Pre-Covid 19 court reform and remote technology developments
Judiciary published findings of Lord Justice Briggs looking at the structure of the civil courts which examined in detail the case for an Online Court. It states that open justice and transparency need to be kept under “constant review as a priority.”
Government and judiciary announced a massive £700 million modernisation plan for the UK courts to create “tomorrow’s justice system” based on a technology revolution that would see far more cases started and finished online.
National Audit Office reviews HMCTS reform program, which aimed to employ 5000 fewer court staff, reduce annual spending on the courts by £265 million per year, and have 2.4 million fewer cases heard in physical court rooms by 2023. It found that delivering the reforms would be “extremely challenging,” that HMCTS risked making decisions before understanding system-wide consequences, and that unintended consequences could undermine confidence in the justice system.
First evaluation of video technology in First Tier Tribunal (Tax Chamber) commissioned by MOJ published finds high levels of user satisfaction but many technology blips.
Court of Appeal (Civil Division) starts live-streaming select hearings.
National Audit Office published progress review of HMCTS reform program, finding that not as much progress as needed had happened; that 42% of stakeholders felt that HMCTS were not being open and transparent enough; and that expected savings not as great as expected. NAO recommended that HMCTS should better understand impact of reforms on users of the justice system and should scale up implementation.
Justice Select Committee released a report on Court and Tribunal Reforms on its inquiry which “received powerful evidence of a court system in administrative chaos.” It found that half of Magistrates Courts and a third of County courts had closed since 2010. It recommended that: HMCTS expedite investment in video and Wifi; that MOJ commission more research on the impact on justice outcomes of video hearings; and that HMCTS and the judiciary should develop “technological solutions to support open justice.”
Government provides its response to the Justice Committee on Court and Tribunal Reform rejecting its recommendation to undertake independent research on video hearings before making more widespread use of them, but committing to do more to evaluate the use of video technology by capturing clearer and more comparable data from these hearings. It committed to ensuring reformed courts are “at least as open as they are now.”
Post-Covid 19 measures and developments – Spring 2020
Lord Chief Justice made two announcements. The first stated that it is “of vital importance that the administration of justice does not grind to a halt” and that there is an urgent need to increase the use of telephone and video technology. The second announcement states that no new trial over three days should commence and all cases lasting longer than 3 days listed to start before end April 2020 should be adjourned.
Lord Chief Justice issued a statement to Family and Civil courts pointing out that the courts are a “vital public service” that must be maintained during the outbreak to ensure that access to justice does not become a “mirage,” and stating that the default position in all jurisdictions is for hearings to be conducted with “one, more than one or all participants attending remotely.”
Protocol for remote hearings issued for the civil courts.
Lord Chief Justice announced review of Covid arrangements, stating that no jury or physical trials should take place unless it is safe for them to do so but that efforts to bring existing jury trials to a conclusion should continue requiring “considerable imagination and flexibility” to ensure social distancing.
Ministry of Justice listed those “essential to the running of the justice system” as key workers who can access educational settings.
Supreme Court conducts first case entirely by video conferencing (Fowler v HMRC)
New practice direction under the Civil Procedure Rules relating to video or audio hearings during the Coronavirus Pandemic issued. The direction suggests that a hearing will be public if a member of the media is able to access the proceedings remotely (51 Y (3)). Any private hearing must be recorded under the Direction.
First Tier Tribunal (Tax) holds first video hearing and intended to continue to do so. However only the judge and four participants can be accommodated and no recordings made until mid-May when it was hoped to enable recordings and expand to 7 participants.
Judiciary published a new practice direction on video and audio hearings for civil courts which states that a remote hearing cannot be conducted in private where arrangements can be made for a member of the press to gain access. It also established that private hearings can be recorded at the direction of the court and that any person may apply to the court for permission to access the recording.
HMCTS announced a list of ‘priority’ courts that would stay open during the crisis, with some courts ‘staff only’, and others closed altogether.
High Court live-streamed National Bank of Kazakhstan and Republic of Kazakhstan v The Bank of New York Mellon and Ors on Youtube following the Coronavirus Act’s introduction and the law firm acting for Kazakhstan posted daily transcripts of the hearing.
Insolvency court rejects request for adjournment of trial on grounds of Covid.
CPS and National Police Chief’s Council announced an interim charging protocol to establish what type of offences should be “fed into the system,” which establishes that serious fraud cases should not be charged during Covid, but announced that consideration is being given to a virtual specialist fraud court to manage cases.
Lord Chancellor appears before the Justice Committee in private.
Court of Protection heard case entirely on Skype with relevant members of media invited and sent reporting restrictions.
Lord Chief Justice tells The Times that remote hearings will never be suitable for serious criminal trials and dismisses the idea of judge-only hearings.
Patent court rejects application for delay to trial on grounds of Covid although allows extension of time for submitting papers.
Rapid consultation of remote hearings in the Family Court announced.
