Outcome evaluation, December 2010

41 Qq 8, 97, 121, 127, 138

42 Q 12; News Media Association (TCT0015); Transparency Project (TCT0009); Mark Hanna (TCT0010)

43 Qq 109; C&AG’s Report, para 3.8

44 Q23

45 Qq 103, 107–109, 113, 118

46 Qq 59, 110–112

47 Q 89

48 Committee of Public Accounts, Offender-monitoring tags, Fifteenth Report of Session 2017–19, HC 458, 24 January 2018

49 Committee of Public Accounts, Transforming rehabilitation, Seventeenth Report of Session 2016–17, HC 484, 23 September 2016

50 Committee of Public Accounts, Mental health in prisons, Eighth Report of Session 2017–19, HC 400, 13 December 2017

51 National Audit Office, A Short Guide to the Ministry of Justice, October 2017

52 Q 84–90

53 Q 85–86; C&AG’s Report, para 2.10

Published: 20 July 2018