Chapter 5: Technology and the future of the justice system
288.In May 2020, early in the pandemic, the Lord Chief Justice said that “there will be no going back to February 2020” for the courts.309 Speaking later that year, the Lord Chancellor agreed: “Returning to the status quo would be a massively missed opportunity. Although Covid has sent us some really grave and dreadful challenges, the experience of technology in the courts is one that I want to be positive about and work positively to further improve.”310
289.In Chapter 2, we considered the impact of remote hearings on the justice system during the pandemic. In this chapter we explore the future use of technology in the courts.
Future use of remote hearings
290.Virtual proceedings have been necessary to keep the justice system operating during the pandemic, maintain social distancing and prevent the backlog getting even worse. In the longer term, we heard widespread support among witnesses for their use in certain circumstances.
291.There are downsides to handling some types of proceeding remotely. Case management conferences, preliminary matters, trials without evidence, particularly where both sides are represented, and commercial cases were all seen to work effectively.311 Other types of proceeding were perceived to be less suitable, particularly those involving an assessment of credibility, asylum or benefits appeals,312 and those that involved the discussion of sensitive issues in live evidence, as in family and criminal cases.313
292.Regardless of the type of case, more data and analysis are needed on the effects of remote proceedings on the outcomes of cases and the satisfaction of participants in them (see Chapter 4). There is insufficient research at present to be certain about the effects of virtual hearings,314 but there is enough evidence to suggest that caution is required in expanding their use beyond the areas where they are universally seen to work well.315
293.Any expansion of remote proceedings will require measures to address the concerns about access to justice that arise. Inexperienced litigants, those with low literacy or digital literacy, and those with mental health or other issues, can be at a significant disadvantage understanding and participating in remote proceedings.316 Professor Genn said it was:
“quite clear already from the evidence of the Civil Justice Council rapid review, and from intelligence I am getting from people on the ground, that regular clients at the lower end of the income spectrum are not making the inquiries that we would expect; they cannot access the forms of advice that they would have done in the past”.317
294.Access to legal advice, before and during proceedings, is essential.318 Professor Richard Susskind said: “there needs to be ways for lawyers and clients to communicate with one another during the hearings, because they are not sitting together and are not able to write notes or talk to one another”.319
295.To support all this, better and more reliable technology is required alongside guidance to ensure it is used effectively and consistently. Systems should aim to minimise the burden on non-professional court users.320 For court staff and judges more investment is needed in virtual document management systems and training to use new systems.321 Professor Susskind said it was “quite hard to handle cases where there are large bodies of documents involved. We do not have good document management systems to support these kinds of hearings”.322
296.Remote proceedings have the potential to significantly strengthen the principle of open justice, but only if the technology and the processes for such hearings allow the public and the media access to them.323
297.Remote hearings can significantly improve the delivery and accessibility of justice in appropriate cases. For procedural and preliminary hearings and certain types of civil cases, properly resourced remote hearings can deliver a convenient and effective alternative to physical hearings.
298.The Ministry of Justice and HMCTS must continue to deliver technological change to enhance the capabilities of courts and tribunals to make effective use of remote hearings in appropriate cases. The impetus for change during the pandemic will need to be sustained in the longer-term, given the scale of change required and the challenge of the backlog of cases.
299.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. The pandemic should not be used as an excuse to initiate permanent changes without prior consultation and suitable evaluation of their effects.
300.We recommend that the Government continues to invest in and develop the technology for remote hearings and the guidance to support it, learning 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 during the development and implementation of technology to facilitate remote hearings.
311 Written evidence from the Public Law Project (CIC0038) and The Civil Justice Council, and: Legal Education Foundation, The impact of Covid-19 measures on the civil justice system: Report and recommendations, May 2020: https://research.thelegaleducationfoundation.org/research-learning/funded-research/the-impact-of-covid-19-measures-on-the-civil-justice-system-report-and-recommendations [accessed 1 February 2021]
312 Written evidence from a Benefits Advisor (CIC0044), Citizens Advice Stevenage (CIC0021), Council of Her Majesty’s Circuit Judges (CIC0039), the Equality and Human Rights Commission (CIC0037) and Jonathan Berkson (CIC0015)
313 Written evidence from the Equality and Human Rights Commission (CIC0037) and the Public Law Project (CIC0038). See, also, Nuffield Family Justice Observatory, Remote hearings in the family justice system: a rapid consultation (May 2020): https://www.nuffieldfjo.org.uk/app/nuffield/files-module/local/documents/nfjo_remote_hearings_20200507-2-.pdf [accessed 1 February 2021]
314 Q 24 (Professor Dame Hazel Genn), Q 135 (Rt Hon Robert Buckland QC MP) and written evidence from the Crown Prosecution Service (CIC0036)
315 Q 24 (Professor Dame Hazel Genn) and written evidence from Transform Justice (CIC0001). See, also, ‘Justice: a train ride too far? The (not so) hidden cost of court reform’, The Law Society of England and Wales (29 July 2019): https://www.lawsociety.org.uk/topics/blogs/justice-a-train-ride-too-far [accessed 1 February 2021]