This is an shortened version of a letter to: Lucy Frazer QC MP, Parliamentary Under-Secretary of State for Justice Ministry of Justice from Bob Neill MP, conservative MP and chair of the House of Commons Justice Committee. It indicates the growing level of concern at the online proposals; the court sales necessary to fund them; and the approach of Her Majesty’s Court Service to implementation. It makes many of the same points as have other critics.
27 February 2017
Ministry of Justice consultation: Fit for the future: transforming the court and tribunal estate
[W]e do not intend to submit a formal response to the consultations [on future strategy], we would nonetheless wish to draw your attention to some of the issues that they raise. These … are underpinned by our overarching concern that the impact of any decisions on access to justice be fully understood before implementation, and that measures be proportionate to the policy objectives in question.
We welcome the Ministry of Justice’s (MoJ’s) decision to establish clear principles to inform the estates reform programme … However, it seems to us that several proposals in the consultation are worthy of further careful attention:
1. Travel time to court:
The current consultation is seeking views on a modified approach to the travel standard used to determine decisions on court and tribunal locations: that nearly all users should be able to attend a hearing on time and return within a day. Our predecessor Committee recommended maintaining the standard that at least 90 per cent of users can reach the nearest magistrates’ court venue by public transport within one hour … No convincing policy justification has been offered for the current proposal, which appears to favour the principle of value for money over the principle of access to justice. We dispute the assertion that any particular time standard would be ‘arbitrary’ and we question the assumption that virtual hearings will, and should, increasingly take the place of physical access to hearing rooms …
The equality analysis that accompanies this consultation paper – in common with the other equality statements in this package of consultations makes no mention of the indirectly discriminatory impact of a six-hour (plus) round trip on elderly people or on women, who are more likely to be caring for pre-school and/or school-aged children; nor does it suggest what reasonable adjustments would be made for people with a mobility impairment, in particular wheelchair users – other than a reference to adjustments in court buildings themselves.
2. Assumptions about the capacity of receiving courts
We question whether, in all cases, the court buildings expected to receive the business of the courts identified for closure would in fact have the capacity to deal with the additional work …
3. Use of alternative court venues
[W]e are concerned about the … evident preference for virtual and online justice over traditional, court-based models in the absence of recent research, or evaluation of pilot projects.
We accept that video hearings may suit some court users – including people with mobility impairments who may find it difficult to travel to court. However, we consider it likely that virtual courts will disadvantage some individuals. Focus group and survey evidence … suggests that unrepresented defendants, defendants who do not speak English well, and older and younger court users are likely to be particularly disadvantaged by video hearings; there was also evidence of video equipment failures, poor sound quality and mismatches of sound and image. The MoJ appears to have undertaken no evaluation of virtual hearings since its pilot programme in Kent and London, which was evaluated in a report published in 2010. This found that virtual courts were expensive to set up and to run, that defendants appeared less engaged in the process and that the rate of guilty pleas and custodial sentences was higher than in traditional courts for reasons that were unclear. This discrepancy indicates that further evaluation is needed before moving towards routine use of virtual hearings.
We accept that some types of case lend themselves to online processes and we do not doubt the success of certain initiatives such as the online service for straightforward divorce, or the Common Platform programme that supports case management in the Crown Court. However, were digital justice to become the norm, we believe that substantial barriers would be faced by non-users of the internet, estimated as 18 per cent of 55-64 year aids, 35 per cent of 65-74 year olds and 56 per cent of 75+ year olds. In relation to socio-economic groups, 16 per cent of C2s and 27 per cent of DEs are non-users of the internet (Ofcom …).
We do not consider that the MoJ/HMCTS proposals for providing face to face assisted digital support have been adequately developed, evaluated or costed. If digital justice is implemented more widely without adequate mitigation for those without access to, or familiarity with, the internet, then this would raise a serious issue of discrimination and fairness – particularly for those in older age groups and those who are less well off. The adverse impact may be greater because of the widespread cuts to local libraries which have previously facilitated internet access for these groups.
In relation to criminal cases, we are not aware of any consultation or piloting of the proposals to introduce online pleas, or the proposals designed to allow defendants charged with certain minor offences to plead guilty using an entirely automated system that would issue an online conviction and penalty; in response to the latter, our predecessor Committee observed (in the magistracy report) that excluding judicial office holders from involvement in disposing of certain criminal case at first sight ‘does appear to raise some issues of concern’. We believe there are particular fears about the implications of departing from the long established principle of open justice – a principle accepted by the Senior Presiding Judge in oral evidence to the magistracy inquiry. In addition, there may be concerns about the fairness of defendants making decisions about plea without the benefit of legal advice.
I look forward to receiving your thoughts on these points.