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February 17, 2017

Unintended but costly consequences

I wrote last week that the government were moving hell for leather to implement online justice, and of some concerns. This week I learnt that they are definitely planning to publish all online convictions online – an unprecedented and potentially harmful move.

I am sympathetic to the need for the Ministry of Justice to save money but afraid that, in their keenness to do so, they are implementing changes which will end up costing them more, or which are cost neutral but compromise justice. The following ring alarm bells for me

1) Virtual remand hearings. This week a senior policeman told me that in his area nearly all remand hearings were going to be virtual.  This means that the defendant (presumed innocent), will be either in the prison or police station, and appear on screen in the courtroom.  I visited a magistrates’ court the other day and was dismayed by the inferior quality of virtual hearings, particularly the barriers it set up between the lawyer (who may never have met the client) and the defendant.  But all psychological learning would also indicate a bigger problem – that if you place someone in a custodial or prison setting, all those involved are going to be influenced by that setting.  Judges will dispute that this would affect their decision, but unconscious bias and environmental cues are strong.

So I fear that virtual hearings will result in more people remanded in prison, for longer, thus costing the state more. I have no hard evidence and I would urge the MoJ to collect some. But one of their own studies (which seems to have been “buried”) suggests I might be right.  This evaluation of virtual hearings indicated that those who appeared virtually were more likely to plead guilty, less likely to be legally represented and likely to get a more punitive sentence. Increased sentences cost more.  Even excluding sentencing costs, virtual hearings were more expensive than ordinary court hearings.  And they were seen in many ways as less just: “where a solicitor represented from the courtroom, his/her physical separation from their client could hamper confidential communication and the provision of legal advice during the hearing”. If virtual hearings are more expensive and offer poorer quality justice, it is not clear why HMCTS are pushing ahead with them. (If they are now saying virtual hearings are not more expensive it would be great to see the costings).

2) Drastically lowering the fees of lawyers brought in to help cross examine in domestic violence cases. When a defendant is unrepresented (often because they are not eligible for legal aid) and pleads not guilty to domestic violence, the judge will often ask an advocate to step in just to do the cross examination of the alleged victim.  The arrangement avoids the potential harm of the alleged abuser bullying and intimidating their alleged victim, but is financially absurd.  The advocate often gets paid as much for the cross examination, as they would do to defend the accused throughout the case.  In my report on unrepresented defendants I suggested that it would make more sense for the defendant in these cases to be awarded legal aid.  Instead the government have proposed slashing the avocate’s cross examination fees to £50-60 per hour.  I know the government are cash-strapped, but I predict this will backfire.  At the moment advocates are happy to do this work for an hour or two.  But if they are going to get less than £100 for getting to and from court, preparing for and doing the cross examination, they will turn down the work and fragile domestic violence cases will be delayed while staff ring round trying to find a willing advocate.

3) Measures to incentivise guilty pleas.  The performance of both the CPS and the police is measured according to how many guilty pleas they can elicit, how early in the process. Significant discounts are given on sentences for early guilty pleas. The new online court for minor offences will make it much easier to plead guilty than not guilty.  The whole online court process, including plea and conviction, will be completed in a few minutes on a laptop or mobile phone. It will be much less convenient, and potentially more expensive, to go to court to persuade the bench you are innocent.  We all want a system where the genuinely guilty admit it at the earliest opportunity, but any system which strongly incentivises guilty pleas will lead to miscarriages of justice and extra costs.  For every person who pleads guilty just for convenience, the state has to deal administratively with their conviction, pay for their sanction (in the case of prison and community sentences) and for an increased number of appeals from people who sleepwalked through the process.

Are we robbing Peter to pay Paul – bringing in court reform which will result in increased prison numbers and costs? Without good research (like the excellent but seemingly ignored evaluation of virtual courts), massive changes will be implemented, and we will only understand the collateral damage they may cause when its too late.