Justice - a train ride too far? The (not so) hidden cost of court reform
Sue James, solicitor at Hammersmith and Fulham Law Centre and a specialist in housing law, dissects some of the key concerns surrounding the court reform programme including court closures, tech issues and funding.
What is known as the most ambitious court reform programme in the world has closed 258 courts across England and Wales. There are certainly more closures to follow - without any evidence to date on the impact on access to justice.
It's fair to say the programme of reform, and in particular the closure of the court buildings, has occurred by stealth. Yes, we have had government consultations, but have they been meaningful? Ask the public what they know of court closures - they would be hard pressed to reply. Can you imagine the public outcry if that many hospitals had closed?
Austerity was behind the initial closure programme in 2010 – a need to save money, to cut the budget, but in 2015 the reasoning was redesigned into a reform programme, purporting to give greater `access to justice`.
But has it?
Chicken or egg?
We have been told by the government the court reform programme needs the sale of the buildings to fund it. With more than half of the estate now gone, we don't have the buildings anymore, but neither do we have the technology in place – if you accept the premise that technology can replace courts. Because no analysis by the Ministry of Justice (MoJ) has been undertaken, no impact assessment obtained, or research commissioned either pre or post implementation.
The former Lord Chancellor, David Gauke wrote: `As we pursue and implement more opportunities to settle disputes in a way that progresses cases away from our court estate – be it online or using remote links and technologies – we expect the demand for access to physical court or tribunal hearing room to decrease.`
The crucial word being 'expect'. The MoJ doesn't actually know.
Justice – a train ride too far?
As the distance between courts becomes greater, what is the impact? Court users have to travel longer distances to save their home, face prosecution, provide witness evidence and magistrates and judges adjudicate on cases.
The government has travelled a long way in the last 9 years in terms of what they consider to be an acceptable journey - moving from one hour to twelve. Is this reasonable or even achievable for some clients in remote locations? And what about the cost? I am increasingly seeing tenants walking to court to save their home, as they are without sufficient money to live on let alone pay travel costs. A trip across London may seem short, but a return fare on the tube is £5.80 – that's a huge amount from a Universal Credit payment.
The Association of District Judges wrote in their submission to the Justice Select Committee: "What might be viewed by some as a minor inconvenience of extra travel appears to have a disproportionate effect on court attendance."
They were commenting on the fact that the judges in Sheffield had noticed a decline in attendance at court of Rotherham tenants after Rotherham County Court was closed and the work moved to Sheffield. The judges asked the court staff to document attendance from Sheffield and Rotherham residents and found: 41.3% of Sheffield tenants turned up compared to 30.3% of Rotherham tenants. Sheffield and Rotherham are less than 15 minutes apart by train, but this has made a considerable difference.
In Suffolk, some villages are up to 40 miles away from the nearest court, with one bus per day. Dr Adisa, an independent researcher from Suffolk University, found that more warrants for arrest for 'failing to show' were being made as defendants couldn't get to court. The police were having to drive long distances across the county to pick up defendants and transport them to court – effectively becoming a taxi service for HMCTS and shunting the costs on to the police.
The case of R (Unison) v Lord Chancellor  UKSC 51 [96} established the principle that changes to the justice system should be assessed according to their likely impact on behaviour in the real world. The same principle applies here.
Use of court rooms
The under-use of court rooms was used as a reason for court closure but HMCTS do not have any idea of what an appropriate or desirable capacity this should be. Professor Chalkley, an academic economist of the University of York, carried out an independent review of HMCTS Estates Strategy Analysis. His analysis is contained in Annex 2 of the government response to the consultation:
"I have a concern that the attempt to reduce costs of the estate might ultimately increase the costs delivering justice. There are a number of ways this could happen; through disruption and loss of court time when court rooms are not available, through loss of Judicial time as Judges have to reallocate their workloads, through increased costs of representation as lawyers charge for time and travel costs for reallocated cases…and so on."
He provides an example of increasing bed capacity in hospitals: `As the bed occupancy rate is increased it is true that the cost per patient treated at first reduces, since there are large estates and capital maintenance costs associated with each staffed hospital bed. However, it has also been noted that higher bed occupancy is associated with higher infection rates, and that very high bed occupancy leads indirectly to higher costs per patient treated. Hospitals that are close to their capacity limits end up cancelling operations, wasting time and resources moving patients between wards or between hospitals and in the limit can actually cease to operate at all (become closed to new admissions).`
All of this is strikingly familiar to regular attendees in court - social media is full of such examples: court hearings cancelled at short notice, long waits for hearing dates, numerous adjournments, no available judges.
And what about the accuracy of court use which has been recorded – not with technology - but by ushers, yes busy ushers with more than one job to do already, reporting back to HMCTS. This was confirmed by Susan Acland-Hood, Chief Executive of HMCTS, in September 2018.
No wonder then, that there have been issues with the correct recording of use. The Law Society found that the closure of Buxton County Court was based on an assessment of under-utilisation of four court rooms when there are only three. We also know that courts are often not being used - not because of lack of cases to list - but because of staff cuts and the lack of judges.
