Decade of decay

Government ministers are fond of boasting about the ‘world-class justice system’ in England and Wales, but the reality is that many of the courts delivering it are anything but global exemplars.

Justice secretary Alex Chalk KC MP has at least broken with his predecessors by acknowledging the problem. ‘I believe very strongly that we must invest in the infrastructure of the courts estate,’ Chalk told a Mansion House audience on 16 July. ‘The physical condition of the buildings that discharge justice matters. It is difficult to uphold the dignity and authority of the law, important by the way to promote the small matter of compliance with court orders, when there is a bucket catching drips in the corner of the room.’

That is a start, but there is a huge amount to do if he wants the buckets gone. The Supreme Court, a 2009 renovation of the Middlesex Guildhall building; and The Rolls Building, which houses the commercial court and which was completed in 2011; stand virtually alone in the courts estate as well-maintained assets.

Buckets collecting rainwater can even be seen at the flagship Royal Courts of Justice on London’s Strand, home to the High Court and Court of Appeal. Many magistrates’, county and Crown courts are in a state of disrepair, with leaking roofs and broken lifts, lavatories and boilers.

Magistrates’ courts, which deal with more than 90% of criminal cases, are in such a poor state that many are largely inaccessible. This threatens to undermine efficiency and access to justice, recent research confirmed.  

'It is difficult to uphold the dignity and authority of the law when there is a bucket catching drips in the corne of the room'

Alex Chalk KC MP, lord chancellor

A survey by the Magistrates’ Association of 57 court buildings – more than a third of all magistrates’ courts – found that 75% were not fully accessible to the public or magistrates and seven were entirely inaccessible for disabled magistrates.

Almost two-thirds (63%) were found to be in need of improvement due to accessibility failings, such as a lack of wheelchair access throughout the building, an absence of accessible toilets, a lack of functioning hearing loops in courtrooms, and poor or no signage in the building.

Accessibility failings and delays in repairing vital facilities like lifts meant that in nearly a third of courts surveyed (30%), magistrates with disabilities had faced restrictions in sitting in certain courtrooms or even entire buildings, preventing them from undertaking certain types of work.

These restrictions, said the report, adversely affect court capacity and undermine the government’s efforts to improve diversity and inclusion in the magistracy.

The survey, which comes amid concern about delays and backlogs in the courts, highlights that 305 sitting days were lost in the magistrates’ courts due to planned and unplanned maintenance in 2022. It further warns that the failure to maintain accessibility or accommodate disabled magistrates threatens to damage morale and wellbeing, and has led to resignations at a time when the government is looking to recruit more magistrates.

The report focuses on access for disabled magistrates, but the association emphasises the need for universal accessibility in court buildings, given the high likelihood that everyone will experience transient or permanent disability, or have access needs, at some stage in their lives.

It recommends that the Ministry of Justice and His Majesty’s Courts & Tribunals Service (HMCTS) invest in the courts estate, identify and be transparent about current issues, embed accessibility into policy and practice, guarantee accessibility and communicate better with disabled magistrates.

Tom Franklin, chief executive of the Magistrates’ Association, stresses that anything preventing magistrates from performing their role must be rectified to ensure that timely justice is delivered. There were 340,126 outstanding cases in the magistrates’ courts alone at the end of March. The result of dilapidation and poor repair is, he adds, ‘a justice system that is not equally accessible to all’.

The association’s report mirrors the results of a survey of 500 solicitors by the Law Society, published in December, in which 28% of respondents said the courts were ‘not at all fit’ for purpose and in need of repair.

‘We were told of leaking toilets, broken heating, sewage, mould and asbestos, and of air-conditioning units falling from the ceiling,’ says Lubna Shuja, president of the Society.

‘A quarter of disabled court users responding to our survey said they did not feel physically secure or safe from harm when attending court,’ adds Shuja, who is concerned about the impact this ‘shambolic’ physical state has on delays, the wellbeing of those working in such environments and the recruitment of judges, court staff and lawyers.

Since 2010, more than half of all magistrates’ courts in England and Wales have been shut, cutting their number from 323 to just over 150. Several Crown and county courts have also closed. Officials attributed this to a fall in crime rates, which meant that some of the affected courts were operating at less than 40% capacity.

Many were sold off, with some of the more handsome buildings turned into boutique hotels or trendy bars, in part to help fund the £1.2bn court modernisation programme to introduce new technology and new working practices to increase efficiency.

With rather grating irony, Blackfriars Crown Court, which was closed down in December 2019, was even hired out as a set to film the court scenes in a Netflix series.

Fadi Daoud, president of the London Criminal Courts Solicitors’ Association, accepts that court closures were needed, but says the programme went too far and, in London, has created huge pressure at remaining courts, such as Westminster Magistrates’ Court.

The closures, which mean that defendants, complainants, witnesses, lawyers, magistrates and other attendees sometimes have to travel more than 50 miles, ‘fly in the face of local justice’, Daoud says. In some cases, they make it impossible for defendants and witnesses to get to court at all, especially in remote, rural areas.

‘As lawyers, we’re wasting valuable time constantly [being] on the road between the remaining magistrates’ courts and police stations and prisons. It’s not what we went into law for,’ he adds.

Local justice – the principle that alleged offences or disputes are dealt with by the communities in which they occurred – has been the ‘cornerstone’ of our legal system for centuries, argues Franklin.

Public spending watchdogs are also taking an interest. A recent report from the Commons public accounts committee expressed concern about the progress and cost of the court reform programme. Seven years in – more than double the original timescale and with ‘multiple delays’ and resets – MPs noted that the courts service was once again behind on delivery and had to revise its plans.

