Summary of conclusions and recommendations
Impact of the pandemic on the justice system
1.The reduction in Government funding in the decade preceding the pandemic left courts vulnerable going into the COVID-19 crisis. A significant number of court buildings had been closed, fewer staff were employed by HMCTS and the number of litigants in person had increased. (Paragraph 20)
2.Delays to the original timetable for the HMCTS reform programme meant that a number of planned improvements to court IT systems had not been implemented by the time the COVID-19 pandemic suddenly rendered courts reliant on remote technology. (Paragraph 25)
3.The courts were not prepared for disruption on the scale caused by the COVID-19 pandemic. The 2016 Government simulation of a flu outbreak, referred to as Exercise Cygnus, did not consider the potentially devastating impact of a pandemic on courts and tribunals in England and Wales. Risk assessments undertaken by the Ministry of Justice and HMCTS also failed to recognise the disruption that a pandemic could cause. (Paragraph 27)
4.It is regrettable that the potential impact of a pandemic on the courts, a crucial public service, was not considered by those responsible for overseeing the justice system. Had the risk been identified in advance, the urgent need for modernised court IT systems and additional court estate might have been recognised sooner. (Paragraph 28)
5.We recommend that all future risk assessments prepared by the Government, the Ministry of Justice and HMCTS consider the impact of major threats to the operation of courts and tribunals. The results of those risk assessments should be made publicly available on at least an annual basis, and include a statement of the steps that have been taken to manage the identified risks. It is essential that the operation of courts and tribunals be adequately protected as part of all future Government risk planning. (Paragraph 29)
6.The extent to which the Government adequately prepared for the COVID-19 pandemic remains unclear. The Government has not published any documentation regarding the implementation of the recommendations from Exercise Cygnus, other than a redacted version of the initial 2016 Exercise Cygnus report. (Paragraph 30)
7.We recommend that the Government publish all papers and minutes relating to Exercise Cygnus including a statement of the actions that were taken in response to its recommendations before March 2020. (Paragraph 31)
8.The rapid adoption of remote technology had an uneven impact across the courts service. Senior and appellate courts adapted relatively well to audio and video hearings. Here, the judiciary and practitioners are generally well-resourced, the issues for determination are often focussed on specific points of law and there is generally no live evidence to test. The lower courts faced greater difficulty, particularly when assessing witness evidence and attempting to cater for unrepresented litigants. (Paragraph 51)
9.Virtual hearings appear to have been effective where there has been: (a) adequate and fully functioning technology; (b) with which all parties are fully conversant; (c) deployed in preliminary, interlocutory or procedural cases. (Paragraph 52)
10.Lawyers, judges and court staff faced considerable challenges to adjust to remote hearings in short order. We pay tribute to the efforts made to keep the justice system operating during the pandemic despite challenges posed by outdated court IT systems. (Paragraph 61)
11.Acknowledging the significant efforts of those working in the courts system should not obscure the scale of the challenges that they faced. Drastically reduced funding for the justice system in the preceding decade left courts and tribunals in a difficult place going into this period of crisis. (Paragraph 62)
12.The pandemic has highlighted the necessity for courts and tribunals to be furnished with adequate funding and technology. The modernisation and digitisation of courts and tribunals has the potential to strengthen the rule of law by improving access to the law and the timely delivery of justice. (Paragraph 63)
13.We recommend that the Government sets out a timetable within three months for implementing the HMCTS reform programme, including a clear commitment to the funding that will be provided to ensure its prompt implementation. (Paragraph 64)
14.We recommend that the Government ensures training and guidance is available to all judges and court staff operating virtual hearings urgently and, at the latest, by the end of 2021. It is vital that those working in courts are comfortable with the technology used for remote hearings, and that they adopt a consistent approach to its implementation and use. (Paragraph 65)
15.The decline in use of the Cloud Video Platform (the common IT platform developed for use in the criminal courts) represents a missed opportunity to make the best use of technology to ease pressures on the justice system. (Paragraph 73)
16.The Cloud Video Platform has not been adopted as widely as might have been expected and its potential to ease demand on the criminal justice system has not been fully realised. The withdrawal of police support for video remand hearings on this Platform due to cost and service concerns is contributing to the already significant pressures on courts and prisons. This is a cause for serious concern. (Paragraph 74)
17.Video remand hearings reduce the delay between defendants being detained and appearing in court and reduce the need for prison and court services to transport defendants to physical hearings. We welcome plans to introduce legislation that will enable greater use of video remand hearings. (Paragraph 75)
18.We recommend that the Ministry of Justice, the Home Office and police forces across England and Wales make concerted efforts to increase the use of video remand hearings as a matter of urgent priority. The Government must report to Parliament on the progress made within six months. (Paragraph 76)
