Few solicitors and judges bearing the brunt of court closures reckon technology is any kind of panacea. Grania Langdon-Down reports.
As courts around the country start to close, practitioners, magistrates and deputy district judges paint a worrying picture of long journeys to understaffed courts with poor facilities and limited technology.
And they join the Law Society in warning that access to justice will suffer because the Ministry of Justice and HM Courts & Tribunals Service (HMCTS) are pressing ahead with closures before the much-heralded ‘pop-up’ and online courts and other digital projects intended to mitigate the impact have even been tested.
But it is a chicken-and-egg situation. HMCTS interim CEO Kevin Sadler paints a rosier picture, of a modernised justice system financed by savings from the closure and sale of buildings, alongside the Treasury’s promise of £700m for new technology. While he acknowledges a ‘lot more needs to be done to bring the court system up to date’, he tells the Gazette that victims, witnesses and families will see improvements through modern buildings and reduced waiting times over the next four years.
Sadler describes a ‘new world’ where access to justice is not dependent on proximity to a court. He says upgraded video link systems have already been installed in 200 Crown, magistrates’ and civil courts; the first pop-up court will open in the town hall in Tunbridge Wells, later this year for possession claims and some insolvency cases; and a mobile video link van is currently stationed at HMP Thameside, testing a series of video link hearings from the prison to Thames Magistrates’ Court and Snaresbrook Crown Court.
But, in the meantime, what is the reality today for those using the courts, which former lord chief justice Lord Woolf told peers recently was ‘uniformly bleak’ after resources had been ‘dramatically reduced’ year after year?
It is a year since the MoJ launched a consultation on the last round of court closures, which attracted more than 2,000 responses. But despite campaigns launched by local court users, only five of the 91 targeted for closure – nearly a fifth of all courts and tribunals in England and Wales – were reprieved.
The closures were justified on the grounds that, on average, the 86 courts closing were only used for just over a third of their available hearing time. More than 97% of citizens would still be able to reach their required court within an hour ‘by car’.
However, the MoJ’s own modelling shows how hard some (in particular rural) areas will be hit. Only 6% will get to the replacement court for Barnstaple Crown Court in Devon within an hour by car, with no one able to get there within that time by public transport. Even where 100% could get there by car within an hour, such as at Macclesfield Magistrates’ Court, only 12% would make it by public transport.
‘The most positive message,’ Malcolm Richardson, national chair of the Magistrates Association, says wryly, ‘is the MoJ and the HMCTS did an extremely thorough job in order that they were completely confident that their proposals were the right ones. So, apart from those five courts, none of the consultation responses was enough to shift them from that position. Alternatively, you could say they didn’t listen.’
While some of the closures were seen as justified, the Law Society argued strongly against others and has been meeting officials to understand the ‘financial requirements’ behind the closures and consider ‘alleviating measures’.
‘We are hugely disappointed that the government is pressing ahead with the closures,’ immediate past president Jonathan Smithers tells the Gazette. ‘Combined with increases in court fees and reductions in eligibility for legal aid, many of the closures are making it more difficult for a significant number of people to get to court, disproportionately affecting people with disabilities, lower income families and those living in rural areas – so deepening inequalities in the justice system.’
While the society supports modernisation, Smithers says alternative provisions, including through improved use of technology, are ‘still untested and cannot fill the immediate gap created by each court closure’.
But that has not stopped enthusiastic calls from senior judges for pop-up courts in pubs, town halls and hotels, or hearings via online video links. ‘If litigants want to engage with a judge from their kitchen tables to deal with a power of attorney, why can’t they?’ Sir James Munby, president of the Family Division, asked recently.
As the Gazette went to press, Lord Justice Briggs was due to publish his review of the structure of the civil courts, with its proposal for an online court for claims up to £25,000.
Asked whether the closures should have waited till alternatives measures were in place, Sadler says the court estate is kept under continual review. He pledges that ‘all the closures that are contingent on alternative provision will not close until that is in place’.
He also maintains that the court service did listen to the consultation responses, pointing out that the original closure proposals for 22 of the 86 courts were changed as a result, adding: ‘It’s vital we learn from court users and the expertise of the judiciary to deliver the best service.’
But he says the £500m being spent maintaining underused and dilapidated buildings is ‘simply unsustainable’. Selling court buildings no longer needed ‘in the new world’ will provide £300m towards an investment of nearly £1bn in HMCTS.
The money will be split three ways, says Sadler: £230m on ensuring courts deliver justice in a ‘modern way’; £280m on developing digital solutions; and the balance on related costs, including training and voluntary redundancy payments as efficiencies reduce the need for staff.
