What would true court modernisation look like?

Plans to modernise the courts in England and Wales may change how the justice system looks and feels, but it may not provide the forward thinking justice really needs.

Katherine Sirrell
15 May 2017

There are important questions around fairness in our justice system not covered by current modernisation proposals. Photo: AJEL/Pixabay. Some rights reserved.

The efficiency of our courts is crucial for delivering an open, reliable and fair justice system. The government’s court modernisation proposal – as set out in their consultation paper Transforming our Justice System – is broadly a plan to speed up proceedings and go digital. And they are planning to invest £1 billion in the entire process. But are the proposals ultimately one of form rather than of substance?

Speeding up court processes and improving accessibility for users must be encouraged. In the last few years, digital case papers and iPads have been introduced to the Crown Court and magistrate’s bench respectively. The move has been successful, helping the efficient use of court time. And we already have single justices dealing with traffic offences online, freeing up court time when a guilty plea is lodged. Arguably, civil courts lag behind the digitalisation process that has already begun elsewhere.

Without manpower...court officers and professionals are literally left shouting at an empty room through a screen.

Advanced court technologies will allow victims, Claimants and witnesses in criminal and civil matters to give evidence remotely and avoid the trauma of a live hearing. There have already been successful pilot programmes at the Crown Court in Liverpool, Leeds and Kingston-upon-Thames that allow victims and witnesses to pre-record their cross-examinations.

There are however legitimate concerns that the digital systems will not provide the kind of utopian future the Ministry of Justice (MOJ) suggest.

Technology moves quickly, public bodies do not. Although certainly not an argument for avoiding digitalisation altogether, we should be mindful that the technology being used and trialled may already be out of date, and is by no means a golden ticket in terms of solving inefficiency concerns.

As with all technology, the court systems will only be as good as their users. I have sat with a witness giving evidence via video link, and have tried to take client instructions over video link. Unfortunately, both have been disastrous. I am told by a colleague who recently tried to take instructions from a client in police cells via video link that there is no timetable or arrangement managing the call. It effectively involves shouting at a video screen which is being broadcast into an empty room, waiting for a passing officer to hear you, enter the room, and note your request to talk to a prisoner. The idea that this is somehow more dignified, advanced or effective than what is already happening is an illusion. Without the manpower, or possibly the willpower there, court officers and professionals are literally left shouting at an empty room through a screen.

Justice delayed is justice denied, but justice sped up is not necessarily justice delivered.

Efficiency is also clearly not just about reaching a result faster. It is also about ensuring all relevant evidence has been made available, all representations have been made, and that considerations of these can take place while the issues are still fresh. Justice delayed is justice denied, but justice sped up is not necessarily justice delivered.

This is not to say that technological advances are to be ignored, or avoided. But we shouldn’t forget that the system is run by people, not technology. If there are problems already in existence, for example police staffing levels, they will continue to exist and impact on efficacy.

Arguably the courts in England and Wales have for a long time been struggling with underinvestment, a low public opinion of the system and more recently political attacks on our judiciary. Perhaps we should be less worried about the form in which justice is delivered, and instead concerned with the substance of the decisions and participants involved. Are there not bigger issues that need addressing to ensure justice for all?

There are many important questions about fairness that are not addressed by the proposals. How will the system ensure that the most vulnerable in society obtain access to the internet (which, according to the Office of National Statistics, they currently do not have)? What steps are being taken to ensure our judiciary is sufficiently representative of those who come before it? Is it right that we as a society discourage victims of accidents from making claims for their injuries? Is access to justice meaningful in light of massive cuts to legal aid? What impact on justice does the media’s attitudes to the penal system and sentencing have? Should we be looking at alternatives to custody similar to those being developed by our European cousins? The list goes on.

Our justice system is not simply a collection of court buildings, of hardware and software and of procedures. More truly, it is about the people it is there to serve.

If we do not confront these issues, we risk having a more technologically advanced court system that is failing to deliver substantive justice. We also risk distrust in those making the decisions and people lacking the ability to move on with their lives after they have moved through the system. Our justice system is not simply a collection of court buildings, of hardware and software and of procedures. More truly, it is about the people it is there to serve.

The spirit of the law and justice system must be modern, reflective of our society and forward thinking while being transparent and clearly rooted in our history and case law. This must not just come from Whitehall - in fact it is imperative it does not. Anyone with an interest in access to justice – court users, the legal profession, the judiciary – should be involved in this modernisation. I am heartened that Lord Justice Fulford, the senior judge leading the modernisation process, is adamant that the judiciary should have a role in the discussion surrounding the process of modernisation, and that many other court users including the Crown Prosecution Servie (CPS), police and local authorities are participating in the process. 

At the heart of our justice system are the judiciary, the legal professionals, the court users, the Claimants and the Defendants, the victims and the accused and the officers of the court. The tools and processes available to those involved in the system should be more efficient in order to assist them in the delivery of justice. But the spirit and the form that justice takes, and even perhaps the reporting of the decisions, should equally be under the microscope for reform. The hope is that digitalisation is just one of many steps towards true “modernisation”.

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