In a report published at the end of last month the House of Lords Constitution Committee made a number of criticisms of the way the courts have responded to the coronavirus pandemic and the suspension of live hearings necessitated by the lockdown, and made various recommendations as to the need for more resources to reduce the backlog of cases and create a better justice system for the future.

The report was published in the course of the committee’s inquiry, launched in May 2020, into the Constitutional Implications of Covid-19. The committee held a number of evidence sessions, including some dealing specifically with the courts and legal professions. We have summarised that evidence in what was effectively a comprehensive review of the early response of the justice system to the coronavirus pandemic and lockdown: Has the revolution happened? Can we ever go back?

There was also a call for written evidence, to which we contributed. You can read our contribution here: The Transparency Project – written evidence (CIC0019)

Now the committee has published its report on this aspect of its inquiry: COVID-19 and the Courts.

It is worth reading in full to appreciate just how unprepared and ill-equipped the courts system was to deal with the pandemic when it came, how the judiciary and legal professions nevertheless responded as best they could, in the time and with the means available, and how the existing backlog of cases was dramatically worsened by the inevitable restrictions on live (in-person) hearings. The evidence filed by The Transparency Project is cited in particular in relation to matters of open justice, and the often inadequate arrangements made for public access to remote hearings. This is something on which we feel we must continue to advocate as the rules governing temporary arrangements for remote hearings during the lockdown are re-enacted on a permanent basis as part of the court reforms under proposed new legislation, which we wrote about here: Police, Crime, Sentencing and Courts Bill – what does it mean for transparency?

Some observations from the Report

The committee began by noting how ill-prepared the courts were when the pandemic struck, despite an earlier government exercise designed to model the likely consequences, and despite being nearly four years into a massive modernisation project (HMCTS Reform, about which we have written extensively on this blog): 

25. Delays to the original timetable for the HMCTS reform programme meant that a number of planned improvements to court IT systems had not been implemented by the time the COVID-19 pandemic suddenly rendered courts reliant on remote technology. 

26. The Ministry of Justice was involved in Exercise Cygnus, the 2016 government simulation of a flu outbreak, but it only considered the impact of a pandemic on offender management. The potential impact of an outbreak on court operations was not considered.

28. It is regrettable that the potential impact of a pandemic on the courts, a crucial public service, was not considered by those responsible for overseeing the justice system. Had the risk been identified in advance, the urgent need for modernised court IT systems and additional court estate might have been recognised sooner. 

The report then discusses the response of the justice system, including family courts, to the temporary (but indefinite) suspension of physical court hearings during the lockdown: 

37. The most significant change to the operation of courts and tribunals during the pandemic was the move to remote hearings. Delays to the HMCTS reform programme meant that courts staff and users remained reliant on IT that witnesses described as “antiquated” and “virtually below sea level”. Courts and tribunals nonetheless adapted quickly, making use of the limited technology available to deliver remote hearings.

46. The family courts in England and Wales adapted particularly rapidly to telephone and video hearings with mixed results. The Nuffield Family Justice Observatory, an independent research organisation, found that a majority of parents and family members had concerns about the way their case had been dealt with and just under half of those surveyed said they had not understood what had happened during the hearing.

64. We recommend that the Government sets out a timetable within three months for implementing the HMCTS reform programme, including a clear commitment to the funding that will be provided to ensure its prompt implementation.

65. We recommend that the Government ensures training and guidance is available to all judges and court staff operating virtual hearings urgently and, at the latest, by the end of 2021. It is vital that those working in courts are comfortable with the technology used for remote hearings, and that they adopt a consistent approach to its implementation and use.

The committee’s observations on Open Justice are critical and worth quoting in full: 

118. Remote hearings have the potential to enhance the transparency of legal proceedings, enabling journalists to observe more proceedings than if they had to travel between courts and providing convenient access at home for the public, subject to available technology.