With so much emphasis on the millions promised for improving the system, the Gazette asked people working at courts around the country for their views on this ‘new world’. Responses suggest they have seen little sign of reinvestment following the previous 146 court closures.
Suffolk criminal practitioner Declan Gallagher’s local magistrates’ court in Bury St Edmunds is to close in September. Trials will go to Ipswich Magistrates’ Court, which the court service said has the capacity to take the extra work.
‘In reality,’ says Gallagher, crime and motoring partner with Burnett Barker Solicitors, ‘it is a depressing, dingy, dank hole of a place. The damp which creeps through the plaster surrounding the royal court of arms above the Ipswich bench is a physical metaphor for the shambles we are in.’
Claire Furlong, a senior solicitor at the firm, texted despondently from the court: ‘Youth court list at Ipswich of 32, longest in four years. Two sets of toilets broken and raw sewage seeping into an upstairs office which has had to be evacuated. Gents using upstairs ladies; ladies using witness care gents. Youths seemingly oblivious. Perhaps Bury St Edmunds should stay open a bit longer than September?’
Both were involved in providing evidence for a well-coordinated campaign to keep the court open. This attracted political, judicial and press support – clients from parts of Suffolk could face a public transport journey of over three hours to Ipswich.
What angers Gallagher is that the court service promised there would be liaison with local stakeholders to investigate alternatives before the court closed. But that, he says, appears to have been a ‘sop’ to the campaign.
‘I was told in an email in April that a local implementation team had been set up to take the closure forward and explore options with local stakeholders,’ he says. ‘There was also talk of a monthly newsletter and I was asked how I wanted to be contacted. But there has been nothing since – it is all so much hot air.’
Another high-profile campaign was run in West Sussex to save Chichester Combined Justice Court. Family practitioner Sara-Jane Fildes, director of the Owen-Kenny Partnership, says the implications are ‘devastating’.
The ‘only light’ was a promise by the court service that it would send a local leadership group to look at alternative provisions before the centre closes next March. But, she says, the leadership group is made up of judges mainly from Kent and Surrey, and HMCTS officials. It will not allow local solicitors or barristers on to the group and will only take written submissions.
‘We are deeply concerned that, although the court service says it will not close courts until alternative provision is investigated, it is already closing them – it has now stopped listing Crown Court work at Chichester,’ she says. ‘HMCTS says it is looking at a “video-link room” as an alternative. However, this is a poor substitute for the closure of a seven-court-room combined court and we are arguing strongly that alternative provision should be a court hearing centre at least.’
Ten courts were singled out for closure in Wales with only Carmarthen Civil, Family, Tribunal and Probate Hearing Centre escaping the axe.
Criminal practitioner Iestyn Davies is a partner with Welsh solicitors Evans-Roberts, a traditional high street firm serving Gwynedd, Powys and Ceredigion. Dolgellau Magistrates’ Court is to close once ‘alternative arrangements’ have been made. ‘Nobody knows what this means,’ he says.
While the economic argument for closure might be sound, Davies says ‘it destroys the concept of local justice, and blatantly discriminates against rural courts and rural communities. In the case of Dolgellau and Caernarfon, that is an extra three hours travel on rural Welsh roads, after getting to Dolgellau in the first place, plus the cost of doing so, time off work, childcare arrangements and so on. Real life problems have simply not been a consideration.’
View from the bench
For deputy district judges (DDJs) – traditionally solicitors taking their first step on the judicial path – the court reform programme is having a significant impact on their working lives.
While they support the modernisation programme, they are frustrated by court closures, poor IT, lack of official email addresses and ‘frankly dismal’ facilities.
The names of the DDJs quoted below have been changed so they can give their insights on life amid the turmoil of the reform programme.
Court closures are leaving some replacement courts struggling to cope. Claire describes hearing rooms carved out of waiting areas, leaving less room for advocates to discuss cases in confidence.
‘I don’t know if it is coincidence,’ says John, ‘but, as courts have closed, I have seen lists get more and more manic. I don’t expect a busy [Possession Claim Online] list but the other week I had 54 hearings, five of which were listed for 30 minutes each. Then three of us had a back-to-back small claims list with 28 hours of hearings. Fortunately, somebody else’s trial collapsed, freeing them up to help. But the point is we should not be opening files for the first time as a litigant in person walks into the court.’
Much is riding on technology, but the DDJs’ day-to-day experience is currently far from hi-tech.
Ben has been a DDJ for six years. ‘In all that time I have never seen a pool laptop,’ he says. ‘When I enquire I am told either there isn’t one; there is one but they don’t know where it is; or there is one and they know where it is but either it doesn’t work or they don’t know the password.’
