Plans for 2019 - The Online Court: will IT work?

At the end of 2018, senior members of the judiciary did their best to allay the concerns expressed by judges for whom they were responsible. All members of the judiciary received an update from their head of division, summing up individual judges’ responses to the Judicial Way of Working papers (explained in the previous chapter) and outlining the senior judiciary’s plans for the year ahead. This chapter summarises what individual judges were told. It is based on updates that were subsequently published.¹

Civil

Judges dealing with civil cases received a letter from Sir Terence Etherton, Master of the Rolls, and Lord Justice Coulson, deputy head of civil justice.

The two senior judges began by telling their colleagues that the number of civil claims was increasing year on year and that “HMCTS timeliness measures” were not currently being achieved.

Following consultation with the civil judiciary as a whole, seven priorities had been identified:

Staffing the courts
The proposed courts and tribunals service centres
Listing
The court estate
The scope and limits of video hearings
The proper use of legal advisers (case officers)
Effective IT systems

On staffing, the judicial engagement group had suggested ways in which the inevitable staff reductions could be made more workable. HMCTS had agreed to rework its proposals. It had also responded positively to concerns about listing officers and the relationship between the courts and their new service centres.

It had been agreed that courts would be staffed to agreed minimum levels and that all courts would have an appropriate number of listing officers based at the court itself. Judges would retain proper judicial control of all listing functions.

Senior judges were acutely aware that many civil courts were in a very poor state of repair. Ensuring that their condition was significantly improved remained a priority.

The civil judiciary had raised a variety of concerns about video hearings. “One common theme was that they were being proposed in the name of cost reduction but at the risk of justice.”

HMCTS had assured the senior judiciary that all video hearings would be accessible to the public. Those that were not held in open court could be viewed on screens.

Judges accepted that preliminary hearings involving legal representatives could be dealt with in this way. Video hearings could also benefit vulnerable witnesses and those who could not travel to court.

But most judges took the view that trials involving oral evidence were not suitable for video hearings. Judges needed to watch not only the witness who was giving evidence but also the parties, their representatives and their supporters in court. If witnesses were giving evidence by video, the judge could not be sure whether there was anyone behind the camera prompting the witness. Judges were also concerned about the potential loss of gravitas and the risk to the security and confidentiality of the proceedings, given the ease with which they could be recorded and posted on social media.

It had been agreed that senior judges — heads of division — would decide which categories of hearing could take place by way of video hearing. In an individual case, it would always be for the judge hearing the case to decide whether to allow a hearing to be conducted in this way.

A pilot scheme in the tax tribunal — as well judicial experience of video links — suggested that video hearings put additional physical and mental strains on judges. These needed to be understood and addressed.

The courts were a long way from the possibility that any final hearing with contested evidence would be regarded as suitable for a fully video hearing —with all those involved, including the judge, taking part remotely.

Many judges expressed concern about the use of case officers. Since they would all be legally qualified, it had been agreed that they would now be called legal advisers.

Four years ago, legal advisers had been permitted to deal with straightforward hearings at the county court money claims centre in Salford. This appeared to have worked well. Although an aggrieved party had the right to a rehearing before a judge, a new hearing had been requested in just a handful of cases.

As part of the online civil money claims pilot, legal advisers would be allowed to give directions in any claim for up to £300. Again, there would be an automatic right to reconsideration by a judge.

High quality legal advisers would need to be recruited and retained. They would be working closely with judges on particular types of case and would need to be based at the same location as the judge with whom they were working.

Judges had questioned whether the necessary information technology would be available. Many judges through that the IT was of sufficient quality but training was vital to the success of reform.

The judiciary would continue to be closely involved in the development of the common components, including the judicial user interface.

The current business case assumed that better technology would generate a 10% efficiency saving across much civil work. How far that was achievable would need continued attention and measurement. The civil judiciary (along with family and tribunal judges) would save time with a robust and fit-for-purpose digital system designed for their needs.

Assisted digital was designed to help those with some digital competence as well as those with none. Access to justice required support for those without the necessary equipment or skills.

During 2019, the pace of reform was expected to accelerate. Judges were told that their input into the design of specific projects would be critical, as would their involvement in training. Reform would succeed only if they continued to share their knowledge and experience.