19.We recommend that the Government prepares and publishes a statement setting out: (a) the lessons it has learned from the uneven adoption of new technologies during the pandemic; (b) how these lessons will inform the future development and implementation of the HMCTS reform programme; and (c) how the Government plans to support the courts and other public services to make full and effective use of new technologies introduced in future. (Paragraph 77)
20.Remote proceedings were, and continue to be, necessary to maintain the administration of justice during the pandemic. In appropriate cases, audio and video hearings have the potential to enhance access to justice by increasing the number of hearings that can take place, driving greater efficiency in court timetabling, and improving access for court users with disabilities or other special requirements. (Paragraph 96)
21.Remote hearings are not appropriate in all cases or for all types of court users. Reduced face to face contact risks alienating litigants, as it can be difficult to conduct remote hearings with an appropriate level of empathy and humanity in sensitive cases. (Paragraph 97)
22.The remote format also poses a number of practical challenges that make it more difficult for ordinary people to fully participate or to represent themselves. Limited IT access or bandwidth, distractions at home, sensory impairments, or English as a second language are just some of the features that threaten to undermine effective participation. (Paragraph 98)
23.Access to justice requires that the protection of the law be accessible to all. There should not be one law for the rich, legally represented or digitally well-furnished, and another for everyone else. To limit the potentially exclusionary effects of remote hearings, greater support for court users from HMCTS, judges and courts staff is required. (Paragraph 99)
24.We recommend that the Government provides simple and accessible guidance for ordinary court users, available in advance of remote hearings, providing information on the technological practicalities of attending different kinds of hearing. (Paragraph 100)
25.We recommend that the Government ensures sufficient guidance is available to all judges and court staff on how to facilitate the needs of court users and ensure procedural justice. It is vital that those working in the justice system are sufficiently equipped to cater for common challenges and to secure a fair process for all court users. (Paragraph 101)
26.We consider the future use of technology in the courts system in Chapter 5. (Paragraph 102)
27.Access to legal advice is an essential component of access to justice. The reduction in the courts’ overall workload has had a detrimental impact on the publicly funded and legally aided sectors of the legal profession, giving rise to a real possibility of a reduction in the number of available legal advisers practising in these areas. We are particularly concerned that some users may have been unable to access legal advice at all during the pandemic, with the consequence that they have been unable to enforce their legal rights. The reduction in legal aid funding over the preceding decade has exacerbated these barriers to justice. (Paragraph 114)
28.Affordable legal representation not only enhances access to justice, it also supports the efficient operation of the justice system. Those who represent themselves in court proceedings can create additional work for judges and court staff: hearings take longer on average, and more hearings take place that could have been resolved by alternative routes with accurate legal advice at an early stage. Improving legal aid will help to ensure that the courts run as efficiently as possible to reduce the growing case backlog. (Paragraph 115)
29.We welcome the additional funding that has been allocated to the legal aid sector, but the scale of the challenges for court users and the legal sector suggests that considerable additional funding will be required in the coming years. (Paragraph 116)
30.We recommend that the Government further increases the funds available for legal aid to match the reality of need. (Paragraph 117)
31.The pandemic has exposed the systemic shortcomings in the publication of essential information related to court hearings, especially in the lower courts. (Paragraph 124)
32.We recommend that HMCTS sets out how it will improve the availability of information in the courts for the press and the public. This should include timely, complete, and consistent court listings (for physical and remote hearings alike), documents relating to cases (such as written arguments in appropriate cases), and free access to all court judgments. This work should be integrated with efforts to improve the collection, management, and publication of data on the courts (Paragraph 125)
Managing the backlog
33.The backlog in the criminal courts is neither acceptable nor inevitable. Years of underinvestment in the criminal justice system contributed to a significant backlog that predated the pandemic. (Paragraph 141)
34.The backlog has now reached record levels. The consequent delay to criminal trials is undermining the rule of law, access to justice and risks damaging public confidence in the justice system. Urgent Government action and investment is necessary to reduce the backlog in the criminal courts. (Paragraph 142)
35.We recommend that the Government provides the assistance and funding necessary to ensure that: (a) all cases in the Crown Court are tried within one year of the plea and trial preparation hearing; and (b) the average time from charge to disposal in the magistrates’ courts falls to 8 weeks or fewer. The Government should also report to Parliament annually on the progress made in respect of both matters. (Paragraph 143)
36.We recommend that the Government sets out how it is responding to the fact that court delays appear to have resulted in a reduction in prosecutions and convictions. (Paragraph 145)
37.The growing remand population and the extension to custody time limits have resulted in a serious diminution of the right to liberty and the rule of law. The significant impact of the backlog on un-convicted defendants, innocent until proven guilty, underscores the urgent need for action to reduce the backlog in the criminal courts. (Paragraph 154)
