2The possible consequences of reforms
Access to justice
11.Organisations representing users of the justice system identified that their main concern was that the reforms would reduce access to, and the fairness of, justice. 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 increasing efficiency may come at the expense of ensuring a fair process for all.25
12.HMCTS has closed 127 courts since 2015. It told us that this first wave of closures focussed on courts with low levels of usage, where people would not have an unreasonable distance to travel to alternative courts.26 These closures took place prior to the changes planned under the reforms taking effect, meaning people still have to travel to physical courts that are now further away.27
13.Organisations representing users of the justice system, in both oral evidence and written submissions, were critical of court closures and their impact on access to justice. The Law Society challenged the process for selecting courts for closure, saying that the underlying rationale is not always clear. The Law Society, Transform Justice and the Law Centres Network explained that court closures have made it more difficult for people to access courts, especially for those in rural communities, those on low income and those with a disability. The Law Society noted a “massive increase in the proportion of the population who are at least 20 miles from the local court.” It said some people are making the decision not to travel to court, due to convenience, but rather waiting for police to pick them up and take them.28 The Law Society and the Equality and Human Rights Commission both provided practical examples of the impact of closures on people with disability. The Equality and Human Rights Commission explained that “one of the alternative sites to Northallerton Magistrates’ Court, which was announced for closure in July 2018, can only deal with non-mobile users by prior arrangement”, while the Law Society, similarly, said that in Yorkshire, HMCTS has to take Doncaster Crown Court “out of mothballs if a defendant has disabilities”.29
14.HMCTS defended the closures, telling us that “70% of [its] buildings are within five miles of another HMCTS building” and that it expects “the vast majority of people” to be able to get to court by public transport for 9.30 am, leaving home no earlier than 7.30 am . However, both HMCTS and the Ministry conceded that, whilst access to justice is now the primary factor in deciding to close any further courts, itmay not have been in the past.30 HMCTS plans to close a further 77 courts over the next few years.31 It pointed to two specific steps it will take to ensure access to justice is prioritised going forward. First, HMCTS said that it has published a list of principles which must be followed before future closures. HMCTS also said that it is taking a more practical approach to measuring travel times to court, including analysing public transport schedules and their reliability.32
15.The closure of physical courts increases the importance of digital and online technology. We received positive feedback about progress in rolling out some services online, particularly divorce, probate and small claims processes.33 The Equality and Human Rights Commission, however, commented that 17% of rural properties do not have access to decent broadband, exacerbating the impact of court closures.34 The Law Centres Network also raised concerns that HMCTS does not recognise that digital literacy is lower among vulnerable groups, who are more likely to interact with the justice system. Transform Justice shared research that showed higher rates of digital exclusion were present in those on lower incomes, those living in social housing, people on benefits, older people and those with disabilities.35
16.Representatives of the legal profession also raised concerns that both court closures and new online processes are leading to more people missing out on legal advice and making uninformed choices. Both the Bar Council and the Law Society provided anecdotal evidence that the closure of courts had led to local legal practices also closing.36 The Equality and Human Rights Commission was also concerned that a reliance on online courts may have an impact on access to or take-up of legal advice, potentially increasing the risk that people engage in the justice system without proper legal advice.37 The Law Society gave the example of the online small claims process, where plans to extend it above the current small claims limit could lead to people incurring significant costs at the press of a button, without fully understanding the consequences. Similarly, Transform Justice told us that the Single Justice Procedure, which enables defendants to plead guilty online and choose to have their case decided by a single magistrate without going to court, has reduced engagement with the justice system.38
Evaluating the impact of reforms
17.Organisations representing users of the justice system were also concerned about the approach to evaluating the impact of reforms. In its written evidence, the Magistrates Association suggested HMCTS needed to focus on understanding the impact of reforms on court users.39 Transform Justice, the Law Centres Network and the Law Society all raised the risk of the Ministry and HMCTS pushing ahead with planned reform without first assessing the success or otherwise of experiences to date.40 Transform Justice told us that, where there is a planned evaluation, “there is no question mark as to whether [HMCTS] will go ahead”.41
18.The Ministry explained that a full evaluation of the reforms would take place at the end of the reform programme, while an interim evaluation would be completed by 2021. The Ministry also pointed to HMCTS’s approach of testing systems as they are built.42 HMCTS defended its approach to evaluation, acknowledging the tension between evaluating something formally before it has been done and making sure there is sufficient evidence.43
19.Transform Justice told us that most testing done by HMCTS is ‘process-based’ and does not look at the outcomes. We explored this issue in the context of video hearings. The Bar Council criticised the scope of the pilot for video testing, while the Law Society told us of research in the USA that found “where judges and decision-makers engage with people over a video link, they have a lower degree of empathy than when dealing with someone face-to-face.”44 Similarly, the Equality and Human Rights Commission flagged several concerns about the use of video hearings increasing unfairness, limiting access to justice and potentially impacting court outcomes.45
20.HMCTS confirmed that evaluation of video hearings is primarily focussing on how new technology is working. It remarked that part of the reason for process-based testing is that the use of video hearings is intended to be limited and that they will not be used for full criminal trials.46 HMCTS explained that existing data on the use of video in magistrates courts “made it very difficult to look back…and see whether the use of video appears to have had any impact” but that it was starting to improve this data. Although it cited some international research, HMCTS acknowledged this did not provide the answer and that it would have to “pull that learning together and test it”.47
Responding to increased demand
21.Government has a track record of changing one element of a system without fully recognising the consequences for the rest of the system, or across other government departments. Recent announcements of funding for an additional 20,000 police officers and changes to sentencing policy will inevitably affect the number of people being prosecuted, going to court, being sentenced to prison terms and being supervised by probation services. Court, prison and probation services are already under considerable strain.
