The digital court reform programme was trundling along relatively slowly before the pandemic. Discrete jurisdictions and areas were “guinea-pigs” to check if new digital processes worked. One was Kent for criminal “overnight” first appearances (with all defendants on video from the police station), another was online immigration appeals. These were piloted pre-pandemic and then implemented countrywide during the pandemic – with no prior consultation.

At least the Public Law Project was around to appraise both the pilot and the pandemic response. It is a woeful situation whereby all proper research on court proceedings in the pandemic has been done by voluntary organisations – PLP in this case, the Legal Education Foundation on Civil Justice (for the Civil Justice Council) and Nuffield’s Family Justice Observatory on family justice. To our knowledge the government hasn’t commissioned any, which means criminal justice has been neglected.

HMCTS had piloted the online immigration appeals, but hadn’t actually published anything on it. So when the pandemic started, there was no road-map as to what the issues and problems were, and how to avoid them. Criminal justice is similar. There has been a revolution in the use of remote justice, without any attempt to evaluate its effects either before or during the pandemic. User researchers have tested new ways of doing things, but none of their findings are in the public domain.

The PLP report on immigration appeals is excellent and I recommend reading the whole of it. I noted a few points which are relevant to the whole digital court reform programme

1. No-one has worked out how and if digital justice should be imposed on unrepresented litigants/defendants. Those (lawyers, court staff, magistrates) surveyed by Transform Justice in 2017 felt that unrepresented defendants were considerably disadvantaged by being forced to appear on video. This study reflects similar concern; ‘It’s [the online process] relatively straight forward for a lawyer to use, for someone who’s used to working on a computer… but there are plenty of people for whom it would be completely baffling and then they would resort … to asking friends, disclosing things to people that they wouldn’t otherwise want to disclose things to, or they just won’t be able to use it at all. [I]f you’re not computer literate and you can’t read English, there’s just no way you’d be able to do it.’ [Interview #6].
2. A responsive, skilled human is essential to make online processes work, even when lawyers are involved. Tribunal Case Workers (TCWs) were essential to the success of the pilot. Their official role was to ‘proactively manage cases through [the online procedure] process, narrowing issues and deciding when it is ready for listing”. Unofficially they smoothed over a lot of the technical problems and acted as facilitators. In all the evaluations of online court processes, a human interface has made the difference. The pilot video tax tribunal only worked because there were numerous extra people employed to oil the digital wheels. The listing of criminal cases has been subject to a volte-face recently – from CVP hearings to physical – because (we think) court staff were over-whelmed by the administration involved and said they could not deal with the backlog unless most remote proceedings reverted to the physical courts.
3. Don’t design an online process without first working out how it affects legal aid lawyers’ ability to make ends meet. Legal aid lawyers work on tiny margins. An hour’s extra work can make the difference between a case being worth doing or not. These online appeals were taking lawyers many hours more than a traditional appeal. So they were not financially worth doing properly: ‘[It] incentivises bad representation because it makes it profitable to do as least work as possible. I think in the long run, obviously the impact on the client is massive, but it also means that appeals aren’t getting finished because cases that should have won that weren’t properly represented and can be won. And we see a lot of them.’ [Interview #22]. The government has issued a consultation on changing these legal aid fees so lawyers are paid an hourly rate rather than a fixed fee. This is in direct contrast to crime, where the fixed fee for digital work is beneficial – lawyers save time and money by appearing remotely (though this may be to the detriment of their ability to communicate with their client).
4. Online processes are not necessarily quicker or cheaper for HMCTS (though they may be superior in other ways eg more flexible). Lawyers felt the online appeal system was slower than the paper system: ‘I think if you wanted an appeal to take place in 4 weeks’ time then you wouldn’t choose to use the pilot system, you would just choose the paper system to get your hearing sooner’ [Interview #6]. And the staff resources required were immense: “It’s much more labour intensive, not for us, but both for the Tribunal and for the Home Office. For the Home Office essentially you now have to duplicate the number of caseworkers because it’s OK if you’re doing a pilot and there’s only, say, two appeals a week going in, if you’ve got one case worker … with responsibility for the reviews. But if you transfer the entire system into this, you’re going to have to build a whole new department. Otherwise it’s not going to respond within two weeks. It’s going to slow down.’ [Interview #32].
5. We need proper evaluations of all new digital processes. This Public Law Project report is great, but the team didn’t have the necessary access to do a full process or impact evaluation. HMCTS says they are evaluating the new appeals process but their description doesn’t sound anything like a proper evaluation: “user feedback is captured through a range of activities and attendance at events and meetings. From these sources, the project team capture thematic findings on user experience in a digital platform, which is not in a format that it is possible to share, but demonstrates ‘anecdotally’ that ‘users report the process is improved and the technology easy to use”. And none of this user feedback has been published. So it’s of no use to man or beast. The whole digital court reform programme is under researched – user research is not enough.

I think HMCTS (and Briggs, Leveson, Susskind and the other champions) thought online/digital justice would be quicker, cheaper and require fewer staff resources. In a very few cases (the single justice procedure) this is the case, but this process has woefully low levels of defendant participation. Where lawyers and defendants are involved fully, they need a lot of help from humans to manage the digital process – this has been the case in all the research I’ve seen including the process evaluation of the remote tax tribunal. This was “successful” in the small number of cases reviewed, but at the cost of employing many court staff on each case.

It has to be said that many participants are positive about the new immigration appeals process: “the online procedure offers significant benefits in principle. Interviewees saw the shift away from paper working and towards a digital system that facilitates earlier engagement of parties to be beneficial”. But we still need to iron out its flaws and make it financially viable for lawyers to use it.