38.We welcome the Government’s decision to exclude defendants under the age of 18 from the extension to custody time limits. But the proportion of children in custody who are on remand, and the ethnic make-up of this cohort, is unacceptable. (Paragraph 155)
39.We recommend that the Government reports to Parliament by the end of 2021 on the steps it will take to reduce the proportion of children on remand in custody. Depriving a child of liberty should always be a last resort and for the shortest possible time. Alternatives to custody, such as enhanced monitoring arrangements, should be utilised wherever possible. (Paragraph 156)
40.We recommend that any further extension to custody time limits be scrutinised and debated by Parliament before taking legal effect. The extension of custody time limits is a significant policy decision with serious implications for the right to liberty and the rule of law. Adequate Parliamentary scrutiny and debate is essential for a change of such fundamental constitutional importance to take effect. (Paragraph 157)
41.Despite efforts to limit the backlog in the family courts, the number of outstanding cases remains high. Delay in resolving disputes concerning families and children can itself cause significant harm. HMCTS has estimated that it may take three years to return to pre-pandemic levels. Such a delay would be unacceptable. (Paragraph 168)
42.We recommend that the Government explores additional ways to reduce the backlog in the family courts as a matter of urgent priority. Additional funding for temporary courtrooms in suitable buildings, greater use of retired and part-time judges, and greater use of alternative dispute resolution would help to reduce the backlog in the family courts. (Paragraph 169)
43.The backlog in the Employment Tribunal could lead to justice being delayed for many who are already significantly suffering as a result of COVID-19. The prompt resolution of legal disputes is critical for the lives and well-being of individuals, as well as the effective management of businesses. The timely delivery of justice also underpins the rule of law. Backlogs in employment and housing repossession cases threaten to undermine these fundamental aims of our justice system. (Paragraph 174)
44.The stay on housing possession claims protected private and social renters from eviction during the COVID-19 pandemic, and was a significant step in providing security of tenure for most tenants in England and Wales during a difficult period. However, it has contributed to the backlog in the courts, further undermining the timely delivery of justice and placing additional pressure on the justice system. (Paragraph 177)
45.We recommend that the Government considers how alternatives to litigation might be implemented to alleviate the volume of housing repossession cases awaiting disposal in the courts. (Paragraph 178)
46.We welcome the Government’s investment to increase court capacity to help reduce the backlog. HMCTS worked hard to adapt court buildings after the first lockdown and Nightingale courtrooms have opened at impressive speed. However, despite these efforts, the backlog across jurisdictions remains unacceptably high. (Paragraph 181)
47.We recommend that measures to address the backlog be demonstrably effective, well-funded and implemented urgently. Actions taken to reduce the backlog must also be manageable for those working in the justice system, including judges, court staff and legal professionals. (Paragraph 182)
48.We welcome the Lord Chancellor’s commitment to tackling the backlog. However, targeting “normal positions” is vague. We are concerned that HMCTS does not have clear targets or deadlines for the recovery of service in the criminal courts. This means it is not possible to assess whether the funding made available to HMCTS is sufficient to clear the criminal backlog, or whether steps being taken in response to the growing backlog are adequate or effective. (Paragraph 186)
49.We recommend that the Government sets out detailed plans for reducing the backlog of criminal, family and employment cases, including a timeline for implementation. (Paragraph 187)
50.Significant investment has resulted in the opening of several Nightingale courtrooms to increase capacity during the pandemic, which we welcome as a solution to reduce the backlog by scaling up court capacity. However, it is unclear whether this additional courts estate is being used effectively. (Paragraph 191)
51.It is concerning that the Government does not publish data showing the number of cases, sitting hours or sitting days taking place in Nightingale courtrooms. This makes it difficult to assess whether these additional courtrooms are being effectively utilised. Reports from the media suggest that utilisation is well below what might be expected. 60 Nightingale courtrooms are planned by the end of March 2021, yet less than half of these appeared to be open at the beginning of the month. (Paragraph 192)
52.We recommend that the Government be required to explain precisely how they are using the Nightingale courtrooms, how many cases are being heard in each of these new venues, and the factors it takes into account when identifying new venues for additional Nightingale courtrooms. (Paragraph 193)
53.However stringent the measures in courts, physical hearings require court users to travel from homes, offices, and prisons to attend. Keeping the courts operating and maintaining face-to-face hearings will involve a degree of risk of exposure to COVID-19. (Paragraph 198)
54.Given the severity of the backlog in the Crown Court and the urgent need to clear it, we recommend that urgent cases and jury trials continue to be heard in a physical setting where no alternative is feasible. The Government must continue to ensure that courts are as safe as possible during the pandemic. (Paragraph 199)
55.We recommend that the Government takes additional steps to encourage and facilitate remote hearings, especially when the risk of infection is at its highest. The decline in the use of the Cloud Video Platform suggests a missed opportunity to keep court users safe by holding more hearings remotely. (Paragraph 200)
