Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Posts Tagged ‘Covid 19

Covid 19 and the English Legal System (12): impact on legal practitioners

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One impact of Covid 19 has been the exponential rise in the numbers of legal professionals who are currently working full-time from home. An obvious question is what will be the long-term impact of this development? When the pandemic is under control, will lawyers go back to their offices, as before? Or will there be a ‘new normal’ in which legal professionals will increasingly work from home, making only infrequent visits to their offices?

Roger Smith, who has for a number of years been writing on the impact of new technologies on the provision of legal services, has just published a really interesting blog of what he regards as some of the key developments. He looks not only at what has happened in the UK but draws on reports of developments in other jurisdictions.

For the short term, his conclusion is that, in general, legal service providers have adapted pretty quickly to the new environment – large corporate firms possibly more quickly than less well-funded practices.

One question for the future that he raises is what changes in management styles and management information systems will be required if high percentages of staff continue to operate from home.

See https://law-tech-a2j.org/digital-strategy/covid-19-technology-and-the-access-to-justice-sector-the-first-phase-remote-working/

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Written by lwtmp

July 13, 2020 at 3:37 pm

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/

 

Covid 19 and the English Legal System (10): Family Justice

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In an earlier blog, Covid 19 and the English Legal System (8): guidance on new working practices, published on 3 July 2020, I drew attention to a resource from the Judiciary, setting out guidance to different courts and tribunals on how to manage cases in the current Covid 19 environment.

This note draws attention to just one of the documents that is to be found on that website. The Remote Access Family Court, (version 5), written by one of the Family Court judges, Mr Justice MacDonald, is a detailed statement of the ways in which in the context of the work of the Family Court, remote access hearings may be conducted, the sorts of proceedings for which remote hearings might be appropriate; the considerations to be taken into account when deciding whether a case should proceed remotely or not.

The primary impetus for the production of the document is the need to keep the business of the family courts going, particularly where matters must be dealt with urgently. The document acknowledges that the continuing need for social distancing is likely to mean that the practices and procedures considered in this report are like to retain their relevance, at least for some months ahead.

However, while acknowledging that aspects of the practices and procedures currently being used may be retained once the problems associated with the Covid 19 pandemic have eased, it states in terms that it should not be assumed that changes currently being adopted will necessarily be retained into the future.

What is clearly needed is for HMCTS to gather robust evidence about how innovations in practice and procedure are working, which takes into account not only the views of judges and lawyers, but also – crucially – the views of parties to proceedings who have experienced the new procedures in operation. New ways of working which well should be retained; those which do not should be altered or abandoned.

A very first attempt to gather evidence about the new system in operation was made in April 2020, when the Nuffield Family Justice Observatory was asked to undertake a rapid consultation on the use of remote hearings in the family justice system. This produced some preliminary information which helped consideration of when remote hearings might be possible and when remote access should not be used. For example, there was a general feeling that video hearings are more satisfactory than telephone hearings. There was also worry about some of the difficulties associated with the use of different technologies. But these findings are acknowledged to be only preliminary. Much more work needs to be done before a rounded assessment can be made, on which future policy may be based.

What the pandemic has done – and this comment applies to the whole of the justice system, not just family justice – has created the conditions in which new ways of working can be tested. It would be really disappointing if positive lessons learned from these experiences cannot be captured by a proper research programme, which would help the development of future policies for dispute resolution in courts and tribunals.

The report by Mr Justice MacDonald is at https://www.judiciary.uk/announcements/updated-version-of-the-remote-family-access-court-released/

The Nuffield Family Justice Observatory consultation is at https://www.nuffieldfjo.org.uk/coronavirus-family-justice-system/family-courts

 

Written by lwtmp

July 7, 2020 at 11:38 am

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/

Covid 19 and the English Legal System (7): steps to recovery

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Since March 2020, the Government has worked closely with the judiciary and others to ensure the justice system continues to perform its vital role while keeping court and tribunal users safe.

To achieve this, Her Majesty’s Courts and Tribunals Service has rapidly expanded the use of technology to allow hearings to be conducted by phone and video.

HMCTS also temporarily closed around half of its buildings to focus effort and resources more effectively. The most urgent cases have been prioritised by the judiciary to ensure public safety, protect the vulnerable and safeguard children.

Having responded to the immediate crisis, HMCTS is now focusing on how to recover its operations to increase courts and tribunals capacity to deal both with normal workloads across jurisdictions and outstanding cases.

HMCTS has recently published a progress report to update those interested on its recovery plans. It sets out in a short booklet format the areas of working being undertaken in the short and medium terms.

It assumes that the need to continue to maintain social distancing as far as possible will continue, at least into 2021. It also emphasises that the programme of reform of Courts and Tribunals is continuing. Lessons from the experience of new ways of working, resulting from the need to meet the challenge of Covid 19, must be learned as the broader reform programme unfurls.

