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May 8, 2018

More in hope than expectation? The government’s digital court reform programme

It is a truth universally acknowledged that the courts need to become more efficient. Saving money is particularly important given huge reductions in the Ministry of Justice budget. So its clear why the digital court reform programme was started. What is less clear is whether the proposals being implemented are the right proposals, whether they will indeed save money, and what the effects on access to justice will be.

Two documents released in the last week throw new light on the ambitious programme. One is a consultation document released to judges, magistrates and selected media but not published. Ironically the very same document dwells on the importance of open justice! This “Judicial Ways of Working” document outlines reform issues on which the judiciary seeks feedback.

The next report is from the National Audit Office on the progress of the programme. This reveals figures that have never been published before about the “business case” for the reform programme, and the NAO seems pretty sceptical that financial benefits will be realised. They are both complex reports so here are a just a few observations:

Even if everything goes to plan, the savings are very small in comparison to the outlay. The whole programme cost £1.2 billion and forecast annual savings starting in 2023/4 are £265 million per year. So if everything goes swimmingly (which the NAO appears to doubt) the investment will not be repaid till 2024/5. The savings in the criminal justice system, according to the judiciary document, are only £14 million, a small sum in government terms.

  1. As often happens with big government projects, the costs have gone up since its inception in 2015 and the prospective savings have been reduced – the 10 year net present value (the gains being made) has gone down from £820 million to £238 million. Though most of the funding for reform has come from the Treasury, a significant chunk has come from the sale of courts, and another £182 million from the Ministry of Justice itself.  That the MoJ has “invested” its own money is slightly surprising given that the department is so cash strapped.
  2. Both reports illustrate the point the NAO makes about transparency – “Engagement is also affected by limited transparency. HMCTS [the courts service] does not yet have effective arrangements to measure and report on progress and communicate this clearly to its stakeholders”;”stakeholders do not fully understand how the reformed services will work in detail”. That the most detailed descriptions of the programme so far come from the NAO and the judiciary – not from HMCTS – illustrates how poor the dissemination of information has been. HMCTS has kept their business case, their plans and their research secret for five years. I discovered that they had spent over £30 million on management consultants only through a chance conversation with management consultants. This contract was published by the government in an obscure document on 23rd December 2016 – designed not to be found.
  3. Both NAO and judiciary documents suggest (rightly) that legislation is a barrier to progress of the programme. Key proposals such as online indications of plea, an online “end to end” criminal court and fully virtual trials (with no one in the court room) cannot go ahead without primary legislation. It seems really odd that so much money has been invested up front in proposals which always needed parliamentary approval. Did everyone just assume that parliamentary approval was a foregone conclusion? How risky.
  4. There is a sinister suggestion in both papers that if a new Courts Bill is not tabled soon, HMCTS should circumvent the process by using secondary legislation – criminal procedure rules drafted by a rules committee appointed by the Lord Chief Justice, approved by him and nodded through by parliament. This would be constitutionally wrong. As it is, the judiciary are being consulted on proposals which have never been subject to public consultation or parliamentary scrutiny. So judges may end up both the sole consultees and the architects of new secondary legislation to facilitate the changes.
  5. The NAO is concerned that the reform programme will result in cost shunting – a saving to HMCTS may become a huge cost for HMPPS (which runs prisons and probation), an organisation which has no cash spare. For instance, if prisoners are no longer transported to court, prison officers will have to become ushers, spending more time ferrying them back and forth from cell to video hearing room.
  6. And there is the effect on justice too: “There is also a risk that the drive for efficiency could be seen to compromise the perception of an independent, fair justice system. Stakeholders have raised concerns about the potential for virtual hearings to affect both how engaged defendants are and consequently how they are perceived by juries and sentencers. There is some limited research from 2010 suggesting that defendants appearing in court on video links were more likely to receive prison sentences than those attending in person” (NAO).
  7. The judges do seem to be concerned about open justice, but five years down the line there are no concrete proposals on how to allow the public to “witness” online or fully virtual justice, or at least none that HMCTS will publish. The judges write “the public should be able to see and hear that which they can currently see and hear in court” but no online, video, or telephone hearing would achieve this. So how will they square the circle?
  8. The NAO seems to have mostly bought the government line that the programme, if implemented, will increase access to justice but evidence for this is very thin (and NAO are not supposed to comment on policy). Access to justice is not the same as convenience. It is about effective participation and fair trial rights. These are threatened by all video/telephone hearings with no one in the court room, and online court processes, particularly if unrepresented defendants end up indicating they are guilty of serious crimes without understanding the implications, for instance of criminal records.
  9. Flexible sitting hours (a proposal that courts should sit before 10am and after 5pm) are still on the agenda though the two documents gives mixed messages. The NAO report implies that court rationalisation, ie closure, a key part of the programme, is reliant on flexible hours (“smaller modern estate will support flexible hearings”) while the judiciary document says “there is no need to rehearse the history…This project is not necessary to the HMCTS Reform business case”.
  10. Carefully worded though both documents are, they each reflect doubts about the wisdom of the programme – the NAO from a financial and the judiciary from an access to justice POV. Judges are calling for “adequate facilities for counsel and solicitors to conduct remote conferences and consultation in private”, and “a commitment to provide sufficient ushers in court”. Magistrates are concerned that online pleas should not “overestimate the engagement of defendants” and in the case of fully video hearings “the risks of unconscious bias and depersonalisation which have been identified in early testing”.

In the end, if reform is done to, rather than done with people, it is likely to unravel. But the digital court reform programme is and always has been an exercise in closed policy-making. Though “ordinary” judges are belatedly being consulted, and HMCTS are doing “roadshow” events for lawyers, no one seems to be consulting witnesses and, crucially, defendants and the many stalwart workers (many voluntary) who support these groups. The “ways of working” document from the judiciary reiterates the important of judicial discretion. But what about complainant, defendant or plaintiff discretion? Surely the view of a victim is just as important as that of a judge in the decision as to whether to sentence on video? But if choice was embedded in the programme, the already illusive savings, would probably disappear in smoke.