56.The Government must ensure that it is making the maximum use of existing facilities, and that courtrooms are not sitting idle during core business hours. (Paragraph 205)
57.Before extending court operating hours, we recommend that HMCTS ensure that it is making maximum use of normal court hours, existing court estate and Nightingale courtrooms, as well as avoiding any restrictions on judges sitting. (Paragraph 206)
58.Nightingale courtrooms enhance courtroom capacity and will, if used effectively, reduce the backlog. Whilst we welcome the sixty Nightingale courtrooms that will open in response to the pandemic, we draw attention to the fact that the backlog in the criminal courts exceeds half a million. It has been suggested that Crown Court capacity would need to double to return to pre-Covid backlog levels by 2024. In the employment tribunal the backlog exceeds 50,000 and the family courts backlog exceeds 10,000. Sixty additional courtrooms are insufficient to address the urgency and scale of backlogs across the justice system. (Paragraph 208)
59.We recommend that further funding be made available to HMCTS to significantly increase the number of Nightingale courtrooms open by the end of 2021. (Paragraph 209)
60.We recommend that the Government further increases the number of sitting days, particularly in the Crown, magistrates’ and family courts and in employment tribunals. (Paragraph 211)
61.The more judges or tribunal members that are permitted to sit, the greater the opportunity for cases to be heard. In March 2021 the Government said that it planned to legislate to increase the mandatory retirement age for judicial office holders. The planned reforms will enable existing judges to remain in judicial office until they are 75 years of age (rather than 70), and will enable retired judges to sit after retirement until they reach the age of 75. (Paragraph 212)
62.We welcome Government proposals to increase the mandatory retirement age for judicial office holders. This will increase the number of judges who are able to sit and, therefore, the number of cases that can take place. (Paragraph 213)
63.We recommend that the Government takes additional steps to further enhance judicial capacity. Shortages in the number of available judges could be alleviated through greater use of recorders in the Crown Court and further investment in the recruitment and training of new judges. (Paragraph 214)
64.We welcome the Lord Chancellor’s plans to enable greater use of remote technology in jury trials. (Paragraph 219)
65.We recommend that the Government continues to pilot remote jury trials as a further potential solution to the significant criminal trial backlog. (Paragraph 220)
66.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 required for a Crown Court trial, would fundamentally alter a core element of our criminal justice system. Such changes could only be justified as a means of addressing the backlog if there was no other way to return to pre-pandemic levels of outstanding cases in the Crown Court. (Paragraph 232)
67.The jury system should not be altered without full parliamentary debate preceded by evidence on the potential impact of changes on case outcomes, access to justice and public perceptions of the criminal justice system. (Paragraph 233)
68.Greater use of alternative and online dispute resolution could reduce workload in the civil courts and thereby reduce the backlog of civil cases both in present circumstances and in the future. However, we remain concerned about those for whom financial barriers may make alternative dispute resolution an unaffordable solution. (Paragraph 236)
69.We recommend that HMCTS facilitates and encourages greater use of alternative dispute resolution in appropriate civil cases, subject always to the condition that access to justice is secured through its use. (Paragraph 237)
70.It may not be possible for the Government to target a fixed number of outstanding cases across all jurisdictions whilst the pandemic continues. (Paragraph 239)
71.We recommend that the Government sets out clear plans, both short-term and long-term, for addressing the backlog in all jurisdictions, along with timelines and targets for implementation. Clarity is necessary to facilitate scrutiny of the adequacy of the Government’s response and to restore faith in the justice system. (Paragraph 240)
Data in the courts system
72.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. (Paragraph 251)
73.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. (Paragraph 252)
74.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. (Paragraph 253)
75.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. (Paragraph 254)
76.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. (Paragraph 260)
77.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. (Paragraph 261)
78.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. (Paragraph 262)
79.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. (Paragraph 270)
80.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. (Paragraph 271)
81.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. (Paragraph 272)
82.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. (Paragraph 273)
83.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. (Paragraph 274)
84.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. (Paragraph 275)
85.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. (Paragraph 279)
86.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. (Paragraph 280)
87.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. (Paragraph 281)
88.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. (Paragraph 286)
89.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. (Paragraph 287)
Technology and the future of the justice system
90.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. (Paragraph 297)
91.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. (Paragraph 298)
92.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. (Paragraph 299)
93.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. (Paragraph 300)