The Progress update is at https://www.gov.uk/government/publications/court-and-tribunal-recovery-update-in-response-to-coronavirus

The update has been accompanied by a statement from the Lord Chief Justice and the Vice President of Tribunals, available at https://www.judiciary.uk/announcements/courts-and-tribunals-recovery/

See also a blog from the Head of HMCTS at https://insidehmcts.blog.gov.uk/2020/07/01/coronavirus-recovering-in-our-courts-and-tribunals/

 

Judicial review and Covid-19: reflections on the role of crowdfunding

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This is an interesting item on the use of crowdfunding to pursue issues arising out of the Covid 19 pandemic. it raises some interesting questions about whether this form of litigation finance is appropriate in all circustances.

UKAJI

Judicial review and Covid-19: reflections on the role of crowdfunding

IMG_20200604_123218Sam Guy – MA Social Research student and incoming ESRC-funded PhD candidate at the University of York

The Government’s response to the Covid-19 pandemic has been subject to significant numbers of judicial review challenges, many of which have been financed using crowdfunding. These cases, and the public’s responses to them, illuminate some of the opportunities and threats posed by this resource as a form of judicial review funding.

Crowdfunding as responsive collective action

There are at least two benefits of crowdfunding that have become particularly apparent in the pandemic. Firstly, it can offer a quick and expedient method for claimants to raise money towards potentially otherwise unaffordable litigation. The current environment for public interest judicial reviews is one of scarce state funding and high costs risk. Into this context, crowdfunding provides an alternative, democratised source of funding. As a result…

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Written by lwtmp

July 2, 2020 at 11:19 am

Covid 19 and the English Legal System (5): Parliamentary inquiries (revised)

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Those interested in how key actors in the legal world are trying to cope with the implications for the English Legal System of  Covid-19 might care to follow the work – currently on-going – of two  Parliamentary Select Committees.

The  House of Commons Justice Committee launched an inquiry into Coronavirus (COVID-19) on 31 March 2020. It is examining the impact on prisons, the probation service and the court systems. They have held three evidence gathering sessions in which they heard from a number of key witnesses, including the Lord Chief Justice, the Minister of State, key officials from Prisons and Probation, the Chair of the Magistrates Association. It is likely that the Committee will publish a relatively short report in the course of the next few weeks.

At the same time on 13 May 2020, the House of Lords Constitution Committee opened an inquiry into the Constitutional implications of Covid 19. This will be a more wide-ranging inquiry than that being held by the Commons Justice Committee.

The announcement of the inquiry states:

The Covid-19 pandemic and the Government’s measures to respond to it have significant constitutional implications, as well as health, social and economic ones. These include:

  • The ability of Parliament to hold the Government to account
  • Scrutiny of emergency powers
  • The operation of the courts

The Constitution Committee will consider these issues and other related matters as part of an umbrella inquiry into the constitutional implications of Covid-19. The Committee will initially explore questions such as:

  • What can Parliament do to maximise its scrutiny of the emergency regulations and to hold the Government to account effectively during lockdown? How are adjustments to procedures and processes working in the House of Lords?
  • What are the consequences for different ways of Parliament working on effectiveness, accessibility, fairness and transparency?
  • What emergency powers has the Government sought during the pandemic and what powers has it used and how?
  • What lessons are there for future uses of emergency powers, their safeguards and the processes for scrutinising them?
  • How has the Government used both law and guidance to implement the lockdown and what have been the consequences of its approach? How has this varied across the constituent parts of the United Kingdom?
  • What liberties has Parliament loaned the Government during lockdown? What are the processes for reviewing and returning them? Are the sunset provisions in the Acts and regulations sufficient?
  • How is the court system operating during the pandemic? What has been the impact of virtual proceedings on access to justice, participation in proceedings, transparency and media reporting?
  • How will the justice system manage the increasing backlog of criminal cases? Is it appropriate to rethink the jury system during the pandemic, and beyond, and if so how?

 

To date, the Committee has issued a call for evidence and has had a number of hearings at which oral evidence has been presented. Among the witnesses who have already given evidence is the ‘guru’ of the use of IT in the delivery of legal services, Prof Richard Susskind and the leading researcher on the justice system, Prof Dame Hazel Genn.

I suspect this report will take somewhat longer to appear than that of the Commons Committee.

In addition to these two inquiries which cover many aspects of the working of the legal and justice systems, in mid-May 2020, the House of Commons Public Administration and Constitutional Affairs Committee also launched an inquiry: Responding to Covid-19 and the Coronavirus Act 2020. The aim of this inquiry is set out as follows:

The Coronavirus Act 2020 was emergency legislation passed by Parliament on 25 March, to provide the Government with the powers it wanted to tackle the Covid-19 pandemic in the UK.

Under section 98 of the Act 2020, every six months there is “parliamentary review” which means that the Government must, so far as is practicable, make arrangements for the following motion to be debated and voted on: “That the temporary provisions of the Coronavirus Act 2020 should not yet expire.”

