Conclusions and recommendations
Introduction
1.We pay tribute to Her Majesty’s Court and Tribunal Service, the Judiciary and the staff who work in the courts of England and Wales for maintaining significant levels of service during the period since March 2020. We commend HMCTS and the judiciary for demonstrating how rapidly change can be successfully made in the delivery of justice across all jurisdictions. (Paragraph 6)
2.One of the clearest lessons of the crisis response since March 2020 has been how quickly the justice system can reform when needed. Her Majesty’s Court and Tribunal Service (HMCTS) will need to continue to deliver change at pace in order to implement the recovery plan which is beginning to take shape. Continuing to do so without the spur of necessary emergency response will be a significant challenge in the long term. (Paragraph 7)
3.We recommend that HMCTS sets out how it intends to evaluate both the practical and qualitative effects of the changes carried out at pace in response to the Covid-19 pandemic. In particular, work must be done urgently to identify the effects of increased use of digital technology for the delivery of justice not only on the process and disposal of cases but on the results obtained for those whose cases and hearings have taken place; their perception on the fairness of the proceedings, regardless of outcome; and the barriers to access and understanding that may have arisen for both participants in cases and the wider public, including the media. We invite the Ministry of Justice to set out a timetable for obtaining that essential feedback. (Paragraph 8)
4.We would also warn that changes introduced in response to an emergency should not be regarded as irreversible if they can be demonstrated to have impeded access to justice or resulted in less than optimal outcomes for those whom the justice system exists to serve. (Paragraph 9)
The criminal courts
5.We invite the Ministry of Justice to demonstrate how it intends to work with the magistracy in order to deliver its recovery plan. (Paragraph 21)
6.The Covid-19 pandemic has had a major impact on the operation of the criminal justice system. By contrast with some parts of the civil justice system, technology has not provided solutions to enable trials to go ahead in the magistrates’ courts and the Crown Court at anything close to normal levels. The number of outstanding cases create the ingredients for a significant crisis in the criminal justice system. Victims of crime will have to wait longer to know whether they will get justice. Defendants awaiting trial will spend longer on remand in custody or out on bail in the community. (Paragraph 22)
7.It is remarkable that in 2020 basic data on how many cases are in progress and how many trials due is not yet available to the Lord Chief Justice, but the absence of data of requisite quality is a familiar issue within the justice system. We are as concerned as predecessor Committees at the prevalence of this issue across a range of areas: sentencing, diversity and the use of technology. We invite the MoJ and HMCTS to set out, with a timeline, how the provision of basic management information for those running the courts and tribunal system, of the type sought by the Lord Chief Justice, is to be achieved. (Paragraph 24)
8.The Committee are concerned that HMCTS does not produce data on backlogs specific to the youth courts. We recommend that the Ministry and HMCTS confirm whether this data is collected and if not, why not. If this data is collected, the Ministry and HMCTS should publish this data separately from data relating to the adult court system. (Paragraph 25)
9.One of the core lessons of this crisis is that the courts which are the front line of criminal justice need to run in such a way that their capacity can be increased in response to demand. Closing courts and reducing court capacity before implementing reforms that can increase capacity, either through technology, staffing or changes to the estate, left the criminal justice system in a difficult place going into this period of crisis. (Paragraph 26)
Civil courts and tribunals
10.The Committee is concerned that Covid-19 should not be used as an excuse for bringing in permanent changes without prior consultation and suitable evaluation of their effects. (Paragraph 37)
Technology and the courts
11.While legal practitioner satisfaction with the use of digital technology in the civil courts is welcome, there is an absence of data so far on how that has affected lay users who are using the system or their satisfaction with the process and outcome of their hearings. (Paragraph 40)
12.We welcome assurances from the Lord Chief Justice and the Chief Executive of HMCTS that no one unable to engage digitally with the court and tribunal system will have to do so. There must be a particular focus on the interests of more vulnerable court users, including children, disabled people and those with specific communication needs. This is not simply a matter of the most high-tech kit and strongest wifi. HMCTS must ensure adequate engagement, comfort and comprehension on the part of all court users, irrespective of their computer skills and knowledge of legal process; this may require a physical hearing if justice is to be delivered to them fairly. The interests of vulnerable court users must be protected, including those of people with disabilities. Even the most high-tech kit and strongest wi-fi are no proof against the engagement, comfort and comprehension of those whose computer skills and knowledge of legal process may require a physical hearing if justice is to be delivered to them fairly. (Paragraph 53)
