Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for the ‘Chapter 8’ Category

Reform of the justice system: update on progress

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Those who are following the progress of the programme to change the ways in which the justice system works might care to look at the presentation delivered to the 4th Annual Users Conference.

Online sessions were spread across three days (3, 4, 5 November 2020) and covered the work of criminal, civil, family, tribunals and cross-jurisdictional reform projects over the past 12 months, a year that has been significantly impacted by the need to respond to the pandemic.

Readers can access the main speeches at https://www.judiciary.uk/announcements/civil-justice-councils-9th-national-forum-on-access-to-justice-for-those-without-means/

This links to the principal speeches which are on YouTube.

Further information and powerpoint presentation can be accessed at https://www.gov.uk/government/news/hmcts-heads-online-for-2020-public-user-event#history

Review of pre-action protocols in civil litigation – consultation from the Civil Justice Council

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When Lord Woolf published his landmark report, Access to Justice, way back in 1996, one of his aims in making his recommendations for changes to civil procedure was to encourage parties contemplating litigation to put their cards on the table. This way, Lord Woolf thought, litigants might be able to come to their own settlement of the issues in dispute between them, rather than incurring the costs of an actual court hearing. Woolf argued that the courts should be the ‘forum of last resort’.

One of the methods for encouraging parties to come to the negotiating table was through the creation of pre-action protocols (PAPs) – steps that should be taken before formal legal proceedings started. Over the years 17 separate pre-action protocols have been developed for different categories of proceeding.

There have, however, been criticisms of PAPs. For example, it was argued that they created additional expense; they caused delay (both things Woolf sought to avoid); they were not effectively enforced by judges.

In October 2020, the Civil Justice Council announced that it was going to review the operation of PAPs.

According to the Press Release issued at the time: “The review will look at all aspects of PAPs including their purpose, whether they are working effectively in practice and what reforms, if any, are required.”

It went on to state that the Civil Justice Council was particularly interested in looking at how PAPs are working for litigants with limited means; the costs associated with PAP compliance; the potential of PAPs in online dispute resolution, and the potential for PAPs to be streamlined.

Although the Civil Justice Council did set out provisional Terms of Reference for their inquiry, it also said that the focus of the review was not closed. As a first step, the CJC decided to conduct a preliminary survey to obtain feedback and suggestions about what ought to be the focus of the review, and the priorities for reform. This was started in October 2020, and ran until December 2020.

The announcement of the review is at https://www.judiciary.uk/announcements/civil-justice-council-launches-review-of-pre-action-protocols/

The results of the initial survey are awaited.

Covid 19 and the English Legal System (13): Justice Committee reports on the impact on the Courts and on the Legal Profession

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I have noted before that a number of Parliamentary Committees are examining aspects of the impact of Covid 19. The Justice Committee is in the middle of publishing a series of reports on this question. The first two of these, on Courts and on the Legal Profession have been published (30 July 2020 and 3 Aug 2020).

Both reports are, inevitably, in the nature of interim reports – given that we are still in the middle of a crisis, the outcome of which is far from clear.

The first report, on the Courts, takes up the widespread criticism that there were already considerable backlogs and unacceptable delays in the criminal justice system which have been exacerbated by the arrival of Covid 19.

The Committee notes that measures being put in place to improve the performance of the Crown Courts include a possible increase in the number of sitting days and the opening of the (temporary) Nightingale Courts – specially adapted spaces in which criminal trials can be dealt with.

As regards Magistrates’ Courts,  the Committee found that the end of May 2020, there were 416,600 outstanding cases in the magistrates’ courts, which is the highest backlog in recent years. (The backlog previously peaked at 327,000 outstanding cases in 2015.) By mid-June, the figure was even higher. HMCTS has promised a ‘recovery plan’; the Committee states that it looks forward to seeing it.

By contrast with the criminal justice system, the civil, administrative and family systems have fared relatively better. Much of this has been the result of the ability of the courts and tribunals service to move hearings online. The Committee repeats concerns raised elsewhere, for example about enabling those who find it hard to use IT to participate, and that some types of family dispute are hard to deal with online.

