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The demise of local justice?

Penelope Gibbs
13 Sep 2019

What price local justice? Unfortunately no one has been able to identify and quantify the value of local justice. Malcolm Cowburn recently sent me his article on the memories of retired magistrates in North Devon. There, all the local courts have been closed apart from Barnstaple. Historic courthouses like Bideford and South Molton were probably difficult to use, but they were beautiful local symbols of justice in action.

The magistrates all bemoaned the closure of the courts and felt that local knowledge was essential. Retired magistrate Gillian Haynes told a story about one of her colleagues

“He was of the old school. He was quite fun. Three of us were there and he was chairing and there’d been some kind of fight, he came from Holsworthy, in a pub in Holsworthy and they were all explaining this fight and it was all quite confusing and he got a pencil and he drew a plan of this pub and he just passed it along. Then you knew what was going on, it clarified things and that’s local knowledge. […] Local justice needs local knowledge”.

There is very little academic research on the impact of court closures. And the best piece – on the impact of closing all magistrates’ courts in Suffolk except Ipswich – was completed after Lowestoft and Bury St Edmunds courts had been disposed of.

The lack of good research on court closures has facilitated the government’s massive closure plan, as has our democratic system. Half the magistrates’ courts have closed since 2010. The public has been consulted on the closure of every one and has vehemently disagreed. But the executive can just ignore such responses and close the court concerned. Only a handful of courts marked for closure have been saved.

The National Audit Office has done a sterling job in scrutinising the government’s “court reform” programme, which is now the justification for court closures. The courts service wants to “invest to save” through creating the means to move court hearings out of physical courtrooms onto skype or online.

The latest assessment by the NAO of the programme makes sobering reading. The programme is running late on a number of fronts, is now predicted to save much less money than initially envisaged, and will involve the closure of c 80 more courts. The NAO should not be the first to reveal this information, but this figure of 80 more courts to close has not been published anywhere by HMCTS. The report focuses on court closures and critiques the rationale and implementation. A few reflections here

  • selling courts has generated £258 million but cost £223 million. So we are literally selling the family silver to provide income to run existing courts. Highly recommend this article by retired judge Nic Madge on whether they are even selling the silver at the best price.
  • There is so far no evidence that physical hearings have reduced “as the projects to support online resolution, video hearings and digital case management are late”. This is across the jurisdictions – the number of hearings in crime have reduced because fewer people are being prosecuted. I am still sceptical of HMCTS’ long term prediction that physical hearings will be radically reduced eg I can’t see all video remand hearings getting off the ground, mainly because of police resistance.
  • NAO suggests HMCTS’ assessment of the impact of court closure on access to justice has been, and is, too narrowly based on travel time. “HMCTS’s new approach to estimating the impact of closures on access to justice does not address wider concerns raised by stakeholders. These include the cost of longer journeys, the practicality of travelling by public transport rather than by car and the disproportionate impact that closures may have on more vulnerable groups. HMCTS’s response to its Fit for the Future consultation indicates that it will consider these concerns on a site-by-site basis when determining whether a journey is reasonable; however, it is currently not clear how it plans to do this”.
  • The great news from this NAO report (again not clear why HMCTS has not published this) is that the court service have “moved away from relying on the level of use of a site in assessing whether a court should be closed. When HMCTS has considered closures previously, the level of use has been a significant factor. HMCTS now recognises that there may be reasons why low use is acceptable, such as a site being situated in a rural area with few alternative options. HMCTS has said that it will continue to consider use at later stages of its evaluation. It told us it is also looking into other possible measures of efficiency and is attempting to find a way to account for demand”. This means that a court may not be closed just because it is not filling every hour with hearings. I credit Professor Martin Chalkley for pointing out that running a site at full capacity may be inefficient – since there is then no flexibility if demand increases.
  • It is not the NAO’s key concern (which is value for money for citizens) but the missing link in this assessment is the effect of reform on justice outcomes and on confidence in the justice system. If the reforms lead to more people disengaging from the system (as they appear to have done in the case of the single justice procedure) it is difficult to identify a financial cost, but there is definitely a short and long term cost to justice.
  • The success of the court reform programme cannot be measured by “customer satisfaction rates”, because justice is far more complicated. The ease of accessing and taking part in a court hearing is important. But real success is in achieving just outcomes, which are not being monitored or assessed.

The NAO has played a crucial role in subjecting this programme to scrutiny. But we need more questions asked and answered about what it is doing to the values of justice itself.