Claire has a children ticket, but no way of drawing an order for LIPs, while Mark sat recently in a large city court where he couldn’t access the court Wi-Fi. ‘No judicial computers are available,’ he adds. ‘I could produce typed orders if the templates were available to me but they are not. I have no access to printers so I cannot print orders, which would be a valuable resource for LIPs.’
When it comes to general facilities, John describes ‘leaking/broken A/C units, windows that will not open, carpets that have holes in them or are frayed to the point anyone who trips on them could sue and win.’
Security is also a ‘joke’, says Charles. ‘I wouldn’t fancy the chances of any of the security guards against anybody who was determined to cause injury.’
Sadler acknowledges there is much still to be done but one immediately welcome move is his pledge that DDJs and all other part time/fee paid and tribunal members will have their eJudiciary accounts set up by the end of July.
And ‘despite the moans’, the DDJs are keen to stress that the role remains one of the ‘most interesting jobs around’.
The administrative agenda is overriding justice, he argues. ‘The court service is in danger of creating a real disconnect between the court and the population. Where justice is not being seen to be done we begin to think it has nothing to do with us. It can’t just be a “drive-thru” or something that happens at arm’s length. We have to be able to participate in a meaningful way and we can only do that on a local level.’
Stuart Wild is head of the criminal department at Bird & Co, based in Lincolnshire and Nottinghamshire, and a member of the Criminal Law Solicitors’ Association (CLSA). He campaigned against the closure of Grantham and Skegness magistrates’ courts, which will leave the county with just two court centres, despite poor public transport.
‘From a personal point of view, we have been advised that we can become court duty solicitors at Lincoln Magistrates’ Court. But the Legal Aid Agency says this then becomes our local appointed court and therefore it will not pay travel or car parking,’ he says.
Practitioners say the HMCTS is taking advantage of a trough in magistrates’ court cases to justify closing ‘underutilised’ courts.
Richard Atkinson, managing partner of Kent solicitors Robin Murray & Co and former CLSA chair, says this ignores the volatility of criminal work. Dartford Magistrates’ Court is being closed despite its history of being used as a ‘blitz’ court to catch up with a backlog of cases and taking the overspill following the London riots.
In London, Ruth Harris, criminal defence partner at Hodge Jones & Allen, says Wi-Fi provision has – at most courts – been the success of the digital roll-out. Once registered, provision is usually fast and easy to connect to, while criminal cases are moving towards being paperless.
However, the court closures have taken no account of local problems caused by criminal activity linked to geographical area. ‘Often, our clients keep to their local areas and attendance at a court outside the borough may seem an insurmountable journey,’ she says.
On the civil litigation side, Nick Goldstone, partner and head of dispute resolution at London firm Gordon Dadds, went to a costs and case management hearing in a long-running boundary dispute at Hertford County Court only to be told that multi-track cases at any county court within the Hertford and Bedford county circuit are going to be transferred to Oxford – 74 miles away.
‘So much for access to justice,’ he says. ‘I know the court system is creaking under the austerity cuts but I don’t think the current regime of cutting the administration of justice in local courts is doing anyone any good.’
Georgina Squire, a committee member of the London Solicitors Litigation Association, heads the dispute resolution team at London solicitors Rosling King.
She says the High Court is sending cases of less than £250,000 off to the county courts where they end up in long queues for hearing dates.
‘Our hearts sink when we are moved to a county court, particularly central London which is groaning at the seams. I suspect it will only get worse with the court closures unless they staff up the replacement ones to accommodate the additional workload – but I am not aware of that happening.’ she says.
‘Clients don’t understand why they are being asked to pay such high fees when the service is so slow and the facilities are often very basic.’
An online procedure such as Money Claims Online can work efficiently because it involves a simple debt. But Squire says online systems will not work in more complex claims.
For family practitioners the closures are undermining recent reforms, with family hearings being moved back into magistrates’ court with less family-friendly spaces, no break-out rooms for private discussions and no guarantee of continuity because it can be a different bench each time.
Grant Cameron, a family partner with south of England solicitors Trethowans, is Resolution’s lead on court closures. He says there is a north/south divide in relation to the new centralised divorce hubs, with practitioners reporting the former running efficiently while the major hubs in the south east and south-west are struggling to cope with the volume of work.
Juliet Harvey, a chartered legal executive specialising in family cases at Suffolk firm Greene & Greene, says the campaign against the closure of her local court in Bury St Edmunds did result in the court service agreeing to hold family hearings in the town’s county court building. However, all cases will still have to go to Ipswich initially ‘which is a complete nightmare for a parent with small children on public transport’.