The Committee stresses the importance of HMCTS undertaking proper evaluations of the impact of these new procedures on users of the system. It also emphasises that changes in practice arising out of the need to respond to the pandemic should not be adopted on a permanent basis, without more evaluation and consultation.

The Justice Committee report on the impact on the legal profession is not as general as its title might suggest. It focusses primarily on the impact on legal aid practitioners and other advice agencies, arguing that they continue to need financial support if the provision of services – particularly in criminal cases – is not to be lost.

The Committee’s report on the impact of Covid 19 on the Courts is at https://publications.parliament.uk/pa/cm5801/cmselect/cmjust/519/51905.htm

Their report on the impact of the pandemic on the legal profession is at https://publications.parliament.uk/pa/cm5801/cmselect/cmjust/520/52003.htm

 

 

 

 

 

 

Video Hearings Process Evaluation

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One of the many developments included in Her Majesty’s Courts and Tribunals Service (HMCTS) Transformation programme is greater use of remote hearings. Two researchers at the London School of Economics were commissioned to make an independent evaluation of the use of remote hearings. Their findings were published on 29 July 2020.

The report examined the development, implementation, and user experience of the video hearings service and platform across four different hearing types in the civil, family, and tax jurisdictions: Set Aside Judgments, First Direction Appointments, Short Notice Hearings, and Basic Tax Appeals. These were issues which judges in the pilot centres (Birmingham and Manchester) thought suitable for remote hearings.

Methods involved a combination of observation, semi-structured interviews, and analysis of HMCTS documentation. However, the sample of hearings studied was small – just 23 in total.

Some of the research findings might have been predicted: some hearings were subject to technical glitches; judges did not have all the kit (especially a second screen) they would like; they probably needed some more training.

From my perspective, the most interesting findings of the research related to the user experience. The summary states:

Most users commented on the convenience of having a video hearing and the time and cost it saved them. Some users also reported reduced stress and anxiety due to being able to take part in a hearing from their home or from their solicitors office.

Legal professionals felt the cases selected for the pilot were appropriate and also recognised this option as a benefit for parties.

Users reported finding their video hearing easy, effective and straightforward. However, some recognised a challenge with communicating over video and felt that it might be difficult for people who are not familiar with or do not have
access to the suitable technology.

Users maintained the view that pre-hearing support was highly valuable and helped them navigate the technology on the day of their hearing. All users were highly satisfied with how the judge managed the hearing and the formality of the hearing.

Users who experienced technological issues did not report these as unmanageable and thought that judges dealt with any disruption effectively.

The cases used for this research were all dealt with pre-Covid-19. Since then the pace of change has increased and there has been a considerable rise in the numbers of cases being dealt with remotely. An evaluation of this new digital landscape will be published in due course.

While some may wish this, a return to the pre-Covid days is unlikely. A key challenge, however, will be to support those who find the technologies hard to manage; this has to be faced by those seeking to put more hearings on line.

The report, written by Meredith Rossner and Martha McCurdy, may be found at https://www.gov.uk/government/publications/hmcts-video-hearings-process-evaluation-phase-2-final-report

 

Written by lwtmp

August 1, 2020 at 12:53 pm

Transformation of the Justice System: reports on the progress of the HMCTS reform programme

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It is a some time since I wrote about the great Transformation of the Justice system programme that was launched in 2016. It is quite a challenge to follow the progress of the reform programme. I thought it would be useful to bring together the principal documents which relate to the project which will fundamentally reshape the justice system for years to come.

  • The Transformation of the Justice system project was formally launched in a joint statement issued by the Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals in September 2016.

See https://www.gov.uk/government/publications/transforming-our-justice-system-joint-statement

Initially planned for completion in 2021, the end date is currently set back to December 2023, though many parts of the programme have been completed. The principal features the programme can be seen in the following diagram.