Criminal

Sir Brian Leveson, president of the Queen’s Bench division and head of criminal justice, thanked the criminal judiciary for responding to the survey.

On some aspects, his judges had been almost unanimous. These included:

the need for court hearings to achieve effective case management;
the imperative of open justice;
the need to have sufficient trained and experienced staff in the courts;
the need for working technology; and
the need for training in new technology.

Sir Brian said his judges welcomed new technology. Judges in the criminal courts had been working digitally for some time. But they were not confident that that the technology for future improvements would be delivered.

He tried to reassure them. The government was spending £270m on the common platform project, he said, and it had no wish to introduce systems that would not work. The automated track case management system, part of the common platform, was already working well in the single justice process.

From the survey responses, Sir Brian identified three urgent priorities:

Open justice (reflecting widespread concern that it should not be overlooked as judges undertake more work on a digital platform);
Case management (because the crime service model was currently being designed); and
Video hearings (because of the level of misunderstanding about their proposed use).

On open justice, Sir Brian said the courts must at least be as open to the public after reform as they were now; people must be able to see and hear in future what they can see and hear in court now. He and his judges all agreed on the need to preserve this right.

Criminal judges had expressed concerns about live-streaming of hearings, as well as broadcasting, recording and interference with footage. Sir Brian believed that these concerns could be addressed by a live link to a viewing area in the court building where the case was listed. The head of criminal justice had asked HMCTS for confirmation that this “simple, practical proposal will be put in place”. He had no objection to a second viewing area in another court.

All the judges agreed that active judicial case management was essential to obtain early guilty pleas, where appropriate, and to make sure that cases were ready for trial and to ensure that no trial took longer than it needed to.

Case management was a judicial function, Sir Brian stressed, not an administrative one. HMCTS accepted this fundamental proposition. In the revised crime service model — which would support the administration of criminal justice — the expectation now was that plea and trial preparation hearings would take place in court in nearly all cases. He believed the need for these hearings could be reduced with new technology. But case progression technology would not be available before the summer of 2020.

The Prisons and Courts Bill that had lapsed in 2017 would have made it possible for defendants to plead guilty online in a range of cases. At present, the online plea service was being used in a small number of minor cases. Sir Brian agreed with his judges that changes in the way legal aid was provided would be needed before the online plea service could be extended more widely. HMCTS was working on this issue with the Ministry of Justice and the Legal Aid Agency, he said, because early good quality legal advice was essential and safeguards were imperative.

It was originally intended that all remand hearings in the magistrates’ courts should use the fully video model, with nobody present in court. That idea has been abandoned. The crime service model is being redesigned so that the bench has the information it needs to permit pleas to be taken and directions given at the first hearing.

Sir Brian promised that trials would not be conducted using the fully video model in the magistrates’ court or the Crown court, with the possible exception of some minor offences where the defendant lived a long way away. However, he thought that fully video hearings could be used in pre-trial hearings provided robust and effective technology was in place that the judiciary considered effective.

Family

Sir Andrew McFarlane, president of the High Court family division, summed up his message in six headlines:

HMCTS reform team assure us that there will be robust technology in the family court which is fit for purpose and developed with input from the family judiciary.
There is to be testing in Birmingham and Manchester of first directions appointments in financial remedy cases being conducted as fully video hearings.
There is no current plan to extend fully video hearings into other areas of family law.
There will be no case officers in the family court. Consideration is being given to extending legal adviser powers in the family court at the magistrates’ tier.
All family courts will be staffed to agreed minimum levels. Staff will carry out agreed roles to ensure that the judges can be supported in their work effectively and efficiently.
Judges will start to see features of the reform programme and its innovations being more widely rolled out in the family jurisdiction throughout the course of 2019.

The judge also had more to say about the confusing phrase “assisted digital”. It had two meanings, he explained:

The process by which competent digital participants can be assisted to use the digital system to achieve access to the courts
The range of channels — telephone, webchat and face-to-face — in place for litigants who require support to interact with the system digitally.

HMCTS recognised that these channels might not be suitable for all users. Some might not want to stay on the phone to receive support; a centre might not be in travelling distance; or they might want to share a paper form with trusted friends who would complete it with them. As a result, HMCTS would continue to make provision for litigants to use paper documents.

