Our new digital court will probably increase the number of people who need unbundled legal advice.
Imagine you have been stopped for travelling on a train without a ticket. You bought one from the machine but left it behind. Or maybe the machine wasn’t working. But nobody has accused you of dishonesty. You told the ticket inspector your details and you have now received a court summons, accusing you of failing to produce a ticket as required by section 5(1) of the Regulation of Railways Act 1889. Though you do not realise it – not being a lawyer – you have a complete defence because you gave your name and address.
Since it seems the easiest thing to do, you decide to plead guilty by post. Or you do so online. Either way, your case will be considered in your absence by a magistrate, sitting in chambers but supported by a legal adviser, under the single justice procedure introduced by the Criminal Justice and Courts Act 2015. Unless, that is, you find out about the law in time to change your plea.
The government’s Prisons and Courts Bill, published last month, will provide a revolutionary new way of handling guilty pleas to summary, non-imprisonable offences. No magistrates will be involved. And failure to produce a train ticket will be one of the first offences for which you can choose the new procedure, to be called automatic online conviction.
It will begin with an email from the court setting out details of the charge and telling you the standard statutory penalty that you will have to pay if you choose to plead guilty – the fine, victim surcharge, costs and, if relevant, compensation and penalty points. Click the big green button on your computer or smartphone and you will collect an immediate criminal conviction. You then have four weeks to pay the penalty online.
In general, I welcome this reform. I can’t imagine that people volunteer as magistrates so they can sit in a room and rubber-stamp guilty pleas. But I do think the new procedure should provide a cooling-off period, short but unconditional, along the lines of consumer credit agreements. It will be all too easy for people to plead guilty when they get home in the evening, tired and perhaps even emotional, without taking in the consequences to them of a criminal conviction.
True, the bill will allow magistrates to set aside online convictions – but only if these appear ‘unjust’. That would apply, I suppose, in cases where the defendant had failed to mention a valid defence. But I can’t see that it would apply to people who have second thoughts and prefer to take their chances on getting off.
Innovative though online criminal convictions may be, they are not nearly as dramatic as the changes the bill will make in civil, family and tribunal proceedings. This may not be immediately obvious since the bill does not actually create the much-heralded online court. Still less does it decide if that is what the new court is going to be called.
Instead, it creates an Online Procedure Rule Committee with power to make rules of court and tribunal procedure rules. These rules will require specified proceedings to be ‘initiated by electronic means’. Once started online, these proceedings may be ‘conducted, progressed or disposed of’ electronically. The rules may provide for specified proceedings to be taken in a court or tribunal that is not the one in which they would have been taken under the standard rules. This, I think, may be the first tentative legislative reference to what is expected to become a world-beating digital court.
Will it be a court without lawyers? No, said Lord Justice Briggs when he launched the idea last year. Indeed, by making it easier and cheaper to litigate, the court will probably increase the number of litigants in person who will need ‘unbundled’ legal advice at key points in the proceedings.
And will these online criminal courts operate without public scrutiny? Not according to the government: decisions will be published online.
More broadly, the bill makes detailed provisions for the use of live video or audio links in specified criminal proceedings. Matters that are currently dealt with in a physical courtroom will be conducted in a ‘virtual-enabled’ hearing – where some of the participants are elsewhere – or in a ‘fully virtual’ hearing, where there is no physical courtroom and all the participants take part using telephone or video conferencing facilities.
In a fully virtual hearing, the court may direct that the proceedings are to be broadcast so that the press and public can follow them. The intention is that they will be viewable only on screens in court buildings, where officials can check that they are not being recorded for wider broadcast to the public.
In the end, then, we may see even greater transparency: good news for reporters, but perhaps not for people who travel on trains without tickets.