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HMCTS was forewarned about the risk of digital courts

Penelope Gibbs
27 Feb 2023

Sir Ernest Ryder, one of the architects of the digital court reform programme, recently said that the court system in 2015 had been facing bankruptcy. The threat was not real. Government departments, including the Ministry of Justice, are always in the end bailed out by the Treasury. But we are left with the legacy of a panic – a digital court reform programme which was designed to save money, but is every day seeming less likely to do so.

The idea was that the courts service (HMCTS) would be able to cut staff and judges and close courts if court hearings were moved online and on video. The ambition was huge – to move all jurisdictions online in just four years. HMCTS in 2015 had hardly any research, IT or major projects expertise. At that point some in the Ministry of Justice doubted the digital court reform programme was viable and asked the management consultancy BCG to take a view. Its report (which I prised out of HMCTS two years later) was prescient.

BCG said reforms ‘will surpass what might be considered best practice among leading overseas jurisdictions today… the level of ambition is very high, especially for a four-year programme. Operating under the existing governance structures and state of relationships, the programme will not succeed’. Translated from management consultancy speak this meant ‘the government would be crazy to embark on this huge programme. It will almost certainly fail’. The report was produced the same month that the lord chancellor, Michael Gove, announced his support for Brexit and, despite how damning it was, the Ministry of Justice soon gave up challenging the digital court reform programme. More’s the pity. It was left to HMCTS to plan this £1.2 billion programme, with the help of an army of consultants.

Challenge to the digital court reform programme has for the most part been batted off, with detractors being dismissed as Luddites. The National Audit Office and the Public Accounts Committee have been more difficult to rebuff, partly because of their access to financial plans which have never been published. In a series of reports they have criticised the implementation of the programme, which is now three years delayed, over-budget and estimated to save much less than originally forecast. It has also led to the closure of many courts.

The reform programme consists of a series of projects. The one most likely to improve efficiency – a system to record and process the payment of court fines – was abandoned a few years ago. It is now the common platform (a digital case management system) which is expected to deliver a quarter of the programme’s total gross benefits. But the NAO’s most recent report depicts a list of failures in implementation which do not bode well. £22 million was wasted trying to make the system work for the CPS. Now the system is focused on criminal court files and data. In the eight months from August 2021, several major incidents affected the running and stability of the service. In the following eight months there were 231 critical incidents and in September 2022. It was discovered that the common platform had failed to send out 3,011 important notices to partner agencies. Last year the PCS Union, which represents many court staff, called a strike to protest about the system.

I would support the digital court reform programme if it delivered greater court efficiency without harming access to justice and effective participation. But it doesn’t. A new digital case management system was definitely needed for criminal courts. But the designers of the common platform didn’t seem to understand the delicate ecosystem of the court, nor the needs of users. Around a third of defendants appearing in magistrates’ courts are unrepresented. The common platform is designed to exclude them, so they have no digital access to their own case files. Meanwhile the unit cost of processing a magistrates’ court case is currently 22% higher using common platform than old systems. The NAO says ‘achieving the efficiencies of reform relies on the behaviour change of a range of users, many of whom HMCTS has limited influence over, such as judges’. But maybe the reform programme should have started by understanding the behaviour of users and asking them how to make the courts more efficient?

Cassandra the mythological Greek priest uttered true prophecies, generally of impending disaster, which were never believed. Since 2016 Transform Justice has expressed concerns about the digital court reform programme, particularly video hearings. I’ve often felt a bit like Cassandra and wish for the sake of court users that the courts service, the government and the senior judiciary had listened more carefully to those like BCG who challenged their approach.

This blog was originally published in The Law Society Gazette here.