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COVID-19 and the Courts Contents

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Chapter 4: Data in the courts system

241.Without adequate data, it is not possible for the Ministry of Justice or members of the public to know whether courts and tribunals are operating effectively. The collection and publication of data are therefore critical to building public trust in the justice system and ensuring court services are delivered in a way that secures access to justice. In order to review and, where necessary, improve our justice system, a robust strategy for data collection, analysis and publication must be in place.

242.Whether access to justice has been maintained or undermined by recent changes to the justice system is partly an empirical question. The Lord Chief Justice described the rapid adoption of new technology during the pandemic as “the biggest pilot project that the justice system has ever seen”.271 He told us that the shift to remote hearings provided an opportunity to “take the best of this new way of working to improve access to justice”, but the information to support improvements to the courts service was “just not available”.272

243.The lack of data on the operation of the courts was raised by a number of witnesses. Many said there was an urgent need for HMCTS to collect, analyse and publish more information to understand how the justice system works, particularly during the pandemic, and identify solutions to improve its operations and access to justice more broadly.273

A long-standing issue

244.The absence of robust, in-depth data on the operation of courts system is a long-standing problem. The need to address it was recognised by the Ministry of Justice and HMCTS in 2016. Improved data management was a key pillar of the HMCTS reform programme (discussed at paragraphs 21 to 25)274 which would “enable HMCTS to become an increasingly data-driven organisation.”275

245.In October 2017, Susan Acland-Hood said that HMCTS would “build excellent data systems into all our new systems—so that we can keep track of how well they and we are working; learn and improve; and measure the right things”.276

246.In 2018 the then courts minister Lucy Frazer QC MP reiterated the Government’s commitment to information gathering and sharing as a means of securing open justice:

“[the HMCTS reform programme] provides us with a timely opportunity to review and improve some of our practices, such as improving processes to make information readily available to the public as far as is lawful and proportionate, so that future courts and tribunals are effective for the judiciary, legal and media professionals, and the public.”277

247.In October 2019, the Legal Education Foundation published its report by Dr Byrom, Digital Justice: HMCTS data strategy and delivering access to justice.278 The report made 29 recommendations for evaluating the impact of reform and ensuring the needs of all court users were fully met in the move to digital justice.

248.HMCTS responded 12 months later, accepting the majority of Dr Byrom’s recommendations and setting out the progress made.279 HMCTS reaffirmed its ambition to “become an increasingly data-driven organisation” and said the pandemic had highlighted “the need for data to support delivery, to monitor and evaluate our response to date to inform plans for the future”.280 It said that work was under way on the 17 recommendations accepted and that it would start to collect data on the outcomes of cases across different court processes.

249.The Legal Education Foundation was unimpressed. Its Chief Executive, Matthew Smerdon, said:

“If the window of opportunity was vanishing a year ago when we first published the ‘Digital Justice’ report, it is now at risk of disappearing completely. Over the last 12 months, HMCTS has made disappointingly slow progress at moving forward on any of the major recommendations made by Dr Byrom. In our view, COVID-19 cannot be an excuse. Rather, the impact of the pandemic on the court service has shone a spot-light on why it is more important than ever to improve the quality of data collection to enable the digital transformation of the court service.”281

250.The Lord Chancellor told us: “obviously the better the data, the better the operations, and indeed the policy”.282 Susan Acland-Hood said that the prompt provision of statistics on court operations was essential for determining how the courts’ estate ought to be managed to meet the changing demands of the pandemic.283

251.Justice policy and the operation of the courts should be based on detailed, high-quality data. Robust data collection, analysis and publication are essential for enabling HMCTS to plan its services and improving access to justice, transparency and public faith in the justice system.

252.We welcome HMCTS proposals to collect and publish better quality data on the courts service. However, we are concerned that words have not translated sufficiently quickly into action. The HMCTS response to Dr Natalie Byrom’s report is framed in broad terms and lacks a clear timeline for enhancing data collation and publication.

253.We recommend that HMCTS sets out plans for implementing each of the Byrom recommendations that it has accepted, the steps that will be taken, and the timeline for doing so.

