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The new prisons and courts bill – a Pandora’s Box?

Penelope Gibbs
24 Feb 2017

The criminal courts charge was a policy fiasco – a charge to be applied to all those convicted in court, regardless of their means.  The charge was never subject to public consultation, and went through parliament like a knife through butter with hardly a murmur from campaigners.  It was a disaster from day one and was abandoned within months.  I think the lack of public or even informal consultation was key – if the government had consulted, I very much doubt they would have implemented the policy.

I hope the measures in the new prisons and courts bill do not meet the same fate – I estimate that two-thirds have not been subject to public consultation (the Justice Committee inquiry on prisons, however laudable, doesn’t count since it has a different remit and is not led by the government).  The government hasn’t even discussed some of the proposals informally with people in the outside world.  This is not a great starting point. Consultation is not just a shibboleth – open policy making makes for better policy.

Though it is branded as delivering more just, proportionate and accessible justice, the over-riding motivation for much of the court reform seems to be cost-reduction.  But the costings in the impact assessment don’t in some cases seem to have been fully worked through (non monetised seems to refer to costs which have not been worked out yet).

The bill is huge, but I’ll focus on a few aspects of the court reform proposals

1) Virtual hearings.

The bill provides for an expansion in virtual hearings – hearings where either the defendant or witness is not in court and is connected to the court by video link.  The justification given by the government for extending these is that they are more convenient, and less stressful for witnesses. I accept that giving evidence from a van outside your house instead of going to court is more convenient. But is the increase in convenience worth the compromise to justice?  In the case of defendants, the government’s own (buried) research suggests virtual hearings are more expensive both in the process and the outcome – they resulted in defendants getting longer sentences and more representing themselves (which may be related).

There is no research on the impact of virtual hearings on remand decisions, but it seems likely the effect would be similar ie more people on remand, for longer.  But the government goes further – it suggests remand hearings (a decision as to whether to imprison someone who is presumed innocent) should be at some point taken out of the courtroom altogether, with the parties all either on screens or phones (para 32). According to the impact assessment the MoJ would save £4.6M in prisoner transport costs but many other costs like “additional costs to the LAA from providing Duty Solicitors at police stations” have not been costed. And costs of minimum £2.6M seem to have been landed on the police (to equip and man their video rooms)!

Having thought up the whizzy idea of eliminating the court bit of a remand hearing, the policy makers have wrestled with the problem that criminal court hearings should usually be open, so they are proposing creating viewing booths in courts so the public can watch remand (and other) hearings live streamed (schedule 6). I can’t find costings for these booths nor a justification anywhere as to why the public should have to sit in a booth, rather than go into a court room and watch the proceedings there.  I can’t even see there would be a saving in court staff, since someone would still need to set up the live streamed closed “virtual hearing”, to help the public use the viewing booth, and supervise them to ensure they do not film the hearing – in fact the new process may need more manpower rather than less.

The bill also promotes more virtual hearings for witnesses but it seems rash to expand these unless we understand the impact on justice. We have no research on the impact on judges and juries of hearing from a witness who is not in the courtroom, either live or pre-recorded.  The process evaluation done by MoJ on pre-trial cross examination of vulnerable witnesses was just that – a process evaluation. Nothing can be read into it about outcomes.  The MoJ claim using virtual hearings for witnesses will save £550k on ushers but, if the court case is still going on, and the public and other parties still need to be looked after, I can’t understand how they could manage with fewer ushers.

2) Online criminal court

This online court (dealing with guilty plea, conviction and sanction) is going ahead but the range of offences which will be dealt with is restricted to fishing without a licence and failure to produce a ticket when travelling on the train or tram.  The latter offence intrigues me – surely most people who don’t have a ticket are given an on the spot fine?  If the defendant is not actually being accused of fare evasion, surely it would be unjust to make them use an online system and get a criminal conviction if they were willing to pay an on the spot fine?

I have many concerns about the online system, including whether it will (or can) make the full implications of pleading guilty clear.  But what intrigued me about the proposal is that the government estimates that they will spend £1 million in implementing this.  When the whole system is cash-strapped, I wonder they want to spend this sum on a tiny number of people.

3) Online guilty pleas.

This is a hugely controversial proposal – the government would like to take the all plea hearings (when people plead guilty or innocent) out of the courtroom.  They are not forcing anyone to go online: “We will enable defendants to indicate a plea online and enable allocation in all triable either-way cases to be dealt with in writing (preferably online), allowing for early triage of cases through the system without the need for unnecessary in-court hearings” (para 41).  But they will definitely be encouraging defendants to do so (the word lawyer is not mentioned).  They say even police officers (and their civilian staff) will be able to instruct defendants how they can plead online.

This is a very risky proposal, totally unresearched.  My feeling is that it is a recipe for a huge increase in unrepresented defendants, and for people making the wrong plea. Our research on unrepresented defendants suggested that they sometimes plead guilty when they in fact have a viable defence, and not guilty “because people don’t understand the difference between a defence and mitigation. They might accept the conduct… but plead not guilty because they had a good reason to do it. But this is not a reason to plead not guilty”.  

My nightmare scenario is of a defendant at the police station who has no lawyer and is being charged. He just wants to get out of the station, but the police officer starts explaining the online plea system – how, if charged, it will save the defendant going to court at least once. A few days later, the unrepresented defendant receives the charge (maybe by email) and uses his phone to plead guilty, without having much idea what it involves, and with no legal advice.

There is much in the bill on prisons which is good, but much to be concerned about on courts. If you think I’m wrong, or if I have interpreted the bill wrong, do let me know.