Summary
The justice system is fundamental to the relationship between the state and its citizens. It is the source of redress and of punishment. Its quality must not be compromised, even when major challenges threaten its usual modes of operation.
There has been a monumental effort by all working in courts and tribunals to maintain a functioning system despite the COVID-19 pandemic. Hearings rapidly moved online, new temporary court rooms were opened and buildings were adapted to facilitate social distancing. But recognition of these significant efforts should not obscure the scale of the challenges now facing our courts and tribunals.
The sudden shift to remote hearings has stretched limited court resources and risks excluding court users. The backlog of cases, which predated the pandemic, has reached record levels. The impact of virtual hearings across the justice system remains fundamentally unclear in a number of respects, as insufficient data is being collected and analysed by Her Majesty’s Courts and Tribunals Service (HMCTS).
A system under strain
The justice system should be sufficiently resilient to function well when confronted with external threats. Yet justice in England and Wales was placed under significant strain in the decade preceding the pandemic. As a result, our courts and tribunals were not well placed to respond to the unprecedented challenges posed by COVID-19.
When the first UK-wide lockdown was announced, courts and tribunals in England and Wales were already facing a number of significant and long-standing challenges. Government funding had fallen significantly (by 21% in real terms in less than a decade), legal aid budgets had been radically reduced (by nearly 40% in less than a decade), court buildings had been closed, sitting days had been reduced, and fewer staff were employed by HMCTS.
Actions that might have been capable of alleviating the effects of the pandemic had not been taken. A programme of reform to the courts service, intended to modernise court technology and processes (the HMCTS reform programme), was behind schedule and struggling to deliver the improvements sought. Neither the Government nor HMCTS had conducted the necessary risk assessments to prepare the courts service for the devastating impact of COVID-19.
Reduced funding for the justice system in the preceding decade left our courts and tribunals in a vulnerable condition going into this period of crisis. Without adequate resources, technology or guidance, our much cherished justice system remains at risk.
The move to remote justice
Remote hearings for cases were, and continue to be, necessary to maintain the operation of the justice system, and to tackle the backlog of cases in the short to medium-term. In the longer term, remote hearings for some types of cases will be the best way to deliver justice, speeding up court processes and improving transparency. We recommend that the Government sets out a revised timetable within three months for completing the HMCTS reform programme, including when it will provide the resources required to deliver it.
Some of the new technology introduced to the courts service in recent months has not been fully embraced by court users. Use of the Cloud Video Platform, a new IT platform developed for use in the criminal courts, has started to decline since its introduction, and police have recently withdrawn support for video remand hearings on the Platform. This represents a missed opportunity to use technology to ease pressures on the court system. We recommend that the Government sets out what lessons it has learned from the uneven adoption of new technologies during the pandemic and how it plans to support public bodies in making full and effective use of digitised court services.
The sudden shift to remote hearings has stretched limited court resources, created new barriers to communication between lawyers and their clients, and risks excluding court users. Limited IT access, home distractions, and the more tiring nature of remote hearings all threaten to undermine effective participation. To ensure access to justice is sustained during virtual hearings, we recommend that the Government ensures clear guidance on their use is made available to all court users, judges and court staff. This will aid preparation, enhance public perceptions of fairness and help to secure procedural justice.
The interruption to the normal operation of the courts has had a detrimental impact on the publicly funded and legally aided sectors of the legal profession. The reduction in legal aid funding over the preceding decade has exacerbated barriers for accessing legal representation. We recommend that the Government increases the legal aid budget to meet the new challenges for access to justice that have arisen during the pandemic.
The backlog of cases
The backlog of cases in the Crown Court, unacceptably high before the pandemic, has now reached crisis levels. Not only are victims and defendants waiting several years for their cases to be heard, but the quality of justice is increasingly at risk as witness memories fade over time.
The backlog has also led to an increase in the number of people held on remand awaiting trial. In December 2020, 8,000 men and women, and 130 children, were being held in custody awaiting trial. Innocent until proven otherwise, but in the meantime deprived of their liberty and their ability to access justice. Justice depends on the Government setting out a clear timeframe for solving the unacceptably high backlog and for reducing the numbers of adults and children held in custody awaiting trial.
Delays to trials have made it necessary for the Crown Prosecution Service to carefully select which cases can proceed, with the result that fewer prosecutions and convictions are taking place. Backlogs in family, employment and housing possession cases are also placing a strain on the justice system. Measures to address the backlog must be effective, well-funded and implemented urgently. We recommend that the Government provides the assistance and funding necessary to ensure that all criminal cases can be tried within specified targets. The Government should also report to Parliament annually on the actions taken to reduce the backlog in the criminal courts.
In response to the growing backlog, the Government has invested more money in the courts and opened temporary Nightingale courtrooms to increase the court estate available. These are necessary and welcome steps, but they are not sufficient. At the current rate it may take several years to get the backlog back to where it was before the pandemic began. And that must not be the stopping point. We recommend that the Government sets out a plan for addressing the backlog that will reduce it well below pre-pandemic levels. This should include plans to make maximum use of existing real estate, open more Nightingale courtrooms, increase the number of sitting days and increase the number of part-time and retired judges sitting. All of this will require additional investment by the Government in our justice system, both in the short- and medium-term. This is not yet forthcoming and was not included in the Government’s Budget for 2021.
Reducing the number of jurors required for a trial has been mooted as one possible means of reducing the Crown Court backlog. It is unclear whether the Government is considering this option. Any change to the jury system, whether by allowing defendants to choose judge-only trials in serious cases, or by reducing the number of jurors needed for a Crown Court trial, should not be initiated without full parliamentary scrutiny and debate.
Remote jury trials in Scotland have succeeded in easing the pressures on the criminal courts. We recommend that the Government continues to pilot remote jury trials as a further potential means of reducing the significant criminal trial backlog in England and Wales.
Data deficiencies
The difficulties faced by the justice system during the pandemic have been exacerbated by a lack of data across the court service. High quality, up-to-date data are necessary to ensure the effective management of the courts service and enhance trust in the justice system more broadly. There are real concerns that remote hearings are disadvantaging vulnerable and non-professional court users, as well as those with protected characteristics. But the requisite data to assess and address these concerns are not available. We recommend that HMCTS sets out specific deadlines and targets for the collection, evaluation and publication of additional court data. Of particular priority are data that will enable HMCTS and the public to assess the impact of remote hearings on vulnerable court users, including whether remote hearings are having any impact on case outcomes.
The future of remote justice
The pandemic has shown that remote court access has the potential to enhance access to justice, but there is a significant difference in the experiences of professional and lay court users. Operational changes introduced in response to the pandemic should not be regarded as irreversible where they have risked undermining access to justice, open justice or consistency in the application of the law. We recommend that the Government continues to invest in and develop the technology for remote hearings and the guidance to support it, learning the lessons from its use during the pandemic. There should be an ongoing process of engaging with researchers and the legal sector to ensure that access to justice is secured via remote hearings.