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January 19, 2018

When is a consultation not a consultation? More on digital court reform

I have badgered the Ministry of Justice to do a proper public consultation on their key digital court reform proposals. They consulted on a few in autumn 2016 but never consulted on two key changes – on online pleas (pleading guilty/not guilty to a criminal charge on mobile phone or laptop) and on fully virtual court hearings where no-one will be in the physical court room. They have now issued a consultation which mentions both these things but I’m still concerned because the consultation document is confusing

  1. The title of the consultation “Fit for the future: transforming the Court and Tribunal Estate” implies it is just about court buildings, but it is not. Proposals in it have profound implications for effective participation, for access to justice and for the legal profession (since they will probably lead to fewer people using lawyers).
  2. It is targeted at court users, lawyers and judges but the proposals have implications for all citizens and for open justice.
  3. It says HMCTS will “offer a range of hearing options to all jurisdictions. There will be fully virtual options, where everyone joins by video; better technology to extend the current common practice of having one more parties able to join a physical court hearing by video; and of course many hearings will continue to require everyone to be physically present. In all cases, new systems and technology will increase flexibility for users. Better video and telephony will reduce the need for time-pressed members of the public and professional users to travel back and forth, and to wait around in court and tribunal buildings. It will also reduce the time, risk and discomfort associated with transporting prisoners”.                                                                                              These are radical proposals, but there is no detail in the consultation as to how this will work. And there is no consultation question which specifically refers to online court processes and virtual courtrooms (or flexible operating hours). There is this question “What is your view of the delivery of court or tribunal services away from traditional court and tribunal buildings? Do you have a view on the methods we are intending to adopt and are there other steps we could take to improve the accessibility of our services?”, but this could be interpreted as referring to their proposal for “pop-up courts”. So they risk getting no responses on the digital reform proposals.
  4. The consultation quotes evidence that supports their case for digital reform (the Justice “What is a court?” report) but not the MoJ’s own research report from 2010 which found that virtual courts where defendants appeared from the police station were more expensive, more punitive and led to higher levels of self representation. The MoJ have been running video links from prisons since 1999, and from police stations since 2010 and they have collected no data in that period. They have also done no research on the outcomes of witnesses appearing by video. So they are suggesting that more courts should be closed and justice put online/on video without any research to back it up.  They may say that a fully virtual hearing is different to one where one party appears on video, but surely it would be a good idea to measure the outcomes of video links now, particularly on vulnerable people, before moving to a fully virtual system?
  5. It is impossible to address the equality impact of the proposals since there is no equality impact assessment. The government blows hot and cold on equality issues. The Lammy review has put the spotlight on race in the criminal justice system, and improved the publication of data, but this document has no information on race or any other aspect of equality. It says “at this stage the proposed strategy outlined in this document will have no direct impact on service delivery and as such we are unable to carry out a detailed equalities analysis”.  But could they not model the impact of changes on different groups? There are indications that video links disadvantage those with mental health problems, learning difficulties and with English as a second language (among others). Surely we need proper data and research on this before responding to proposals to close courts and replace them with virtual processes?

There is consultation fatigue in the legal community. They know that most consultation responses are ignored. But I would still urge everyone to respond to this and to include their views on the government’s online and virtual reforms, even if there is no specific question about them. No-one ever knows what happens in invitation only stakeholder events, but at least public consultations are open to all and the results are published.