HMCTS releases data on video and audio hearings during Covid-19 which shows that during April between 85-90% of hearings have been conducted remotely.
Criminal Procedure Rules introduced to reflect Coronavirus Act.
JUSTICE released evaluation of its mock remote jury trials finding some positives including that the defendant was treated with more dignity, and also pitfalls, including technology and how to create an appropriate virtual space.
UK judiciary announced that it had set up a working party to consider how to restart some jury trials once it is safe to do so. The working party includes Bar Council, Criminal Bar Association and Law Society. Remote trials and judge-only trials have been ruled out, although smaller juries are being considered in simpler cases.
Bar Council warns that Covid-19 could have huge impact on sustainability of the profession if court cases are delayed.
Institute for Government published report estimating that waiting times in Courts would increase by 60% if the courts shut for 6 months; that the Courts need £55-110 million per year to reduce the backlog in the courts to pre-crisis levels; and that core spending would need to increase between £30-225 million per year by 2023/4 depending on demand.
HMCTs announced that it was rolling out new Kinley Cloud Video Platform to 60 Magistrates Courts and 48 Crown Courts and is also being introduced to the family and civil courts.
Lord Chancellor is reported to want jury trials to restart in May. This is to avoid what the Lord Chief Justice called “an unimaginable backlog.”
Court of Appeal (Criminal Division) issued a ruling that judges and magistrates should take into account that the impact of a custodial sentence is likely to be heavier during an emergency when sentencing.
Jury Trial Working Group announced a report of its 30 April meeting where it decided and that a small number of Crown Courts would be assessed with Public Health England over the next week with a view to restarting jury trials.
Commercial Court said it has managed to hear the majority of its cases remotely without adjournments.
Labour publish 7 point plan for justice system to operate during Covid including calling for open justice and live-streaming of jury trials.
Justice Select Committee takes oral evidence as part of its inquiry into the impact of Covid 19 on the courts and prisons from Law Society, chair of Magistrates Association, Bar Council and Bar Association, CEO of HMCTS and Permanent Under Secretary of State at the MOJ, Chris Philp. Concern raised that there is not enough data to make video technology the ‘new normal’ and that there is no open justice. CEO of HMCTS states that public galleries are open and it is not breaking lockdown to attend, but recognises that they need to keep thinking about the “public access part.”
University of Surrey research on Video Enabled Justice published finding some evidence that virtual court cases were more likely to end with custodial rather than community sentences and that a third of hearings faced technical difficulties.
Results of first rapid consultation on remote hearings in the Family Courts published by Nuffield Family Justice Observatory, recommending emerging best practice.
Lord Chancellor and Judiciary make announcements that jury trials will resume from 18 May at selected courts with social distancing principles in place. A separate court room with closed circuit link will allow reporters and others to watch.
Lord Chief Justice gave evidence to Constitution Committee on the functioning of the courts during Covid, indicating his preference for a reduction in the number of jurors rather than judge-only trials to deal with Covid backlog, that it is vital that investment in the courts continues, and that online proceedings are likely to carry on post Covid. He says that for every month the courts are closed it adds around 1000 cases to the backlog in the courts.
HMCTS and MoJ updated their guidance for all court and tribunal users during the coronavirus outbreak. Special arrangements have been put in place to ensure physical access to jury trials for the media and members of the public.
Justice Secretary Robert Buckland confirmed that the construction of temporary “Nightingale courts” to tackle a massive backlog of legal cases in England and Wales is being actively considered.
Jury trials in England and Wales resume almost two months after being put on hold due to coronavirus.
HM Courts & Tribunals Service (HMCTS) published a Covid-19 risk assessment tool for jury trials. The document serves as an organisational risk assessment and assessment tool which will enable them to regularly review the safety of their buildings
In a report submitted to HM Courts & Tribunals Service, the Criminal Bar Association (CBA) said it was ‘deeply concerned’ about safety in the Magistrates centres, after a survey had revealed that almost 85% of criminal barristers are concerned about returning to court, citing a lack of basic safety measures.
The global forum of the world’s Commercial Courts issues a memorandum responding to Covid looking at how fair and open justice can be maintained while using new technologies. The memorandum states that live streaming (subject to safeguards) and read access to judicial decisions should be considered.
HMTCS produced guidance for video enabled criminal hearings. Requests from media and others to observe trials need to be made in advance but are not available for jury trials in the Crown Court.
A coalition of campaigning groups, academics and open justice advocates, including Spotlight on Corruption, published an open letter to HMCTS calling on it to set up a remote working group on open justice with members from the not-for-profit and academic sectors.
Civil Justice Council published its report on the impact of Covid on the civil justice system finding that remote hearings work better in senior and commercial courts and for procedural rather than substantive issues; that they pose real problems for lay persons and litigants in person; and may not reduce costs. The report makes recommendations for post Covid recovery including expanding the use of remote hearings for large commercial and procedural hearings. It also called for further evaluation and information gathering including into the number of hearings being conducted in private.