A report from member of the House of Lords has concluded that cuts to the justice system left the courts in ‘a vulnerable condition going into this period of crisis’. The House of Lords’ Constitution Committee argues that over a decade prior to the pandemic funding ‘fell significantly’, legal aid budgets were ‘radically reduced’ and court buildings were closed. ‘These pre-existing challenges exacerbated the devastating impact of the pandemic on courts and tribunals in England and Wales,’ it added.
The report raises concerns about the government’s apparent belief in the expansion of remote justice to assist the courts. The ‘sudden shift’ to remote hearings ‘stretched limited court resources’ and risked ‘excluding court users’. ‘The impact of virtual hearings across the justice system remains fundamentally unclear in a number of respects, as insufficient data is being collected and analysed by the ciuyrt service,’ the report noted.
Baroness Taylor, chair of the committee, praised professionals working in the courts who ensured due process was possible throughout the COVID-19 crisis. ‘There has been a monumental effort by all working in courts and tribunals to maintain a functioning justice system in recent months,’ she said. ‘We applaud the hard work of all those who have supported court users in these very difficult circumstances.’
Despite such efforts, Baroness Taylor noted that the huge cuts meant that our courts were ill-prepared for the sudden pandemic. ‘The courts system was not well prepared for disruption on the scale caused by the pandemic. Courts funding had fallen significantly in real terms over the preceding decade and a programme to modernise court technology was struggling to deliver the improvements needed,’ she said.
The report set out the context for a justice system already creaking at the start of the pandemic. The report said: ‘Government funding had fallen significantly (by 21% in real terms in less than a decade), legal aid budgets had been radically reduced (by nearly 40% in less than a decade), court buildings had been closed, sitting days had been reduced, and fewer staff were employed by HMCTS.’
One of the main results of these cuts has been an increased backlog of cases, described by the report as ‘unacceptably high’. Even pre-COVID, it has been not unusual for victims and defendants to wait years for their cases to be heard in court, meaning that when they are heard the quality of justice is likely to have deteriorated with the witnesses fading memories. Delays to trials lead to the Crown Prosecution Service having to make choices about which cases can and should proceed, resulting in fewer prosecutions and convictions.
As of March 23 2020, all jury trials were suspended – and a few days later, over half of all court and tribunal buildings closed. This has led to a huge increase in the number of people on remand. For example, as of December 2020, 8,000 men and women, and 130 children, were being held in custody awaiting their day in court.
The response was a move to remote justice, with many cases being dealt with on a Cloud Video Platform. This too, however, has not been without its issues. ‘The sudden shift to remote hearings has stretched limited court resources, created new barriers to communication between lawyers and their clients, and risks excluding court users,’ the report said. ‘Limited IT access, home distractions, and the more tiring nature of remote hearings all threaten to undermine effective participation.’
The Committee’s main recommendations:
- Increase the legal aid budget to tackle pandemic’s impact on access to justice;
- Set out a plan to address the backlog to reduce it to pre-pandemic levels, such as by opening temporary ‘Nightingale courtrooms’ to increase the court estate available, increase sitting days and increase the number of part-time and retired judges to sitting;
- Develop technology to support remote hearings; and
- Massively increase data collection to identify the impact of remote hearings on vulnerable court users, for example, and those involved non-professionally.