Like judges in other jurisdictions, family judges were concerned at the prospect of fully video hearings. Some felt these hearings were being put forward in the name of cost reduction but at the cost of justice. Others believed they could be used for uncontested case management hearings. Judges were apprehensive that lawyers would lose the opportunity for face-to-face meetings with other lawyers at court that often led to agreements between the parties.

Sir Andrew said that fully video hearings would not normally be appropriate for contested cases involving the giving of oral evidence; for multi-party cases; for cases concerning litigants in person; and for cases concerning children. HMCTS had accepted that:

Robust technology is required for fully video hearings to succeed.
Anyone appearing before the court must be clearly seen and heard throughout, as would be the case if they were physically in the courtroom. The video should ideally capture more than just a head-and-shoulders image.
Broadband speed, wi-fi, and equipment used by those taking part in the hearing must be of sufficient quality.
The use of video technology should not compromise the confidentiality of family court proceedings.

The senior family judiciary proposed that family court litigants participating in any fully video hearing should do so from an authorised place — which could include, for example, a Citizens Advice Bureau, a personal support unit office or a solicitors’ office.

Tribunals

Sir Ernest Ryder, the Senior President of Tribunals, sent a particularly detailed message to the many tribunal judges for whom he is responsible.

Judges will shape and lead reform in each jurisdiction, he said, to ensure that the rule of law is safeguarded and, in particular, that effective access to justice is improved. New process or the use of digital tools should never lead to less fair procedures or less effective access to justice. Judges must strive to ensure that their decision-making is no less open to public scrutiny than it is at present. That required a careful balance to be maintained between open justice and the privacy of an individual’s personal information .

The judges had looked at how to ensure that systems were designed to meet the needs of the people who use them: for example, how digital access is facilitated for the digitally excluded (a new service known as assisted digital). That solution is presently being tested alongside the social security and child support project. There would be users of this project who were likely to be vulnerable and/or digitally excluded. The judges would learn important lessons about their needs from this aspect of the modernisation programme.

Alongside this trial, case officers, working with judges in the immigration and asylum chamber project, will develop an idea known as case supervision. Judges expected the benefits of this project to include improved timeliness and preparation, better access to justice for litigants-in-person, better issue identification, case progression and compliance.

The tribunals led the way in the use of case officers before the modernisation programme began. Many tribunals had registrars, legal officers and advisers and proper officers working with their judges for a number of years. The tribunals successfully tested a new generation of case workers as part of the modernisation programme. There was now a career structure for all authorised officers, as they will be called in the rules and practice directions that permit their use. Authorised officers would never make decisions that were reserved to judges or tribunal panels — in particular, substantive decisions in contested cases — and there would always be an automatic right of review, by a judge, of an authorised officer’s direction.

Implementing change is a specialist task. Specific HMCTS managers and teams will be responsible for delivering successfully piloted projects in each jurisdiction. The delivery of change will depend on agreeing an end-to-end model for each jurisdiction that will provide individual solutions to digital working in each tribunal. Judges will carefully consider how the common components, new processes and ways of working fit together to meet the particular needs of each tribunal. The senior tribunals judiciary had negotiated the necessary funding for digital training, to be overseen by the Judicial College and judge-trainers.

In jurisdictions where video hearings are to be enhanced and fully video hearings tested, great care is being taken to make sure the system is designed with the needs of judges and users “front and centre”. Judges must not, for example, be expected to operate equipment without appropriate support from staff. The judge will need to know (and will know) whether a hearing is being observed. Judicial and user feedback about the system will be captured and analysed to provide quality assurance feedback and research and development opportunities. The same approach to evidence-based testing and feedback will be used in the continuous online resolution pilot for social security and child support cases.

The work towards a tribunals estates strategy that looks at each building in the tribunals estate is an immense task but is nearly complete. Some judges and tribunal members are currently in unsuitable accommodation. It is accepted that provision for the tribunals should in no way be inferior to that provided for the courts. Tribunals and their users have differing needs from each other as well as from the courts. The strategy and the principles that will determine how the leasehold estate is managed and how the judiciary makes its plans for the future is expected to be agreed by February 2019.