254.We recommend that the Ministry of Justice sets out in greater detail its plans for data reform across the courts service, specifying the short- and longer-term projects that will be implemented to enhance the collection, analysis and publication of courts data.

Courts data during the pandemic

255.HMCTS took steps to improve access to data during the pandemic. It has published data showing the use of audio and video technology since March 2020.284 From June 2020, HCMTS published weekly management information showing the number of outstanding cases in selected courts and tribunals,285 and how this number had changed since early March 2020.286

256.Susan Acland-Hood told us that these data were crucial to court management in response to the pandemic, and were being used alongside internal surveys and third-party research to inform HMCTS activity.287

257.However, our witnesses identified various issues with the collection and publication of courts data.

Data collection and publication

258.The basic process of establishing what data are available to HMCTS, and how much are suited to publication, remains a challenge. In October 2019, Dr Byrom reported that simply “defining the types of data currently collected and stored by HMCTS and mapping the arrangements for accessing this data and making it available is a difficult task.” Her research found that “meeting data requests from internal and external stakeholders is a lengthy and time-consuming process that is currently under-resourced by HMCTS.”288

259.HMCTS confirmed that identifying the available data was not straightforward, as they were held in fragmented legacy systems, some paper-based, and “often difficult to access”.289 In October 2020, HMCTS stated that one of its aims was to catalogue available data to “produce a report describing … what data is already available on an open and shared basis, what data could be made available on request” and the applicable limits to releasing such information.290

260.Public access to data is an important part of an open justice system and a key feature of good government. It is vital that data on the operation of the courts be made publicly available, particularly during periods of great change, such as during the pandemic.

261.We welcome proposals from HMCTS to catalogue and clarify the data within its systems and to publish more data in an accessible form to facilitate public scrutiny. However, current commitments lack clarity.

262.We recommend that HMCTS sets out what steps it will take to catalogue available courts data, including clear timelines for making appropriate data available to the general public.

Experiences of non-professional users

263.Witnesses expressed concerns about the lack of data on the experiences of non-professional court users during the pandemic. Professor Genn said that data on the experience of professional court users (for example lawyers and judges) were more readily available than data on the experience of their vulnerable, disadvantaged, or lay counterparts.291

264.James Sandbach echoed these concerns, saying that it was impossible adequately to assess how the sudden shift to remote hearings was affecting unrepresented and vulnerable litigants: “[w]e do not know who the justice system and the advice system are not helping … there have been fewer litigants in person than perhaps might have been expected at this time”.292

265.Both Mr Sandbach and Professor Genn recognised that HMCTS would be unable to collect data about people who do not engage with the system, and that other avenues would need to be explored to assess whether the shift to remote hearings had discouraged cases that might otherwise have been brought.293

266.Professor Susskind emphasised the urgency of the need to collect data on how changes to the courts system affected different groups:

“If we are to use this experience to help reform our courts system and to take the best of this new way of working to improve access to justice, we simply must know more … we have to move beyond speculation, anecdote and the personal preferences of individual participants to something much more systematic.”294

267.In October 2019, Dr Byrom recommended that HMCTS consider introducing ID numbers for each court user. Tracking individual litigants in this way would provide a more detailed understanding of how people used the courts. Experts in privacy law and data ethics could be consulted to ensure that the data was collected and stored in a manner that respected legal and ethical requirements.

268.HMCTS did not accept this recommendation. Although it expressed agreement in principle “that HMCTS’ understanding of users of the justice system should be deepened” and that “HMCTS is currently developing approaches to this”, it explained that “[u]nique identifiers for individuals are not part of the current scope of work”.295

269.Dr Byrom also recommended that HMCTS start asking all court users 13 questions designed to assess their level of vulnerability. These included questions on disability, employment, race, and religion. Replies would be optional.296 HMCTS accepted this recommendation but, so far, this data is only being collected from those who directly engage with digital probate services. Otherwise, HMCTS “have begun with collection of data from those who engage directly with [digital Civil, Family and Tribunals] … while Divorce is scheduled for release soon”.297 This amounts to only a minority of court users.

