Her Majesty’s Court Service: trouble ahead for the online criminal court?

Halt ‘the expansion of virtual justice (video and telephone) for defendants until we have more research on its impact,’ says a hard-hitting report from the charity Transform Justice (TJ) published yesterday. The Guardian reported a generic defence from the Ministry of Justice: ‘We are investing more than £1bn to transform and modernise our court system. We know video hearings reduce court time, improve public safety and save money for the taxpayer. Videolink technology is also being used to make the court process easier for thousands of vulnerable victims and witnesses.’ So the official line is that the digitalisation process is expensive (undeniable); increases efficiency (contested by TJ) and improves access (also contested by TJ); no claims about standards or principles. Should the TJ report put us on notice that plans for the online court are in trouble?

The TJ report is susceptible, as is virtually every report by an outside body on government actions, to the criticism that it is based on anecdote and a skewed sample of respondents. However, its criticisms follow very much how the Magistrates Association responded to draft proposals on digitalisation in the draft Prisons and Courts Bill currently delayed first by the election and now by Brexit. It responded to the TJ report by tweeting: ‘We’ve consistently raised concerns about the use of video links – so good to see examples in this report of some of the problems experienced.’ Some of the most damning quotes in the TJ report come from magistrates.

One of the most disturbing stories of current failures of technology comes from yesterday’s  Buzzfeed. Senior reporter Emily Dugan wrote that the court transcript in a Court of Appeal case involving Folarin Oyebola was ‘inaudible 71 times’ at his Court of Appeal hearing. He was presenting his case against a confiscation order from Pentonville Prison. He told Buzzfeed: ‘It was horrible … [the Judge} didn’t understand what I was saying at all. It was like speaking into a hollow chamber. I was shouting and it was echoing back.’ He added. ‘The Court of Appeal is such a big hall. People sitting in the court can hear themselves very well but when you are listening on video there is an echo … In video link there’s that delay which is not live and therefore you don’t want to interrupt the judge. It’s better when you are in court’.

Oyebola’s is just one case but it illustrates the general points in the TJ report remarkably well. TJ have a number of telling quotes that make similar points. A court clerk reported: ‘communicating by video hampers understanding. Delays in the sound cause people to simplify their points of view and misunderstandings can happen easily’. It is the changes in behaviour which are the most dangerous in their implications.

Simplification and inefficiency are not the only problems: there is also alienation. TJ reported a criminal lawyer as saying: ‘I have had communication break down entirely with defendants who become agitated – it a lot easier for them to become frustrated and take out their anger with a ‘face on the scree’ than a human being in the room with them’. A magistrate reported that defendants ‘appear disengaged and remote. They often give a nonchalant/poor account of themselves’. Unsurprisingly, the problems are magnified when there are language, hearing or cognitive barriers to communication. These are not being picked up in advance by police and prison officers.

Back in April, the irreverent science website The Register reported that ‘Hundreds of millions of pounds have been wasted on plans to digitise the criminal justice system due to the mismanagement of a key programme that has so far delivered little value to the taxpayer, according to multiple insiders.’ It referred to the criminal justice Common Platform Programme at its centre as ‘vapourware’. ‘‘’The continued waste on trying to deliver this programme is outrageous,” said one [albeit anonymous] insider, who asked why the programme should be allowed to continue in its current form – or indeed at all.’’

The 2017 report of the Infrastructure and Projects Authority has the HMCTS programme at Amber/Red (‘Successful delivery of the project is in doubt, with major risks or issues apparent in a number of key areas. Urgent action is needed to address these problems and/or assess whether resolution is feasible’) and the CJS Common Platform at Amber (‘Successful delivery appears feasible but significant issues already exist, requiring management attention. These appear resolvable at this stage and, if addressed promptly, should not present a cost/schedule overrun.’).

The main source of official information about the digitalisation programme is an official HMCTS blog written by its chief executive officer, Susan Acland-Hood. An entry last month acknowledged that ‘people do often reflect concerns about whether we will be able to do what we have said we will and whether our reforms will be implemented well, and will work properly. Many point (not unreasonably) to criminal justice or wider Government IT problems of the past to illustrate these worries.’ It would be surprising, however, if her line were not essentially that all is for the best in the best of all possible worlds or, as she puts it, ‘At the start of our reform programme we set ourselves a stretching list of things to have done by September 2017; and we are doing extremely well against that list.’

The TJ report, on the other hand, says that things are so bad that the HMCTS should ‘implement a moratorium on the expansion of virtual justice (video and telephone) for defendants until we have more research on its impact’. It points to the fact that no objective research has been carried out on the criminal digitalisation process since 2010 – the formation of the Coalition Government. More worrying perhaps is the more general point of lack of transparency about objectives, targets and performance. It is not really acceptable that the main source of information on a major government project that involves major the stakeholders should be a blog. There needs to be open discussion and reporting of current thinking on when, where and how video and audio conferencing is acceptable in principle. This should be a public debate, led by Ministers who have been noticeable absent from any recent discussion. It is not suitable for decision by civil servants as a byproduct of implementation decisions.

What is more, the handling of cases like Mr Oyebola is just not acceptable at a technical level. The Ministry must be living on borrowed time in relation to a fair trial challenge. If the equipment is not currently not good enough, it is unacceptable just to bodge a way through  on the basis that only a very determined and well advised defendant will take up a court challenge. And, as TJ says, even when the equipment works, those required to use digital communication must be better screened for suitability. There also needs to be more flexibility and better quality in how lawyers can use the technology to communicate with their clients. Not only are there currently operational problems but also there is often an inflexible timetable which restricts communication to an arbitrary quarter of an hour. These cannot just be written off as implementation glitches. They are fundamental failures of the system both to operate properly and probably to meet the standards of Article 6 of the European Convention on Human Rights.

The temptation for the HMCTS and the Ministry of Justice will be to sweep the TJ report under the carpet and hope the problems go away with improved developments. But, the issue is much the same as in relation to the government’s dash to implement Universal Credit. It faces problems which are both technical and principled. Defendants have a right to a public hearing – under English common law and the European Convention. We need public debate of what that means. We need much more transparency – which leads to public debate – about what is going on. HMCTS wants to emphasise its agile, piece by piece, constantly evolving response. If that means that it is coming up with something that can reasonably be dismissed as ‘vapourware’ then we are all in trouble.

Ministers are paralysed by Brexit. in their absence, a heavy weight falls on the judiciary. It may well be well past time for the senior judiciary to step in; withdraw consent for any further developments before current problems are sorted out; initiate a public debate; and establish some principles. The alternative is that this programme will join the rather too long list of Titanic Government projects that have tended rather too often to sink with significant losses of those aboard. And that, in this case, will largely be defendants and, most likely, those that are most vulnerable.

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