119. In the senior and appellate courts, remote hearings were relatively accessible to the public. In lower courts they were more difficult to access. Central to this problem were the variable and incomplete listings for courts. Tristan Kirk, the courts correspondent for the London Evening Standard, said: “This is an area where problems are long-standing but have been exacerbated by the pandemic. The listing systems in place in the courts of England and Wales are not fit for purpose, in my view. In a time of crisis in late March and early April, some parts of the system collapsed, which should be of great concern to anyone interested in open and fair justice.”

120. Transform Justice said: “Information on what has been happening to court hearings in the pandemic has been almost impossible to obtain since magistrates’ court lists are not available to the public.” Analysis of publicly available court lists published over one week in May 2020 revealed that only a minority of County Court centres (14 of 68) published notices with details on how to attend hearings alongside listings information. These notices varied considerably in terms of content.

121. Dr Byrom said that the pandemic had: “exposed the extent to which the current system for collecting and publishing primary legal information, such as listings, transcripts and judgments, relies on in-person workarounds. These urgently need reform. We have a world-leading service for providing free access to legislation in the National Archives, and we need the same quality of service for judgments which are equally part of the law in this country, and yet beyond the reach of many people who need to access them.”

122. Where press and public observance was possible, there were issues with arranging access and the technical quality of the feed. The Public Law Project reported: “A number of the interviewees’ hearings had a press or public presence. While some saw the process of gaining access to remotely observe hearings as ‘quite easy to arrange,’ others noted instances immediately before a hearing where there was a struggle for press to be given the login details to observe the hearing remotely.”

123. Tristan Kirk said that the quality of the sound on remote proceedings was often “not good enough … It far too often cuts out, is not of sufficient quality, and for reporters every word is important and it’s vital that we are able to hear properly.” While he was enthusiastic about the possibilities of virtual hearings for open justice, he noted other downsides such as the difficulty of accessing relevant documents and checking facts: “On a virtual hearing, almost all of the personal interaction between the reporters and the barristers, as well as the court staff, is lost. This is an important part of the job, checking facts and spellings, learning a little more about the case you are covering, and possibly picking up tips on other cases to follow.”

124. The pandemic has exposed the systemic shortcomings in the publication of essential information related to court hearings, especially in the lower courts.

125. We recommend that HMCTS sets out how it will improve the availability of information in the courts for the press and the public. This should include timely, complete, and consistent court listings (for physical and remote hearings alike), documents relating to cases (such as written arguments in appropriate cases), and free access to all court judgments. This work should be integrated with efforts to improve the collection, management, and publication of data on the courts (see Chapter 4).

The issue that has concerned practitioners perhaps more than anything else during the pandemic has been the horrifying growth of the backlog of cases, which was already at unsustainable levels well before the lockdown, thanks to underfunding and court closures:

141. The backlog in the criminal courts is neither acceptable nor inevitable. Years of underinvestment in the criminal justice system contributed to a significant backlog that predated the pandemic.

142. The backlog has now reached record levels. The consequent delay to criminal trials is undermining the rule of law, access to justice and risks damaging public confidence in the justice system. Urgent Government action and investment is necessary to reduce the backlog in the criminal courts.

158. Virtual hearings enabled certain civil jurisdictions to operate close to pre-pandemic levels … but the backlogs in the family courts and the Employment Tribunal have risen significantly since the outset of the pandemic. The stay on housing repossessions is likely to have also created a backlog of cases, although data on the number of outstanding possession cases have not been made available.

164. The backlog in the family courts before the pandemic was significant and returning to pre-pandemic levels will be insufficient.

168. Despite efforts to limit the backlog in the family courts, the number of outstanding cases remains high. Delay in resolving disputes concerning families and children can itself cause significant harm. HMCTS has estimated that it may take three years to return to pre- pandemic levels. Such a delay would be unacceptable.

169. We recommend that the Government explores additional ways to reduce the backlog in the family courts as a matter of urgent priority.