The PAC report resulted in six separate responses from the Government, details of which are at https://www.gov.uk/government/news/response-to-public-accounts-committee-transforming-courts-and-tribunals. (see this blog 10 March 2019)

  • One issue, raised in both the above reports,  related to the adequacy of HMCTS engagement with stakeholders. HMCTS responded by commissioning an independent audit of stakeholder engagement which was published in October 2019. See https://www.gov.uk/government/publications/hmcts-stakeholder-perception-audit-report-2019. A further progress report on stakeholder engagement was published in January 2020. (It can be found by googling HMCTS Engaging with our external stakeholders 2020 which leads to a Report published in Jan 2020.)

This has not to date led to a further report from the Public Accounts Committee.

HMCTS issued a response to this report in the form of a Press Release, which is available at https://www.gov.uk/government/news/hmcts-response-to-justice-select-committee-report-on-court-and-tribunal-reforms

I hope that this blog entry, listing key documents and reports relating to the transformation project will be useful for those wanting to get an overview of the project and its progress. I will endeavour to keep readers up with more specific developments as they occur. For the moment, many of these have become intertwined with arrangements that have been made to adjust the work of the courts and tribunals to the effects of the Covid 19 pandemic.

Covid 19 and the English Legal System (11): Civil Justice – results of the Civil Justice Council rapid survey

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As I have already noted here, Covid 19 has had a major impact on the ways in the courts are delivering their services. In particular, much attention has been directed towards the use of virtual or remote hearings – online paper hearings, hearings by phone and hearings by video.

The Civil Justice Council commissioned a rapid preliminary survey of how these new processes were working. The results of that survey were published in early June 2020. It was based on responses to a survey drawn from the experience of those involved in cases in a two-week period in early May 2020. The study was carried out by Dr Natalie Byrom of the Legal Education Foundation.

Obviously, such a survey can be no more than an initial glance at what is happening on the ground. Many of these preliminary findings are what might be expected:

  • many judges and practitioners were finding that they were getting on better with using new technologies than they might have anticipated;
  • they were coping despite a lack of advance training in the use of technologies;
  • the technologies themselves were often not as reliable as participants would like;
  • some types of hearing were more suited to remote hearings than others.

These are the sorts of issue that should be mitigated as all those involved in delivering new services  become better trained and more used to dealing with cases using the new technologies.

From a rather detailed report, four important points for the way ahead may be noted:.

  1. At present HMCTS does not have an effective way of capturing information details about what types of case are brought to court. For example, data is published on the numbers of possession proceedings brought by mortgage companies or landlords against residential occupiers (mostly for failure to meet payment obligations). But it is impossible to get any detailed information about the use of courts for other potential housing law issues. The report makes a strong plea that much greater effort should be made by HMCTS to identify the ‘data points’ which would provide a much more detailed picture of how the civil court system is functioning. Effective planning of future services cannot be provided without more detailed management information.
  2. There was a strong impression that video hearings were better suited for remote hearings that telephone hearings.
  3. There were inevitable concerns that litigants in person might be in difficulty using the new technologies unless adequate support was available.
  4. The survey was unable to capture what lay users of the system, in particular litigants in person, thought of these new developments. It was essential to fill this knowledge gap if the objective of HMCTS’ reforms – to provide services that users want and need – was to be met.

The survey report and related press release can be accessed at https://www.judiciary.uk/announcements/civil-justice-council-report-on-the-impact-of-covid-19-on-civil-court-users-published/

Further information about the Legal Education Foundation is at https://www.thelegaleducationfoundation.org/

 

Probate online: recent developments – a practitioner’s view

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The arrival of Covid 19, and the necessity of trying to keep the legal system functioning with locked-down courts, virtual hearings and the like has meant that other aspects of the justice system Transformation programme have perhaps been forgotten.

The latest edition  (July 2020) of the HMCTS blog, Inside HMCTS, reminds us that other things are also happening, designed to modernise and approve the efficiency of the services provided within the legal system.

One development which has been quietly worked on for a number of years is the creation of means to carry out probate – the process of dealing with a deceased person’s estate – online.

Historically it has been an extremely difficult process, surrounded by a lot of procedural and legalistic complexity.