13.The Committee is concerned that as yet there has been no judicially or government commissioned, review of the increased use of remote hearings in criminal cases in either the magistrates’ courts or the Crown Court during the pandemic. (Paragraph 62)
14.In light of the Equality and Human Rights Commission’s recent findings, we recommend that the Ministry of Justice commission an urgent review that evaluates the effect of Covid-19 measures in the magistrates’ courts and the Crown Court. (Paragraph 65)
15.We recommend that HMCTS commissions research to establish how the principle of open justice should apply to remote hearings. That should include research into how the public—not just the media—can ‘attend’ hearings. In the context of the emergency service being provided during the pandemic, but only in that context, we accept the Lord Chief Justice’s statement that the requirement for open justice is generally satisfied by journalists being admitted to hearings. A restoration of full public access to hearings is, however, necessary to the provision of open justice as soon as circumstances permit it. There is a danger during this extraordinary period that the principle’s role within the justice system will be eroded by accident. (Paragraph 69)
16.It is particularly worrying that when it comes to evaluating the impact of technology, we know the least about those who are most in need of support. We support the call from the authors of the Civil Justice Review who state that “the most pressing priority relates to the need to understand the experience of non-professional court users, particularly those who are considered vulnerable under existing law and practice directions, those with protected characteristics and those who are litigants in person.” (Paragraph 73)
17.We recommend that HMCTS set out a policy to ensure that court users, particularly those who are or may be considered vulnerable, are sufficiently able to follow and participate in virtual processes. This policy should specify how such checks are to be carried out and which official of the court is responsible for making them. A report should be made by that official to judges or others conducting proceedings to the effect that participants are able to understand what is being done and participate as appropriate before proceedings commence or continue. (Paragraph 74)
The recovery plan
18.We welcome the fact that the Government “is canvassing and developing policy options” on future provision of jury trials. However, we regret that this process appears to be going on behind closed doors through informal discussions rather than through a transparent policy process. The committee notes that the Scottish Government produced a discussion paper on criminal trials during COVID-19 to inform parliamentary discussions in April 2020. The Scottish courts are going in a different direction, by relying on virtual courts for summary criminal cases. We do not believe replacement of some types of jury trial with trial by judge and magistrates is appropriate. (Paragraph 79)
19.The Committee recommends that the court and tribunal reform programme is reformulated in order to facilitate debate and engagement over which previously planned or newly introduced measures will be kept for the long term. It is vital that long-term decisions are taken after consultation with all relevant stakeholders. It would be beneficial if HMCTS could outline how the extraordinary measures taken fit within the overall reform programme. Our understanding is that the programme has been “accelerated”, which we welcome. We would be interested to know what this acceleration means for the overall timescale and the long-term goals of the programme. (Paragraph 82)
20.The Committee would welcome an update on how much further investment there will be in the reform programme following the measures taken to respond to Covid-19. (Paragraph 83)
21.We welcome the Lord Chancellor’s moves to increase the number of court sitting days after significant reductions in recent years. More court sitting time will be an essential element among steps to deal with the growing number of outstanding cases in the court and tribunal system. We take this opportunity to announce that we will on the day this Report is published launch a full new inquiry into Court Capacity. (Paragraph 89)
22.HMCTS should explain the long-term role of supplementary venues and should also set out how Covid-19 will change the long-term approach to the estates reform programme. (Paragraph 93)
23.Access to justice is a fundamental right, and as the backlog of cases increases, more and more people are waiting for their day in court. We welcome the Government’s attempts to reduce the backlog by thinking beyond simply increasing sitting days, but any new initiatives must not merely remove one barrier to justice and replace it with another. Therefore, we urge the Government to ensure that access to justice remains at the heart of its proposals and works with all court users as it develops its plans to tackle this problem. Furthermore, it will be necessary to ensure that problems with the physical court estate are addressed, otherwise any attempts at addressing these issues will be sabotaged by the Government’s own court reform programme. We invite the MoJ and HMCTS to set out a comprehensive plan for how the backlog in unheard cases will be dealt with, including details of additional provision of court premises and sitting hours, proposed timelines for reducing the backlog and estimates of when the number of cases outstanding will be returned to pre-Covid-19 levels or lower. (Paragraph 94)
24.We commend the Lord Chancellor to capitalise on the momentum built up over the last four months to build the capacity of the court and tribunal system for the long term. (Paragraph 96)
Published: 30 July 2020