270.Concerns have been raised about the detrimental impact of remote hearings on those who lack access to technology or who have lower levels of literacy, but the requisite data to address these concerns is not available. Access to justice is therefore at risk.

271.We recommend that HMCTS prioritises the collation of data that will enable it to identify, and the public to scrutinise, the effects of the increased use of digital technology on non-professional court users.

272.Having decided not to introduce unique identifiers for court users, HMCTS has not yet come forward with any alternative method for collecting, analysing or publishing data on how different users experience courts and tribunals.

273.We recommend that HMCTS sets out its strategy by the end of 2021 for analysing: (a) how different categories of individuals use courts and tribunals and (b) what barriers to access there are for non-professional users.

274.HMCTS has accepted the need to collect data on the vulnerability of court users, but has so far taken limited action to gather this data.

275.We recommend that HMCTS sets out its plans for collecting the 13 data points identified by Dr Natalie Byrom for assessing the vulnerability of court users. This should include a clear commitment to collecting this data across all court services, both physical and digital, within specified timeframes.

Protected characteristics under the Equality Act 2010

276.The Equality Act 2010298makes it unlawful to discriminate on grounds relating to any of the nine protected characteristics defined in that Act.299 Public bodies such as courts and tribunals are subject to the Public Sector Equality Duty, according to which they must, in the exercise of their functions, have due regard to the need to eliminate unlawful discrimination, harassment and other conduct prohibited by the Act.

277.Many witnesses expressed concern about the lack of data collected by HMCTS on the protected characteristics of court users.300 This was a particular concern in the context of the recent rise in remote hearings, which risk disadvantaging elderly and disabled litigants (age and disability are protected characteristics under the Act).301

278.In October 2020 HMCTS said that “work has already started on the collection of more consistent, higher quality data on protected characteristics … We began to ask users for protected characteristics data in live reformed services from August 2020, and will continue to do so”.302

279.There are concerns that remote justice is disadvantaging those with protected characteristics. The longer the delay to the collation and publication of the requisite data, the greater the risk that our justice system is failing to protect users against unlawful discrimination.

280.We welcome HMCTS plans to collect data on users’ protected characteristics. It is regrettable that progress has, to date, been slow and that current plans lack clear deadlines or targets.

281.We recommend that HMCTS sets out specific deadlines and targets for the collection, evaluation and publication of data on the protected characteristics of court users.

Remote hearings’ influence on case outcomes

282.The Public Law Project said that more research was needed “on the effectiveness of online hearings and the effect they have on substantive outcomes”.303 It suggested that “[a] cautious approach to the future use of virtual proceedings must be adopted until there has been systematic collection of data by HMCTs and robust evaluation of virtual proceedings, particularly in relation to outcomes and engagement levels for participants”.304

283.Professor Genn said that research suggested that a litigant’s chances of success in certain tribunal hearings appeared to depend on whether they opted for a paper or in-person hearing.305 Transform Justice said there was “growing evidence of a correlation between defendants appearing on video and receiving more punitive criminal justice outcomes.”306

284.In Government-funded studies published in 2010 and 2020, correlation was observed between defendants appearing on video and those defendants receiving immediate custodial sentences.307 Those defendants who appeared face to face received comparatively fewer custodial sentences. This suggests that dealing with defendants on video may disadvantage defendants during sentencing hearings.

285.The Government said that it was not tracking the impact of remote hearings on case outcomes. Baroness Scott of Bybrook, the Government’s spokesperson on the courts, said: “At present for most jurisdictions the only information is a manual data collection via a ‘situation report’ (to provide overall picture of use of audio/video) and is not attached to cases.” The only exception was magistrates’ courts, where “there is a case marker to show if defendant appears via audio/video”.308

286.Research suggests that the format of a hearing may have a substantive impact on the case outcome. If that is true, the shift to remote hearings in response to the pandemic must be scrutinised closely. It is vital that sufficient data are collected to assess the impact of remote hearings on outcomes. This is necessary to justify and inform the continued use of remote hearings during the pandemic and in future.

287.We recommend that HMCTS collects data on remote hearings and corresponding case outcomes so that the effects of remote hearings can be analysed and published.

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