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June 23, 2018

#thelawisnotbroken – court users seem happy enough with today’s courts

A rather confounding survey was published by the Courts Service (HMCTS) this week. It said that court users were in the main happy with their court experience. 54% of respondents rated their encounter as ‘very good’ or ‘fairly good’, 60%  felt listened to by the courts system, 63% agreed the information they received was good enough, and 77% were kept well informed about what was happening while they were in court.

This is cheering stuff though contradicts previous research with witnesses in criminal cases and the twitter crowd who regularly complain of crumbling court-rooms and terrible delays (using the hashtag #thelawisbroken). One reason why the courts survey may be at odds with other evidence is that only 1031 users were polled across all jurisdictions – meaning the findings reflect only a small number of any one group, such as witnesses in criminal cases.

One of the most interesting aspects of the survey is that the top priority for users was being “listened to”. This was more important than the outcome of the case they were involved in – a finding which reflects procedural justice theory. “Being listened to has two elements to it. There is the literal interpretation which requires staff to be more responsive more available and more empathetic, and then there is the conceptual interpretation which is about users feeling they have had the opportunity to present the best of themselves and get a fair outcome”. Being listened to is far and away the most important driver of satisfaction with courts, but good information (users wanted information about their case, what to expect in a hearing, and legal advice), openness and accessibility were also important.

Maybe I’m being cynical but releasing this report just after closing a consultation for judges on digital court reform seems an interesting choice of timing. The fieldwork finished in October 2017. The importance of being “listened to” challenges the whole premise of digital court reform. Online processes are convenient, but they don’t facilitate users “being listened to”. Virtual processes also close down communication. The research of Transform Justice and Dr Carolyn McKay suggest that the effective participation of defendants is harmed by video hearings. Defendants on video feel that neither their lawyer nor the judge is listening to them, so they either detach from the process or get frustrated. One of the most chilling anecdotes in our research was of a legal advisor who would press the mute button in the court to “silence” a prisoner who was talking too much from their distant video suite.

Meanwhile the Legal Education Foundation, the charity Justice and the academic Dr Catrina Denvir have all in recent reports challenged the extent to which online courts will listen and respond to those who are are digitally excluded. They are also concerned that we don’t know enough about how people access justice now to understand how putting processes online would affect that access. Catrina is particularly withering about the government’s assumption that users of its online services would benefit from, but don’t need, legal knowledge.

“Possession Claim Online (PCOL) applicants [for those trying to recover rent from a tenant] must provide particulars of the claim, identify the nature of the breach and identify anti-social behaviour where it is alleged. Information provided on the PCOL website encourages users to familiarise themselves with the Civil Procedure Rules Practice Direction prior to submitting a claim. Similar requirements are expected of Money Claim Online (MCOL) users. Those lodging in the Employment Tribunal are required to understand the legal dimensions of unfair dismissal and discrimination. Further, all systems require that Users understand that the provision of false information renders them liable for contempt of court…It has previously been observed that the public exhibit poor knowledge of the law, struggle to conceive of problems as being ‘legal’ in nature, and often fail to distinguish between legal rights, and normative, moral, or ethical standards”.

Meanwhile Susan Acland-Hood, the Chief Executive of the Courts Service responded to my concerns about open justice in the dystopian new world of online courts: “many people who have suffered at the hands of rogue traders do not go to court because they fear complexity and slowness. Our new online service enables people to make claims and resolve them more swiftly out of court…Far from undermining the centuries-old principles of justice, modernisation will help to sustain them by shaping services in our courts and tribunals around the needs of those who use them”. But if the court modernisation programme were being shaped by users, then wouldn’t it ensure court users were “listened to”. I find it hard to believe that a litigant in person tapping away alone at a keyboard to appeal their refusal of benefits will think this is the best way to get “listened to”, but who knows?