The HMCTS reform programme included a plan to modernise the process, to make it more straightforward both for practitioners and individual members of the public. An online service has been available since the end of 2019. Around 60,000 members of the public have used the service. And increasing numbers of solicitors are also using the service.

Stephen Cobb, a solicitor with a firm of lawyers who were involved in developing and testing the new process, has written a very interesting account of how the new system works. He stresses that it is still work in progress and that the current system will not necessarily deal with every complex estate. But, for general use, he is impressed with how it works. And he likes the freedom it gives him to submit the bulk of the paperwork on line.

For details, see https://insidehmcts.blog.gov.uk/2020/06/05/reforming-probate-for-the-twenty-first-century/

 

 

 

 

Written by lwtmp

July 11, 2020 at 10:09 am

Transformation of the justice system: money claims online

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In November 2018, HM Courts and Tribunals Service launched its money claim online service. On July 3 2020, it announced that a significant milestone had been reached in the use of this service, namely that, after 18 months, over 100,000 cases had gone through the new system.

The Government states:

The service aims to make it simpler and quicker for people to submit a claim, by allowing them to do so from their own home and removing complex legal language from the online application. Most people take less than 15 minutes to complete the initial claim form. Almost 9 in 10 people using the service have been satisfied or very satisfied with it, with claims now being issued in minutes, not days.

In many cases, this that means claims can be issued, responded to and settled without the need for third-party involvement.

See https://www.gov.uk/government/news/more-than-10000-civil-money-claims-issued-online

(The figure IS 100,000, not the 10,000 mentioned in the Press Release Heading!)

Written by lwtmp

July 4, 2020 at 11:03 am

Covid 19 and the English Legal System (9): introduction of a common platform for remote hearings in criminal, civil and family cases

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Moves towards doing more court and tribunal business via remote links, rather than by personal appearances in courtrooms, had begun even before the Covid 19 pandemic struck. Indeed, the use of virtual or remote courts and tribunals was a key element in the Transformation of the Justice system that was in progress before the virus arrived.

The pandemic has, however, sharply accelerated the expansion in the use of remote hearings.

The Government has been using the Cloud Video Platform (CVP). It was initially used in the criminal justice system across 60 crown courts and 93 magistrates’ courts. The technology has been used in some 3,600 crown court hearings and more than 7,000 overnight remand cases heard by magistrates. It was not used for cases involving jury trial.

The announcement of the first stage in the use of this technology is at https://www.gov.uk/government/news/new-tech-will-help-keep-the-criminal-justice-system-moving-during-covid-19-pandemic

On July 1, 2020, the Government announced that it had decided to expand the use of the CVP to over 120 civil and family courts.

The Press announcement states that: ‘CVP can be accessed by any device that has a camera and a microphone – such as a mobile phone or tablet. Anyone can join easily, and securely, through a web browser, and sessions can be locked to make sure only appropriate parties join. Training rooms can also be set up so that sessions may be rehearsed before they go live.’

Further details are at https://www.gov.uk/government/news/new-video-tech-to-increase-remote-hearings-in-civil-and-family-courts

Although the rapid roll-out of this platform has been driven by the challenges arising from Covid 19, I assume that, once in place, this technology will become part of the fabric of the justice system.

Looking ahead, the full potential of such technology to enable potential court users to access the courts more easily will need to be explored and be accompanied by a substantial public education programme.

 

 

 

Covid 19 and the English Legal System (8): guidance on new working practices

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As readers of this blog will already be aware, I have been considering the impact of the Covid 19 pandemic on the English Legal System. There will, I am sure, be many more blog entries to come.

For those not involved on a daily basis in the work of courts and tribunals, it can be hard to get an overview of what is happening.

An invaluable source of information is available on the Judiciary website which brings together the vast range of advice and guidance on how courts and tribunals should be working in the current environment. Some of this advice is general – applying across the board; other advice relates to specific jurisdictions.

Access to the guidance, which is updated when necessary, is available at https://www.judiciary.uk/coronavirus-covid-19-advice-and-guidance/