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 (15) – Criminal Justice in existential crisis?

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On Friday 30 October 2020 a research consultancy, Crest, published a report Impact and legacy of Covid-19 on the CJS: Modelling overview. Using existing data to model future developments, the report set out what it regarded as the possible impact of Covid-19 on the Criminal Justice System.

The rather sober title of the report was not matched by the press release Crest drafted to draw attention to its study. This was headed “A perfect storm: why the criminal justice system is facing an existential crisis”. This apocalytic vision certainly caught the eye of some journalists – which is of course the reason why I am now writing about it now.

And the report is a really important one, which underscores the urgent need for the Government to get on with the appointment and work of the promised Royal Commission on the Criminal Justice system. (See https://martinpartington.com/2020/07/13/royal-commission-on-the-criminal-justice-system-details-awaited/)

The report starts by reminding readers that, even before Covid-19, the CJS was facing a number of long-standing problems: decreasing charge rates, worsening court timeliness and an estimated backlog in the courts of c.104K
cases, prisons and probation operating at full capacity. Covid-19 has added to those pressures. The report also predicts a future of increased pressure, the consequence of the likely rise in long term unemployment due to the economic impact of Covid, leading to more crime, and the 20,000 increase in police officer numbers, leading to more detection and the need to process more people through the system.

The research team’s modelling suggests, that without any action, the Crown Court backlog is projected to increase from c.45.5K in 2019 in to c.195.5K (x4) in 2024. and the magistrates’ court backlog is projected to increase from c.58.6K in 2019 to 580.3K (x10) in 2024.

Current responses by Government – e.g. making more courts covid-safe and opening Nightingale Courts in a number of town – just do not cut the mustard, in Crest’s view. Much more dramatic action is needed.

The principal criticism contained in the report is that there is currently no ‘whole-system’ view of the challenges facing the CJS. Different parts of the system work in isolation from other parts.

For example: the 20K police uplift will lead to a rise in pressure on the court backlogs; if the courts increase their outflow in sentenced cases, there will be a rise in pressure on prisons and probation.

Furthermore, assuming equilibrium is achieved in courts, suspended sentence orders are projected to increase by 24%, post-release supervision caseload will increase by 30% and community sentence orders are projected to increase by 14% by 2024. This will put extreme pressure on a probation service which was already underperforming.

There is, in the report’s view, inadequate recognition within Government of the interdependencies of each part of the criminal justice system.

The Crest report states that

“to bring the backlog back to pre-Covid levels will require a change in more than just capacity.
Options include:
● increasing the speed with which cases are dealt with: e.g. increasing the efficiency of listing, decreasing victim attrition, decreasing cracked trials etc.
● decreasing the amount of cases entering the court system by increasing effective out of court disposals
● decreasing the amount of police recorded crime originally entering the CJS through effective crime prevention programmes.”

I think some would argue that this list of options is not an original one. All these ideas have been discussed within the CJS, and achieving the outcomes suggested in the report is not easy. But what this report has very effectively done is highlight precisely the challenges that the now increasingly delayed Royal Commission must address. It should be a matter of urgency for the Government to get the Commission up and running.

The Crest Report is available at https://www.crestadvisory.com/post/covid-19-and-the-criminal-justice-system

Covid 19 and the English Legal System (14) – Family Justice

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As with all parts of the English Legal system, the family justice system has had to cope with the effects of Covid-19. A new report from the Nuffield Justice Family Justice Observatory takes a fresh look at how the system has been coping – in particular with the use of remote (where both parties are not in court) and hybrid (where one party is in court) hearings. It is based on a survey of 1300 people involved in family law cases, undertaken in September 2020. It is a follow-up to their first snapshot survey undertaken in April 2020. (see https://martinpartington.com/2020/07/07/covid-19-and-the-english-legal-system-10-family-justice/)

This second survey and accompanying report shows that “most professionals (86%) felt that things were working more smoothly and some reported benefits to working remotely, for both parties and themselves.” However, “[t]hey shared concerns about the difficulties of being sufficiently empathetic, supportive and attuned to lay parties when conducting hearings remotely’. Nonetheless “more than three quarters (78%) felt that fairness and justice had been achieved in the cases they were involved with most or all of the time”.

When it came to how parents and relatives themselves felt. “a majority… (88%) reported having concerns about the way their case was dealt with, and two thirds (66%) felt that their case had not been dealt with well. Two in five (40%) said they had not understood what had happened during the hearing”.

As might be anticipated, there were complaints about problems with connectivity. And there was a feeling that for remote hearings telephone links were not as satisfactory as video links.

The President of the Family Division, Sir Andrew Macfarlane has welcomed the report and undertaken to ensure that the issues raised are addressed.

One specific point made by the Nuffield authors is that they do not expect any early change to practices currently in use to deal with the implications of Covid 19. Because of the urgency of many of the issues which which the family court has to deal, it is essential that all those involved continue to work to improve what is currently happening. Of course, the longer this goes on, the more evidence can be obtained about what works well in the new system as well as what does not work well. I am sure that, after Covid-19, the system as a whole will not return to its pre-pandemic state.

The Nuffield Family Justice Observatory Report and Consultation are at https://www.nuffieldfjo.org.uk/resource/remote-hearings-september-2020.

Sir Andrew Macfalane’s comments are at: https://www.judiciary.uk/announcements/remote-hearings-in-the-family-justice-system-follow-up-consultation-report/

Written by lwtmp

November 1, 2020 at 11:31 am

Jury trial in the cinema?

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I wrote earlier about the experiment run by the human rights group JUSTICE on the possible use of ‘virtual jury trials’ (4 June 2020). This was seen as one way of increasing the number of cases being dealt with while the Court service struggles to protect all those involved in serious criminal trials save from the Covid-19 virus.

I’ve just read a fascinating item by Joshua Rozenberg, describing an initiative taking place in Scotland which involves juries going to the cinema and watching a trial fed into the cinema by closed circuit TV. With the numbers of screens available in multiplex cinemas, such an idea could enable quite significant numbers of trials to go ahead. Initally it is hoped that 16 screens in Glasgow and Edinburgh could be used.

Rozenberg writes: “Cameras and microphones will relay the proceedings to the cinema where jurors will hear and see the trial as if they were watching a movie. The screen will be divided into four so that jurors can see the judge, counsel and the accused while listening to witnesses or viewing the evidence.”

Members of the jury will also be under the eye of a camera, so that they can be seen in the actual court room.

Rozenberg reports the Lord Chief Justice for England and Wales as being rather dubious about this idea, suggesting that it would turn a jury trial into some form of entertainment. But would this not be preferable to proposals to do away with jury trial (an idea supported today by the former Lord Chief Justice, Lord Phillips) – at least for a time – to enable the criminal justice system in England start to offer a more acceptable level of service?

I agree with Rozenberg that this is an idea worth considering. It would also overcome some of the technical problems that might be associated with running criminal trial over Zoom or another video networking platform.

Joshua Rozenberg’s blog is at https://rozenberg.substack.com/p/trial-by-movie.

Some of the potential problems about the use of remote criminal proceedings are discussed by Roger Smith in https://law-tech-a2j.org/remote-courts/remote-courts-and-the-consequences-of-ending-practical-obscurity/

Written by lwtmp

August 20, 2020 at 4:55 pm

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

 

 

 

 

 

 

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 (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 work 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/