Just over six years ago, a taxpayer funded independent study of a pilot ‘virtual court’ concluded that: ‘A rollout based on the pilot’s performance and parameters is likely to cost more money than it saves. A break-even scenario may be achieved, but this is still likely to be a challenge.’
While the pilot, involving two courts where defendants were encouraged to appear by closed circuit TV link from the police station, succeeded in cutting the average time from charge to first hearing, the evaluation raised concerns about the knock-on consequences: ‘The impact of the pilot on judicial processes and outcomes is complex. The evidence points to a series of factors that may be regarded as giving cause for concern, but the frequency with which they occur is very difficult to judge.’
A government committed to evidence- based policymaking might be expected to take that evaluation on board when considering virtual courts, no doubt commissioning further research and achieving a consensus on the impacts before extending such processes nationally.
Instead, the Ministry of Justice will today propose to parliament that virtual hearings become the norm in swathes of court procedures. This is one of the IT-based courts reforms proposed in the Prisons and Courts Bill, published last month. Under the proposed law, almost any party to any criminal court hearing will be allowed to take part by telephone or video link. In an even more controversial proposal to replace physical justice with online justice, the bill proposes introducing ‘automatic online conviction and standard statutory penalty’ for certain summary-only criminal offences.
In a powerful critique of the bill’s criminal courts proposals, the charity Transform Justice accuses the government of embracing a technological panacea. A briefing paper published last week states that: ‘The criminal court proposals seem to have been introduced in haste, in many cases without research, evidence or informal or formal consultation with experts and stakeholders.’
While the object is to save money through the court reform programme, most of the proposed changes ‘have not been costed, and the impact on remand and sentences has not been modelled’.
Meanwhile, the move to online and virtual justice ‘threatens to significantly increase the number of unrepresented defendants, to further discriminate against vulnerable defendants, to inhibit the relationship between defence lawyers and their clients, and to make justice less open’.
Overall, it observes that the criminal justice system is complex and its fairness rests on parties understanding and participating in the process: ‘This is difficult to achieve even when everyone is in a courtroom. Fundamental principles of justice and human rights are risked if we take justice wholly or partially out of the courtroom.’
Transform Justice, set up in 2012 by former magistrate Penelope Gibbs, is only the latest critical friend of justice reform to suggest that the proposals are ill thought-through. The briefing stresses that the charity is not opposed to new technology as such. ‘No one would disagree that the courts need to be brought into the digital age,’ the briefing states. This would require files and information to be available in digital form, with innovations such as defendants and witnesses being sent emails and texts reminding them to come to court. ‘Many of these changes are already under way and the challenge is simply to get the IT to work properly and systems to talk,’ it states.
However, the new processes in the bill are far more radical – and based on what appears a deliberate policy of ignoring inconvenient facts. Transform Justice notes that several of the ideas in the bill were adopted from the Leveson review of efficiency in criminal proceedings, which two years ago reported a dearth of evidence to support the impact of the changes. ‘No major research or evidence gathering has been conducted since,’ Transform Justice notes, ‘and many of the proposals in the legislation go further than Lord Leveson’s recommendations’.
Virtual hearings are a good example. ‘There is very little evidence of the impact of virtual hearings on juries, judges, on defendants’ participation in hearings, nor on the outcomes of those hearings,’ the briefing states.
‘What evidence we have, whether from business or criminal justice, suggests the impact can be negative.’
The briefing questions the need for virtual hearings in the first place: ‘There is not and still won’t be (even after closures) a shortage of courtrooms. Many defendants and witnesses would prefer to appear in person than remotely.’
As for the government’s argument that virtual hearings are kinder on witnesses: ‘If the needs of witnesses were better met in court, they would be less stressed. Equally, we question the necessity of the police detaining so many low-level offenders, thus necessitating either a virtual hearing from police custody or an expensive trip in a secure van to the court.’
On the proposed system to allow people charged with non-imprisonable offences to plead guilty and accept a penalty online, the charity says: ‘Every conviction carries a criminal record. The risk of an online system is that those charged will not understand the full implications of pleading guilty.’
Other concerns include the cost of the system, which the briefing says has not been assessed; and its effect on open justice, where it says the proposals are ‘somewhat vague’.
‘The new proposals are an attempt to graft existing open justice principles on to new structures, but there has been no research and no consultation on them, so we have no means of gauging their impact,’ the briefing states.
The biggest concern is the apparent reluctance to throw the new ideas out for consultation – in defiance of best practice guidance for policymaking.
Transform Justice states that ‘no reason has been given for the lack of open policymaking in regard to many of these proposals’ and says that the government could have put the bill forward for pre-legislative scrutiny. ‘It has chosen not to do so.’
We have been here before. In the early 2000s, the Labour government increasingly turned to big IT projects to get it out of policy holes. The resulting failures ranged from lorry road pricing (abandoned) to identity cards (abolished by the incoming coalition government) to joined up electronic medical records (still a distant prospect).
The fear is that the Ministry of Justice is now embarking down a similar road.
The Prisons and Courts Bill – which also covers highly controversial measures relating to the penal system and personal injury compensation – begins its second reading in the House of Commons today. Critical friends of reform will be hoping that ministers are receptive to scrutiny.