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May 18, 2019

Court reform – how fit for the future?

Normal government convention seems to have gone out of the window. In the old days significant government announcements were never made in the run up to a national election. We have elections for MEPs in a few days, but MoJ has just announced that it will take probation back into public control and the week before they slipped out their response to the consultation on “Fit for the future: transforming the court and tribunal estate”.

The consultation closed over a year ago. It was an odd one since it asked for views on the strategy for closing courts but not on the major reason for their closure – the digital court reform programme.

The government response is a very long and pretty dense document so I’ll just give some observations

  1. It still seems clear that the government will close hundreds more courts and tribunals (the NAO said there would be 2.4 million fewer cases held in physical courtrooms every year), but says access to justice will not be compromised because people will be able to do justice by video or online instead. It is slightly disingenuous for the Lord Chancellor to assert: “As we pursue and implement more opportunities to settle disputes in a way which progresses cases away from our court estate – be it online or using remote links and technologies – we expect the demand for access to a physical court or tribunal hearing room to decrease”. Demand for courts will decrease because the government will force/strongly incentivise court users to do justice online/on video – so the demand will be managed down.
  2. HMCTS (the courts service) has clarified what they deem to be a reasonable length of journey to and from court. In the original consultation they suggested users should be able to get to and from court in the day, but didn’t define what that meant. Now they say a reasonable journey involves someone leaving home no earlier than 7.30am and returning home by 7.30pm. So they think a public transport journey of two hours each way is reasonable. But they say nothing about how someone looking after children/using daycare would be able to manage this, nor how defendants and defence witnesses would be able to afford the fares. They also admit that at least 5% of the population will not be able to get to court on time (9.30am) even if they do leave at 7.30am.
  3. They say that those who have particular difficulty getting to court should be able to have a later hearing or to access their hearing another way – by video or online. I look forward to all defendants and witnesses receiving clear advice that they can request a hearing which suits their travel needs! And the video/online alternative is fine if such channels provide equal access to justice. But if people who use online/video courts get a a more negative outcome compared to those who use physical courts then disabled people who are encouraged to use online/video justice may get a second class service.
  4. There is anecdotal evidence that court closures so far have led to an increase in defendants and witnesses not turning up for their hearing. When defendants “fail to appear”, a warrant is issued for their arrest and, when caught, they are usually detained by the police and taken to court. HMCTS say: “there was not a significant increase in failure to attend warrants (including breach warrants) being issued as a proportion of hearings following the large closure programme of 2011/12”. But between 2017 and 2016 there was a 5% increase in FTA warrants despite a 4% drop in prosecutions.  And I’ve heard that since 2017 the number of defendants not turning up to court has risen still further.
  5. Unfortunately we still have no good data on who court users are and thus who might be affected by court closures. HMCTS have resorted to proxy indicators in their response (having been challenged by the EHRC to improve their equality impact assessments) but I’m not sure these proxys are the best ones and they are no substitute for some proper field research in courts. I’m also not clear why best academic research has not been used to indicate the proportion of defendants likely to have mental disorders including intellectual disability (MacKinnon and Grubin 2013 estimate 38.7% of adults in police custody have such a mental disorder). Surely anyone with a mental disorder is going to be disproportionately affected if their local court is closed?
  6. Perhaps the most startling bit of this document is in the appendix. Annex C is an independent review by Professor Martin Chalkley of the University of York on how HMCTS should calculate whether to close a court on efficiency grounds. This seems to blow out of the water one of the key assumptions underpinning previous proposals to close courts – that all courts should ideally be working at full capacity. Professor Chalkley says that it can more efficient for buildings to run with some spare capacity: “we know from studies of hospitals that high bed occupancy can result in increased infections, poorer quality of treatment and ultimately lower activity. This last feature of high capacity utilisation is pernicious. A system being run “hot” may actually become less capable of delivering and in a context where the workload continues to accumulate there is a real risk of breakdown; excessive workload leads to over-utilisation which reduces throughput which leads to even greater utilisation and so on”. This makes sense and suggests that HMCTS may need to go back to the drawing board in working out whether under utilisation is really inefficient. I am a bit mystified why Professor Chalkley did this review pro bono (p43) given that PWC consultants are being paid £30 million by HMCTS. Surely he should be properly paid to do further research into how courts can be most efficiently used?

I really hope that HMCTS does this research (which may show that all courts should have significant spare capacity) and works out what impact the court reform programme is likely to have on justice outcomes. But this may be a vain hope – the digital court reform has tight timelines and the budget relies on courts closing.