The idea that pop-up courts could provide alternative venues is worrying unless they have sufficient security and privacy, she says, given there may be cases involving serious abuse.
Local authorities have also fought court closures in the face of a 40% increase in public law care proceedings. In Northumberland, council lawyers warn closing local family courts could cause delays and put extra pressure on parents to get to the replacement courts. The county council invested in a case management and electronic bundling system following discussions with HMCTS, but problems of compatibility with the new eJudiciary system mean its legal team has had to take on a bundling clerk and courier paper files to court.
Despite concerns touching every type of court, Sadler counters: ‘We monitor workloads carefully to make sure our available court estate matches our operational requirements. We are committed to providing alternatives to travel and, in the digital age, online solutions and video hearings will make access to justice easier and reduce dependence on the court estate.’
In the run-up to the closure of the Dolgellau court, he says the use of a video link was tested successfully so victims and witnesses could give evidence remotely to a court sitting nearly 50 miles away. Enabling more cases to be resolved online or away from traditional court buildings will free up courtrooms for the most complex and serious cases, he adds.
However, Davies responds sharply: ‘Technology is brilliant when everything works and runs smoothly, and it certainly has its place. But we need to be careful. [Sadler’s] response seems to suggest that court buildings are not required at all because we have technology.
‘HMCTS clearly has an agenda and, unfortunately, local justice doesn’t feature very highly. It probably has its reasons but it should not try to pretend that technology makes up for the loss of a court.’
The desire to save money should not override justice, agrees Atkinson. In Kent, HMCTS is trialling a remand court whereby defendants from Kent, Hertfordshire, Suffolk and Norfolk will have their remand hearings by video link in one central court which will rotate around the counties, starting in Medway, Kent.
‘So a defendant from Norwich will have his hearing determined by magistrates who have no idea of the area or any local knowledge and, as the lawyer, you won’t meet your client in person to build up a level of trust,’ he notes. ‘It is simply not good enough.’
Another area where court closures are having a significant impact is on staffing, which has been cut by 5,000 since 2010. Sadler says HMCTS is committed to working with staff ‘to identify positive outcomes for everyone who is displaced by organisational changes’.
The Public and Commercial Services (PCS) Union, which represents 8,000 HMCTS staff, says it has been told to expect a further 5,000 job cuts by 2020.
While no further strikes are currently planned, the union is considering ‘all options’ to defend staff. So far, there have not been any compulsory redundancies, says a PCS spokesman. But many staff are leaving because the job opportunities in the replacement courts are too far away. Others are off sick with work-related stress. ‘To say morale is pretty atrocious is probably an understatement,’ the spokesman adds, ‘as staff feel they are being ground down.’
While practitioners, magistrates and DDJs praise the dedication of staff, they also warn that pressures are leading to mistakes, with one commenting that the quality of work has ‘fallen off a cliff’.
When it comes to alternative venues, the PCS stresses these will need to be properly staffed, with health and safety, and security measures in place. A judicial security review looking at these issues is due to be completed soon.
Richardson, whose court in Yate, south Gloucestershire, is being closed and the work transferred to Bristol, acknowledges the need to be creative. ‘Magistrates are very flexible but we do need to be clear what the minimum requirements are; what sorts of cases should be heard in them; what infrastructure they will need,’ he says.
‘I am not committed to the idea that every speeding ticket needs to be sentenced in the auspices of a grand public building. But on the other hand I don’t think we should go as far as saying it doesn’t matter that the public can’t see what is going on.’
Sadler says the service is looking at alternative provision for eight courts where closure is contingent on this being in place. Any venues will be subject to a safety and security risk assessment by HMCTS. It will be up to a judge, he says, to decide whether a case is suitable and whether the hearing is open to the public.
Attention will now focus on what priorities new lord chancellor Liz Truss will bring to the role. Her predecessor Michael Gove announced the court closures in his maiden speech when he called for a more efficient and streamlined justice system.
For Richardson, his plea is: ‘Please tell us what the master plan is because magistrates, judges and staff need to know.’
Courts are closing and experienced magistrates are resigning because of greater distances to travel when there is the prospect that magistrates’ workload will expand to take on more work from the Crown courts.
‘I tell my members not to think they are uniquely being kept in the dark – members of every tier of the judiciary tell me they are similarly concerned,’ he says.
‘Morale has stayed remarkably resilient but there is a tipping point and we don’t want to find out where that is.’
Grania Langdon-Down is a freelance journalist