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February 9, 2018

Does the digital court reform programme risk more “enemies of the people” accusations?

This week some twitter wags pointed out that in having huge technical problems with video links (“I am going to go ballistic – and it won’t be pretty”), Lord Justice Leveson was getting a taste of  his own medicine, given he is a champion of their greater use. He would surely respond that he is in favour of video links that work, but one of the inherent problems with video links is that in the eighteen years of their use, the technology has never worked well.

We need to talk about judicial independence, not in relation to Article 50 and other court cases, but in relation to court reform. Its unarguable that judges should be involved in the development of court reform policy – they spend the most time in courts and control the timetabling of court cases (listings). They have always been consulted behind closed doors about court closures and other reforms. They initiate changes in criminal and civil procedure rules.

But more recently judges have not just been consulted on court reform, but have led it. Lord Justice Briggs and Lord Justice Leveson have both been asked (by the executive?) to write reports which have led directly to the digital court reform programme now underway. They are reports which are about policy, not just procedure. Lord Leveson recommended an extension of video hearings, Lord Briggs an online court. These recommendations fed into Transforming our Justice System a joint statement by the Lord Chancellor, the Lord Chief Justice and the Lord President of Tribunals. Prior to the publication of this statement there was no published policy work by the executive on digital court reform. From the outside it looks as if court reform policy was initiated and mainly designed by judges.

An interview published this week with the former Lord Chief Justice revealed that the judiciary championed and pushed for digital court reform with successive Lord Chancellors: “They all went through the process of trying to understand why it was necessary and they all agreed it was…I take this view, that if the judges don’t lead it, it would actually be much worse for the system.” And judges, over the centuries, had led law reform. “If we hadn’t led it and don’t continue to lead it, it will become more an administrator-dominated system than what is a judge-led system”.

Lord Thomas also said recently in relation to key court cases: “judges are being given difficult decisions…decisions which ought to be made by politicians not by judges”.

I am wondering why court reform is different? If judges design and lead policy on court reform, does that not put them in an awkward position constitutionally? If, as has happened with Transforming Rehabilitation (the probation reform programme), digital court reform goes very wrong, will the judiciary be held partially responsible?  In which case, what mechanisms are there to hold them accountable?

Even more messy will be court cases which arise from the digital court reforms. The reforms are not just about arcane court processes. They will effect all users of court services and there are strong indications that they’ll impede access to justice and effective participation (for some users). Already there is evidence that defendants find it far more difficult to communicate with their lawyer and the court if on video. And that this leads to more negative outcomes – more imprisonment and, in the case of immigration bail cases, extended detention. What happens if lawyers launch strategic litigation about digital court processes? Will the senior judges sitting in the Court of Appeal and Supreme Court who have been most involved in the court reforms recuse themselves?

I also have concerns about the extent of judges’ involvement in the court reforms because it lays them open to criticism about the process. The digital court reform programme has no evidence base in academic research. Lord Leveson wrote in his 2015 report on efficiency in criminal proceedings that “there has been no time or little opportunity for evidence gathering” and that “there is no quantitative analysis of the effect of the changes which are proposed. Within the constraints of the Review, it has not been possible to calculate how much will be saved by any participant in the criminal justice system by any single change, or combination of changes, to the way in which criminal cases are conducted”.

At no point since 2010 (when a Ministry of Justice report found that police station to court video hearings were more expensive, resulted in more unrepresented defendants and more punitive outcomes) has any more research been done on video hearings. Yet senior judges are actively backing totally virtual hearings, where no-one will be in the court room. Key elements of digital court reform, such as fully virtual hearings and online pleas, have not been subject to public consultation yet it looks as if legislation will be introduced any day now. Given that judges have championed the reforms, and sit on the board of the courts service (HMCTS), does that also mean judges have endorsed this lack of public consultation, and lack of research? Its unclear and messy.

The potential conflict of interest has already come into play in relation to flexible hours – proposals that criminal court sittings should start earlier and end later. Lawyers have been at loggerheads with the judiciary about this proposal, and complained about both lack of consultation and poor initial evaluation plans. Stakeholder groups should be at loggerheads with the executive, not the judiciary. Andrew Walker, new Chair of the Bar recently echoed my concerns: “does responsibility require accountability and, if so, in what way? If the judiciary is driving the current reforms, then I see dangers ahead”.

I think that perhaps even senior judges are beginning to think they have become too embroiled in policy making and promotion. In a recent speech the President of Tribunals Lord Justice Ryder said:

“Reform based on the views of a single judge or group of judges, based on anecdote or impression, or even on a certain amount of evidence drawn from willing parties can no longer be the way we approach the matter. Judges, while adept at researching the law, are not by and large trained in the skills of empirical, scientific research…They do not necessarily understand or appreciate the connections, or potential connections between the courts, the legal profession, Ombuds schemes and so on. They are not necessarily at home in the digital world, in terms of design and implementation…We cannot lead reform as an exercise in the ad hoc. In order to understand, to design and to test reform we must, it seems to me, engage far more than we have in the past with academia, with management experts, digital experts, with the professions, regulators, Ombuds and wider society”.

I completely agree with this; its just a pity that we are already spending millions of pounds on a digital court reform programme co-designed by judges with profound implications for access to justice, which is not based on robust research. My solution is radical – to dissolve HMCTS as an agency, create a new body to administer courts with no judges on the board, but with an advisory council of judges, with whom to consult on court policy. This new arrangement would protect judges from accusations of breaching their own independence, from getting into fights with the law profession, and from further “enemies of the people” headlines.