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September 8, 2018

Digital court reform – dissent in the ranks?

Up until recently, judges’ views of the digital court reform programme have been little known bar a negative hint or two on twitter and the speeches of the senior judiciary, who have all sung its praises. Judges work with existing video links and digital programmes so its slightly surprising that rank and file judges were not consulted about the digital court reform programme a long time ago. But the judiciary is a very hierarchical institution (so doesn’t often consult) and were in a hurry to get legislation signed, sealed and delivered.

We have a new Lord Chief Justice who I think has felt rumblings of disquiet in the ranks about the reform programme. To his credit, he and colleagues decided earlier this year to consult all judges for their views on the programme. Its too late to change the principles, but judges have answered survey questions on its implementation. The consultation documents were (oddly) given to journalists but not published. Inevitably they leaked as, recently, has one of the responses. Magistrates and judges were allowed to respond individually and/or collectively, and the response I’ve seen is from a bench of magistrates. It is a fascinating insight into how “ordinary” magistrates feel about the changes foisted on them – they are not content.

  1. They feel the consultation may be a tick box exercise and think magistrates (and others) have insufficient influence in the design process: “changes are already being unilaterally made without consultation….little or no feedback is being given on submissions resulting in reluctance by many magistrates to engage with the reform process…The decision-making process is opaque…In our view, little is being done to interact directly with other categories of court users and relevant agencies”.
  2. They are adamant that contested hearings including trials should never be wholly virtual ie with no one in the physical court-room and all parties on separate video screens or ipads. But current policy says that in future remand hearings (which are often contested) and trials for low level offences could be fully virtual. Such low level offences are currently dealt with via the single justice procedure (SJP) if the defendant pleads guilty. I’m absolutely with the magistrates here. SJP offences such as non payment of TV licence may seem unimportant, but conviction brings a sanction and a criminal record. And remand involves deprivation of liberty. With low level offences, the implication is that the defendant will be able to take part in their trial on an ipad or mobile phone in their living room. It may be convenient but will it deliver justice? Magistrates are worried that a vulnerable defendant could be coached by someone off camera.
  3. Magistrates are clearly unhappy about aspects of current video hearings: “Video hearings cannot replicate the holistic effect of a courtroom with everyone present…There must be means whereby the defendant and their legal representative can consult in private…Video hearings in prison should be in a private room not on in a booth”.
  4. They are concerned that online pleas (even if actioned by a lawyer) may lead to less, rather than more, efficiency. In response to the consultation question “What are the issues to be considered regarding the proposals that someone may not come to court until their trial (if they indicate a not guilty plea online and any hearings are fully video)?” they responded: “the issues for the trial may not be correctly pinned down, leading to poor trial preparation, failure to disclose relevant information or make further enquiries, and an inaccurate estimate of duration of the trial leading to an inefficient use of court time…It may not be apparent the defendant has disabilities or is vulnerable until they come to court…No discussion on special measures”.
  5. They see a threat to local justice in draft proposals to allocate single justice procedure cases from a “national stack”. Currently the single justice procedure involves a magistrate and a legal adviser working with “low level” local cases in a closed court. Magistrates don’t like the idea of presiding over such cases from anywhere in the country. “This will destroy local justice”.

If this submission is in any way typical of others, the digital court reform programme is facing some significant challenges from rank and file judges. In fact the senior judiciary have already given a top line on judges’ feedback: “there is…some concern about the intent of the Reform Programme and the ability for HMCTS to deliver necessary and desirable changes. Some expressed the view that Reform seemed to be driven by austerity and the need to achieve savings, rather than by providing an improved service for the public, the judiciary or staff. Some also expressed concern about how transformation could be delivered without causing disruption to courts, the judiciary, and court users”. The Senior Judiciary say they are going to process the responses to the consultation, but its not clear whether a summary will be published. Nor whether they can square the circle of keeping to the digital court reform’s tight timetable and respecting the views of “ordinary” judges and magistrates.