When a court lift's spoof Twitter account attracts over 1000 followers over a weekend it highlights the anger and frustration of the profession about the physical condition of the buildings that remain in the court estate.
The lift at Reading County Court had been out of operation for more than a year before it was repaired. When barrister, Gordon Exall, asked directions to the court on Twitter he was inundated with tales of the broken lift - which resulted in the Twitter account being set up. The Secret Barrister tweeted: `Finally the lift in Reading County Court, lying broken for a year as an emblem of our tattered starved justice system, has its own Twitter account. Do follow`. People did!
But this wasn't just a repair issue. The broken lift prevented those most vulnerable from being able to access justice – supposedly at the heart of the court reform programme. It's one of many examples.
Is the technology really going to be 'fit for the future' when it isn't even fit for the present?
On the 19 July 2019, The Law Society Gazette reported that over 30,000 hours of court staff overtime was spent addressing backlogs created by the IT disruption in the courts at the beginning of the year. Former Justice Minister, Robert Buckland, confirmed the report on the crisis would not be made public "to protect the department's security and commercial interests". Really?
The move to replace physical hearings with on-line processes continues with the second reading of the Courts and Tribunals (Online Procedure) Bill which is now at the Report Stage. If passed it would create a Committee who would decide whether proceedings currently taken through a physical court should, in whole or in part, be conducted instead online.
What do we know of the success of on-line courts?
The Ministry of Justice survey, left unpublished by HMCTS, only came to light after Penelope Gibbs, of Transform Justice made an FOI request which showed that users of the justice system who had physically been in court were almost 50% more likely to strongly agree that they had been listened to; that the courts were open and accessible; and they were able to participate and take part with confidence.
User satisfaction surveys were used in the assessment of the efficacy of the Civil Money Claims online service rather than robust measures of procedural fairness. The questions that were asked have not been made public, but Susan Acland-Hood claims over eighty percent of users have told HMCTS the service was very good. If this is indeed the case, transparency would be valued.
The 2018 HMCTS report evaluated the user experience of the pilot video hearings in the Tax Chamber. It found the majority of video hearings experienced technical difficulties and lasted longer. But, as only eight video hearings were conducted it's extremely difficult to draw any conclusion or understand the value from this pilot.
Video hearings have been running in criminal courts since 2000 e.g. a video link into court from prison - but there has been no research and evaluation about impact. Recently HMCTS denied on Twitter that there was a 15-minute rule for lawyers using the video link with their clients. Penelope Gibbs of Transform Justice asked lawyers to respond with their experiences – she was overwhelmed with responses affirming this was the position - or often less than 15 minutes - as the video links often didn't work properly.
Lord Burnett of Maldon, the Lord Chief Justice, stated when giving evidence to the Justice Select Committee, "No litigant in person will be required to use digital services". But it's hard to see how there will be choice if the courts have closed and the courts left are too remote to access.
Underlying this reform is an attitude from government that lawyers are not needed, they are expensive, and can be replaced by technology. That court users are consumers and justice a product to be sold.
Selling off the family silver
And at what price have we sold off the beautiful, historic buildings that house our courts?
Hammersmith Combined Court, a new-build only 11 years old, was sold for £43 million. We don't yet know its resale value, but it has a planning application pending for a hotel. The resale value on many of the courts has been substantially higher with conversions to hotels, flats and cafes. Developers are making a profit.
Could the buildings have been put to better public use? Provided much needed homes?
The disposal of surplus government land is regulated by the 2017 Guide for Disposal of Surplus Land and supports key policy areas of increasing housing supply. I know of only one court that has provided homes in line with the policy - Halifax County Court - which is being transformed into apartments for adults with learning difficulties.
The MoJ has paid management consultants a total of 61 million since 2016 and, despite the reform programme being behind schedule, in 2018 Susan Acland-Hood was paid a bonus worth £10,00 - £15,000. Cuts to staffing within the court service are said to be in the region of 5000 jobs.
Research and evidence
The MoJ has spent £2.2 million on contracts for user experience research but no academic research. Dr Natalie Byron, who spent three months seconded to HMCTS from The Legal Education Foundation, writes in her Report: "External engagement in the development of a detailed evaluation plan for both the reform programme as a whole and the individual projects that comprise it has, to date, been hampered by the lack of availability of logic models and intended outcomes for individual service projects (such as Civil Money Claims Online service)."
The evidence given to the Justice Select Committee has included calls for research and analysis before any further courts are closed. It`s a common cry from many, but to date the focus from government has been more on cost savings than improving services and access to justice.
As lawyer Enselm Eldergel put it so eloquently at the Legal Aid Lawyer of the Year Awards 2019: "The 40% cut to the justice budget over a decade has resulted in the evisceration of justice - not once but four times over."
Views expressed in our blogs are those of the authors and do not necessarily reflect those of the Law Society.
Sue also features on our podcast: A look at how the court closure programme is impacting court users
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