22.We asked the Ministry and HMCTS to set out the operational impact of increasing police numbers. The Ministry told us that this is inherently uncertain given it does not know how the new police officers will be deployed and the type of cases they will pursue. However, it did anticipate an increase in demand for both HMCTS and HM Prison and Probation Service. The Ministry welcomed recent measures announced in the spending round for both courts and probation as recognition of the need to fund downstream parts of the system.48
23.The Ministry indicated its greatest concern was the impact on prisons, with some projections resulting in a “very substantial increase in the prison population” requiring a prison building and maintenance programme “bigger than anything that has happened in recent years.” The Ministry refused to share its estimates of the impact of increased police numbers on the prison population due to the inherent uncertainty, but confirmed that sentencing reforms would increase the prison population by 2,000 by 2030. It also shared concerns about the capacity of the probation system to cope with increased demand given it is in the midst of significant reform.49
24.HMCTS told us that it expects to see a higher number of cases in both the magistrates and crown courts. It believed that it could flex its operations to adapt to greater volumes of cases if this is properly funded. However, HMCTS did concede that at the very upper end of the projections it would have serious concerns about court maintenance if it needed to run courts at maximum capacity.50
25.We asked about the decision not to reduce the court backlog of criminal cases. The Ministry opted to reduce its allocation of court sitting days next year and therefore limit the number of judges available to sit in court, and court sessions. This will maintain the number of outstanding criminal cases in the backlog at the same level.51 The Ministry told us that it was a conscious decision to keep the backlog at existing levels, rather than direct funds to reduce it, although it keeps this strategy under routine review.52 HMCTS said that average waiting times for trials are the lowest in four years. However, those who plead not guilty are still waiting more than half a year—28 weeks—to get a trial, with those on bail waiting 21 weeks. Similarly those on remand are waiting almost 13 weeks in prison. Whilst HMCTS noted that this was the lowest for four years, both it and the Ministry acknowledged waiting times were a concern.53
25 Qq 2, 5, 8; Ev xx submission from Magistrates Association para 3.3–3.6
26 Q 97; C&AG’s Report para 10
27 Ev xx submission from Transform Justice para 3.5
28 Q 10
29 Q 12; Ev xx submission from Equality and Human Rights Commission page 7
30 Qq 95–96
31 C&AG’s Report para 11
32 Qq 95, 97
33 Qq 3, 4, 30
34 Ev xx submission from Equality and Human Rights pages 6 -7
35 Qq 31–32 and Catrina Denvir, Assisted Digital Support for Civil Justice System Users – Demand, Design and & Implementation page iii
36 Q 15
37 Ev xx submission from Equality and Human Rights Commission page 5
38 Qq 4, 7
39 Ev xx submission from Magistrates Association para 3.5
40 Qq 21, 35
41 Q 22
42 Q 122
43 Q 126
44 Qq 8–9
45 Ev xx submission from Equality and Human Rights Commission page 3
46 Q 123
47 Q 124
48 Q 45
49 Qq 46–48
50 Q 46
51 Q 50; https://www.lawgazette.co.uk/news/crown-court-sitting-days-decision-political-senior-presiding-judge/5101368.article
52 Q 50
53 Qq 52–54
Published: 5 November 2019