PACAC is launching an inquiry to scrutinise the constitutional and public administration aspects of the Act, with the goal of supporting and informing that debate.

It has issued a call for evidence but has not to date arranged for any meetings or hearings.

For links to all these inquiries see:

The Justice inquiry is at https://committees.parliament.uk/work/254/coronavirus-covid19-the-impact-on-prison-probation-and-court-systems/

The House of Lords Constitution Committee is at https://committees.parliament.uk/work/298/constitutional-implications-of-covid19/

The evidence of Profs Susskind and Genn is at https://www.parliamentlive.tv/Event/Index/0f0810d1-9489-4506-9108-139f6d4f221e

The PACAC inquiry is at https://committees.parliament.uk/work/310/responding-to-covid19-and-the-coronavirus-act-2020/

All evidence sessions held by Parliamentary Committees can be accessed at https://parliamentlive.tv/Commons.

Covid 19 and the English Legal System (4): Trial by Jury

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One of the most serious consequences of Covid 19 has been a huge increase in the backlog of cases awaiting a trial in the criminal courts. Although only a tiny minority of criminal cases are the subject of trial by a jury, by definition they are the most high profile and serious cases.

It is often stated that ‘justice delayed is justice denied’. The authorities responsible for the criminal justice system cannot therefore simply sit on their hands and wait for Covid 19 to disappear. The challenge is to know what practical steps can be taken to ensure that criminal trials do not come to a complete standstill.

At present, the principal response has been for the HM Courts and Tribunals Service to reconfigure existing court buildings to enable trials before a jury to take place in a socially distanced way.

An article in The Times of 4 June 2020 tells how one such trial – in Bristol Crown Court – actually went very well. But, as the author barrister Dominic Thomas points out, the trial required the use of the entire court building – in which  6 trials would normally be going on at the same time. Socially distanced hearings organised on this basis will therefore not make a significant dent in the backlog.

Two alternative ideas have recently been aired. First, also in the Times (May 1 2020), the former High Court judge, Sir Richard Henriques, floated the idea that, at least while the Covid 19 pandemic remains an active threat to public health, criminal cases should be dealt with by trial judges sitting alone. In other words, the use of the jury would be suspended.

This idea might seem to strike at the heart of a key feature of the English Legal System. But it received some heavyweight support (see also Letters to the Editor of the Times on the following day).

In fact, it is not as shocking an idea as might at first appear. It has long been argued by some commentators and practitioners that use of the jury is not suited to particular types of trial – complex and lengthy fraud trials are usually cited as the prime candidate for trials with a judge and assessors in place of the jury.

And it should not be forgotten that there is already power, in the Criminal Justice Act 2003 Part 7, to dispense with the jury in cases where there is a real and present danger of jury tampering – a power that has hardly ever been used but is nonetheless on the statute book.

Shortly before his death in 2018, the campaigning advocate Sir Louis Blom-Cooper completed an important study of the criminal trial system, which among other things shows how, in continental Europe, jury trial was – over the years – replaced by a system of judges sitting with lay assessors.

I share the view that a judge sitting alone would not be the fairest mode of deciding serious criminal cases. The idea of trial judges sitting with, say, two assessors who could help to determine the facts in the light of the evidence presented, seems to me worth pursuing.

An alternative proposal is that jury trials should be retained, but that the trial proceedings should be conducted virtually, with jurors viewing proceedings on computer screens. JUSTICE, the human rights group, is in the process of holding a number of pilot hearings. The first two have been the subject of some independent assessment. The third can be viewed online.

My guess is that as we will be living with the effect of Covid 19 for some time to come, changes will have to be made to the ways in which major criminal trials are conducted.

See: article by Dominic Thomas https://www.thetimes.co.uk/past-six-days/2020-06-04/law/socially-distanced-courts-wont-dent-the-case-backlog-fwgt5p35d

Article by Sir Richard Henriques https://www.thetimes.co.uk/article/jury-trials-could-restart-next-month-as-court-backlogs-grows-says-robert-buckland-rtjq3xpd5

Letters in response: https://www.thetimes.co.uk/article/times-letters-trials-without-juries-would-ease-the-backlog-cdb8bnmwh

Louis Blom-Cooper, Unreasoned Verdict: The Jury’s Out https://www.bloomsburyprofessional.com/uk/unreasoned-verdict-9781509915224/

JUSTICE, Piloting virtual jury trials, see https://justice.org.uk/wp-content/uploads/2020/04/JUSTICE-mock-virtual-trial-press-release.pdf

Evaluation by Prof Linda Mulcahy and Dr Emma Rowden at https://justice.org.uk/wp-content/uploads/2020/04/Mulcahy-Rowden-Virtual-trials-final.pdf

Extract from the 3rd pilot hearing is at https://www.avmi.com/news-and-resources/avmi-develop-and-pilot-first-ever-virtual-mock-jury-trial-service-with-justice/

 

 

 

 

Written by lwtmp

June 5, 2020 at 11:20 am