Originally published in The Law Society Gazette
Our court system may never be the same again. The Ministry of Justice and senior judiciary recently put forward reform plans, representing a profound change in how justice may be done in England and Wales in the future. Since the spending review commitment of £700m for court technology last year, details of what reform really means – beyond new iPads in court and a war on paper files – have been much anticipated.
But advance warning did nothing to lessen the shock when the paper Transforming Our Justice System hit desks. While its roots clearly lie in the departed world of the Govian revolution, the new vision sees the senior judiciary and newly minted lord chancellor Liz Truss unite to foretell the future of our courts. Despite paying obligatory respect to our ancient courtly rituals, this vision is itself nothing short of a quiet revolution.
There is much to welcome here. It is now both trite and a truism in justice reform that if banking and shopping have been transformed by the online, so must our courts.
And plans to move away from the requirement for physical appearances in court through measures like pre-recorded cross-examination for victims and witnesses are radical, welcome and inevitable. With a heady spirit of ambition and innovation, the plan calls for a system that is ‘straightforward to use for every citizen’, as well as a ‘system that will continue to lead and inspire the world’. In the same spirit, there are five questions that will need answering if the vision set out is to be realised.
1. What is increased online access to justice to mean without representation?
It has already been noticed by lawyers that a 16-page court reform plan does not once mention legal aid. The controversial Grayling reforms to legal aid have had obvious, intended consequences. As a report from Transform Justice earlier this year confirms, there has been ‘a significant increase in the number of people representing themselves who are not choosing to do so’ in our criminal courts. If we have £700m for court reform, there are many who see it as perplexing that we cannot guarantee legal representation. Organisations such as the Bar Council have already raised the alarm that proposals for online courts for all civil money claims by 2020 mean ‘a real risk of entrenching a two-tier justice system’. It goes on to warn that ‘individuals using the proposed, largely “lawyerless”, online court process could easily find themselves in litigation with big organisations which can afford to hire their own legal teams’. Beware the David and Goliath scenario.
2. How do we make the digital justice revolution not only more efficient but also fair?
The paper proposes that there will be a process for defendants in criminal court to enter their plea online for summary non-imprisonable offences – crimes such as rail fare evasion. Indeed, for some offences, the whole case can be resolved through an online automated system. This is good news and gives us a once-in-a-generation opportunity to build fairness into the way services are provided.
In particular, the language used must be easily understandable. Much of the written material that courts use – forms, reminders and other paperwork – is written with the requirements of the legal system in mind, rather than the people receiving them. Designing new systems gives us a chance to change that. This is important for a more understandable, smooth-running system. Research also demonstrates that when people feel fairly treated they trust and respect the justice system. This matters: they are then more likely to obey the law.
Moreover, if we are to direct cases into an online system, it must be done with clear step-by-step explanations of the procedures. Simple guidance about the options facing people at every turn must be given to ensure fairness. Just as importantly, the system must spell out what the potential consequences of a guilty plea are. The ‘collateral consequences’ of a criminal record on future employment and immigration status, for example, need to be as clearly explained online as they would be if a lawyer were present. Fairness safeguards are essential.
3. If a case is settled online, does this signal that the crime is less serious?
As we think about fairness, we must, at the same time, think about proportionality. If we are to move cases online, are we, no matter how subtly, signifying that those offences are less serious? If that is the case, then should we be looking at whether those offences should carry the same weight? At present, receiving a fine from a court case means a criminal record that is spent within a year of the date of the conviction. This is a burden in itself. But it is also clear that when employers ask for an enhanced criminal record check, they can find out both spent and unspent convictions. Should we be re-examining whether these offences – such as TV licence evasion – should carry such weighty implications for individuals later on in life and whether these types of conviction should be disclosable at all?
Moreover, what does moving a case online imply for the criminal offences that are already resolved out of court? Is the line between less serious offences moved online and those already resolved out of court clear? Are we clear why some are resolved in a police station and some settled online? All are grey areas which need thinking through.
4. If we have fewer magistrates’ courts, what does this mean for the future of the magistracy?
We have already been through a raft of court closures, during the coalition government. They have caused the obvious practical difficulty that our lay, volunteer magistrates have to travel further to sit at court. But there is, of course, something deeper about the connection between court closures and the future of the magistracy– it unpicks the thread that has tied magistrates to their communities for so long. It is a direct assault on perhaps the magistracy’s most cogent argument for existence: that magistrates know their patch and know what matters to their communities.
If more cases are heard online, and if more court buildings are shut, are these reforms pulling apart the case for continuing to have a lay magistracy in England and Wales? It is worth observing that many countries that inherited the lay magistracy from us have already largely removed it from a serious role in their courts. Does this plan imply that the same is happening here?
5. What role can problem-solving have in our courts?
The plan outlines the desire to ‘explore the use of innovative “problem-solving” criminal courts, which seek to change offender behaviour by tackling underlying problems, such as drug and alcohol addiction or mental illness’. If courts are, as the paper suggests, to be a place where people understand the options open to them, problem-solving is vital to realising a vision where courts can change people’s behaviour. While many court cases are not complicated in a legal sense, in many instances they involve individuals and families with complex lives. A court case, therefore, ought also to be seen as a window of opportunity to make a difference in someone’s life.
This broader view of the purpose of our courts is at the heart of problem-solving courts. Problem-solving courts put judges at the centre of rehabilitation. Generally operating out of existing courts, problem-solving courts yoke together the authority of the court and the services necessary to reduce reoffending and improve outcomes, especially in cases involving underlying mental health problems, domestic abuse, or drug and alcohol dependence. These specialist courts improve public safety and the legitimacy of the justice system in the eyes of the public. Therefore, it will be increasingly urgent for the government to fill in the detail about how they envisage taking forward piloting of these innovative approaches.
Of course, posing these questions is the easy bit– answering them will take determination, patience and reflection. But if we are to realise the goal of transforming our justice system, leaving no one left behind, we must answer them.