Re-casting our justice system to equip it for the present?

Secretary of State for Justice Michael Gove appeared before the Justice Committee on 15 July 2015. One of the three priorities he set out then was “making sure that our courts work in a more effective and efficient way”.

Subject to spending constraints, greater efficiency is likely to include a step-change in the use of technology in courts and in the delivery of justice. Ideas such as the setting up of HM Online Court – as recommended by the Civil Justice Council – should be likely to be near the top of the agenda for change. Further rounds of court closures also look likely. A key determinant of the scope and pace of these sorts of measures will be the spending round secured by the MoJ in negotiations with HM Treasury. That should be clearer following the Chancellor’s Autumn Statement on 25 November.

The day after Mr Gove’s appearance in front of the Committee, MoJ published a consultation paper setting out plans to close 91 courts and tribunals. The consultation ended on 8 October and we await the results, but momentum has been maintained when on 22 October a House of Commons Briefing Paper was issued on Court and Tribunal Closures covering 460 courts and tribunal centres across England and Wales operated by HMCTS at a cost of about £500 million a year.

Successive governments identified the courts and tribunals as a target for efficiency savings and in December 2010, the Government announced that 93 magistrates’ courts and 49 county courts would be closed in England and Wales following consultation on the Court Estate Reform Programme 2010-2014. In February 2015 Lord Faulks reported that savings of about £140 million had been made as a result of the programme.

In bare terms of financial savings achieved – setting access to justice and related issues aside for the time being – the MoJ would have probably regarded this as a good start. It seems that more is to be done. Michael Gove wants to help the judiciary to achieve what had been set out by the Lord Chief Justice and by Sir Brian Leveson by way of a programme of changes that they believe are necessary – including greater use of technology – in order to ensure that the courts work as effectively as possible, in the interests of all citizens.

Records show that the utilisation rate for many courts is low resulting in inefficiency and wasted expenditure. The utilisation rate for around 70 courts is less than 50% and for the bottom 10 courts lower than 20%. The MoJ argues that such courts need to be closed and workloads transferred, but without pushing recipient courts beyond capacity. This should allow a more cohesive and streamlined court system providing greater flexibility through co-location of criminal courts and civil courts with tribunal hearing centres and wherever possible centralise back office functions.

Coupled with court and tribunal closures is the policy aim of reforming access to justice through modernisation, and with a far greater integration of technology in the delivery of justice. As part of this programme, the MoJ proposes increased use of online forms and video links for witnesses, which could help mitigate the impact of the loss court buildings. This will not be easy unless a fresh approach is adopted because it is well publicised that Government-sponsored IT projects have a very poor track record. Mr Gove admitted when appearing before the Justice Committee, perhaps with a degree of understatement, that he had “discovered that the Department’s own IT is hardly gold standard.”

Some will say that we have heard all this before and say progress with judicial IT has been painfully slow. The Woolf Reforms recommended far greater use of IT back in 1999, but visit the RCJ today and you will experience the stark reality of the lack of IT. A visit to the Supreme Court will show some Justices working with IT and others with traditional bundles and counsel constantly referring to different page numbers for hard copy and electronic bundles.

An effective legal system relies upon a network of well-maintained and fit-for-purpose courts. Michael Gove’s priorities, although hindered by budgetary constraints, must be addressed and plans introduced and implemented expeditiously to save money and ensure access to justice for all. From the outside, it appears that a change-manager needs to take charge of the programme with the authority to drive through improvements to ensure that there is no place for under-used buildings or antiquated working practices. Facts such as there were more than 33,000 ineffective [and costly] trials in our criminal courts last year should be consigned to history.

A far more commercial approach is required to ensure any IT to support a move towards digital delivery of court services is fit for purpose and represents value for taxpayer’s money. If the possible benefits from moving court work towards digital and on-line channels are to be realised, the Government and its appointed IT service provider must work shoulder to shoulder taking into account best of breed systems used in other jurisdictions and where possible utilise commercial and flexible off-the-shelf software (modified as necessary) rather than slavishly insisting on bespoke software that is likely to take years to develop, to be hugely costly and eventually fail the fit for purpose test.

The Lord Chief Justice concluded in a speech delivered earlier in the autumn that: “It is therefore necessary to re-cast our justice system to equip it for the present, and to future-proof it so far as possible. Stabilising its financing, making effective use of its buildings, allocating work appropriately, and exploiting the advantages that technology and digitisation can bring are the only way to do this.”

It is probably no accident that he referred to financing which, as ever, will be critical. We should know shortly after November 25 if the MoJ has secured a spending settlement from HM Treasury that enables the much-talked about transition to on-line and digital delivery of court work to move beyond mere speculation towards planned execution.

About the Author

Jef Mitchell is a consultant at BLM and former Chief Claims Officer at the Ministry of Defence where he regularly briefed Ministers on claims issues and risk management. He now helps to lead the firm’s Policy and Government Affairs work with Alistair Kinley preparing submissions and supporting evidence for consultations and reform proposals, in addition to liaising with government departments and regulators on key issues and consultations affecting the firm and its clients. Jef is also an accredited mediator.

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