HMCTS extended its timetable for a third time in March, and now plans to deliver most reforms by March 2024, three months later than planned. Full delivery of its much-criticised digital case management system, Common Platform, is expected in March 2025, over a year later than planned.

When the committee last examined the programme in 2019, HMCTS had already extended the time it expected to take to deliver the reforms twice, from four years to six years and then to seven years. It warned then that the timetable was ‘over-optimistic’ and highlighted that despite having just £120m left of its total £1.2bn budget, the courts service had only completed 24 of 44 reform projects (55%).

‘HMCTS asserts that it is confident it can deliver the remainder of the programme within the new timetable, but it gave us the same assurances in 2018, 2019 and 2021,’ the report pointedly notes, adding that the scope of the reforms has been reduced.

The committee attributed the ‘long history of resets, revisions and delays’ to the courts service’s ‘consistent underestimation of the scale and complexity of its reforms’.

It added that ‘multiple technical and design problems’ throughout the roll-out of the Common Platform created extra problems for court staff working hard to deal with large case backlogs worsened by the pandemic, and criticised the failure to engage with court users, which adds to the burden on pressured staff.

The report echoed criticism from the National Audit Office in February, which voiced concern that the reform programme was over budget by 10%, behind schedule and had saved less than envisaged. The report also said question marks remained over whether the programme would deliver the intended efficiencies.

Dame Meg Hillier, chair of the PAC, says that while the courts were ‘crying out’ for critical reform, ‘frustratingly, HMCTS’ attempts appear in some cases to be actively hindering its own staff’s ability to carry out their jobs’.

In particular, says Hillier, ‘the roll-out of the Common Platform digital system was a blow upon a bruise for pressured court users’.

The courts service, she adds, has ‘burnt through almost its entire budget for a programme of reform only a little over halfway complete. The government told us that the complexity of managing some of these reforms was like “redesigning the jet engine while it is in flight”. It must explain how it intends to land the plane.’

As well as poor conditions contributing to the low morale of those working in neglected buildings, there is concern over the harm to the perception of the standard of justice the public receives.

‘Dilapidated buildings send a message to all court users that the delivery of justice is simply not a priority,’ says Nick Vineall KC, chair of the Bar Council.

In June, Kirsty Brimelow KC, chair of the Criminal Bar Association, told the Lords constitution committee: ‘Crumbling courts, delays and the general ongoing crisis in the criminal courts shake confidence in the justice system as a whole.’

Coming to the end of the concordat process – or the settlement between the government and the judiciary for funding for the current financial year – during which he had ‘engaged in great detail’ with the lord chancellor and prime minister, Burnett said he had ‘continuing concerns’ over funding.

But Burnett felt ‘reasonably confident’ that the position for this financial year would be much better than the last, while stressing that it was ‘hopeless to deal with this on a year-by-year basis, because so much of the big capital expenditure will straddle different years’.

He told peers that it ‘is no secret that the modernisation programme’ had taken much ‘longer than was expected’ and had to deal with ‘much greater’ technical difficulties than HMCTS had envisaged.

Burnett suggested this was because the timetable ‘was being driven entirely by what were thought to be end dates for funding’.

In addition, he said the Ministry of Justice’s delay in agreeing to the latest ‘reset’ timetable meant that six months had been lost, causing additional problems.

Burnett hoped that the extra time would allow HMCTS to get the technical side right, enable court staff to be properly ready, and ensure judges were trained appropriately and understood the products before they came along.

Lawyers working in the courts daily bear the brunt of the impact of the neglect and lack of investment.

On the condition of the courts, Daoud says: ‘A bucket under a urinal; broken lifts, including the disabled access for prisoners; failing aircon; water fountains which haven’t worked for months, sometimes years – the list goes on of evidence of the dilapidated, neglected state of our courts. You couldn’t make it up.’

The disrepair has caused ‘hundreds of lost days sitting’, he suggests, and court administrators are constantly struggling to react to critical infrastructure failures of lifts, air conditioning and heating systems.  

The state of disabled access for lawyers, the public and defendants ‘is nothing short of insulting’, says Daoud. Rather than speeding things up to deliver better justice, Daoud suggests the ‘complicated, clumsy and time-consuming’ Common Platform is ‘an added aggravation’.

Barely a day goes by where problems with Common Platform do not hold the courts up, he claims. While lawyers have developed ‘workarounds’ to ensure papers end up in the right place, he is concerned about the impact on the rising number of unrepresented defendants. They miss deadlines, sustain damage to their cases and ‘lose out on justice’.

Meanwhile, ‘the misguided mantra of the government and courts service seems to be “Keep calm and carry on”,’ says Daoud. He is calling for greater investment to secure better long-term pay and conditions for those working in the justice system.

Feedback from solicitors, says Shuja, is that the speed and number of changes being brought in all at once have been problematic.

While agreeing that technology can drive efficiency, she says ‘rolling out unfinished or untested software’ – as is happening with the Common Platform – increases delays and costs.

The Law Society, Bar Council and Criminal Bar Association have all urged the government to invest in improving the system.

‘[This] requires long-term planning and investment to reverse decades of decline,’ says Vineall, alongside a ‘culture shift’ at HMCTS that would lead to earlier and better engagement with those who will use the new systems.

An HMCTS spokesman says: ‘We want everyone to be able to access our courts, which is why we have invested over £185m in the two years to April 2023 to maintain our buildings and improve accessibility.’

He says the digital services introduced have been used over two million times and insists that the Common Platform is vital to modernisation, as it is replacing old systems that are ‘fragmented and unsustainable’.

And what is the government’s reaction to the public accounts committee’s  report? Ministers, the spokesman says, will consider its findings  and respond formally ‘in due course’.

 

Catherine Baksi is a freelance journalist