Although HMCTS has been steadily opening more Nightingale courts (other buildings adapted for court use) during the current lockdown, the committee was concerned at reports that they were not being fully used, that there was poor data as to their deployment, and at their inadequacy to resolve the accumulating backlog:

206. Before extending court operating hours, we recommend that HMCTS ensure that it is making maximum use of normal court hours, existing court estate and Nightingale courtrooms, as well as avoiding any restrictions on judges sitting.

208. Nightingale courtrooms enhance courtroom capacity and will, if used effectively, reduce the backlog. Whilst we welcome the sixty Nightingale courtrooms that will open in response to the pandemic, we draw attention to the fact that the backlog in the criminal courts exceeds half a million. It has been suggested that Crown Court capacity would need to double to return to pre-Covid backlog levels by 2024.243 In the employment tribunal the backlog exceeds 50,000 and the family courts backlog exceeds 10,000. Sixty additional courtrooms are insufficient to address the urgency and scale of backlogs across the justice system.

209. We recommend that further funding be made available to HMCTS to significantly increase the number of Nightingale courtrooms open by the end of 2021.

The report goes on to consider other solutions to the crisis, such as increasing the number of judges and their sitting days, commenting on proposals for reducing the number of jurors in criminal cases or allowing some jury trials to be held remotely, and making greater use of alternative dispute resolution in civil cases.

In a section devoted to data, the report notes the inadequacy of data collection currently carried out by HMCTS, especially in the light of its highly publicised and costly modernisation programme. This is something on which The Transparency Project has commented before, as have many others, notably Dr Natalie Byrom in her report published by the Legal Education Foundation, whose recommendations HMCTS promised to implement, and in her oral evidence to the committee.

251. Justice policy and the operation of the courts should be based on detailed, high-quality data. Robust data collection, analysis and publication are essential for enabling HMCTS to plan its services and improving access to justice, transparency and public faith in the justice system.

252. We welcome HMCTS proposals to collect and publish better quality data on the courts service. However, we are concerned that words have not translated sufficiently quickly into action. The HMCTS response to Dr Natalie Byrom’s report is framed in broad terms and lacks a clear timeline for enhancing data collation and publication.

253. We recommend that HMCTS sets out plans for implementing each of the Byrom recommendations that it has accepted, the steps that will be taken, and the timeline for doing so.

As others also noted when giving evidence, while the covid crisis may have forced on the system a need to develop remote hearing capacity much more quickly and widely than might otherwise have been anticipated, it also provided a golden opportunity to gather data on how it affected users, which HMCTS appeared to have squandered.

286. Research suggests that the format of a hearing may have a substantive impact on the case outcome. If that is true, the shift to remote hearings in response to the pandemic must be scrutinised closely. It is vital that sufficient data are collected to assess the impact of remote hearings on outcomes. This is necessary to justify and inform the continued use of remote hearings during the pandemic and in future.

In a final chapter, the committee considered the future use of technology in the courts, concluding with a word of warning which is particularly apt in view of the permanent changes proposed under the Police, Crime, Sentencing and Courts Bill.

299. Operational changes introduced in response to the pandemic should not be regarded as irreversible where they have risked undermining access to justice, open justice or consistency in the application of the law. The pandemic should not be used as an excuse to initiate permanent changes without prior consultation and suitable evaluation of their effects.

300. We recommend that the Government continues to invest in and develop the technology for remote hearings and the guidance to support it, learning from its use during the pandemic. There should be an ongoing process of engaging with researchers and the legal sector to ensure that access to justice is secured during the development and implementation of technology to facilitate remote hearings.

In relation to that last point, we are pleased to note that we have recently been invited by the Ministry of Justice to participate as a stakeholder in what we hope will be constructive consultation over future developments, particularly in relation to the collection, management and publication of legal data and information.

We have a small favour to ask! 

The Transparency Project is a registered charity in England & Wales run largely by volunteers who also have full-time jobs. We’re working hard to secure extra funding so that we can keep making family justice clearer for all who use the court and work within it.

We’d be really grateful if you were able to help us by making a small one-off (or regular!) donation through our Just Giving page.

Thanks for reading!

Featured image: Parliament TV (which broadcast the committee’s oral evidence sessions)