Corporate Crime analysis: The HM Courts and Tribunals Service (HMCTS) has been widely criticised for the delays and disorganisation of its courts and tribunals reform programme. Initially promised to modernise and digitise the court system, the programme has fallen behind schedule and encountered many digital failings, threatening to make justice ‘grind to a halt’ according to Chris Topping, director at Broudie Jackson Canter and immediate past president of the Liverpool Law Society. Topping discusses the findings of progress reports on the reforms and discusses the potential consequences of digital failings and court closures on the UK justice system.

What do ‘Court and Tribunal reforms’ and ‘Transforming Courts and Tribunals—progress review’ tell us about the current status of the court reform programme in the criminal courts?

The process of reforming the criminal court system has been ongoing for years. This is a Herculean task equivalent to cleaning out the Augean stables. There seems no end to it—it appears to be beyond anyone’s capabilities—and indeed reading the reports it is suggested that there is a lack of real progress being made.

Reform is a many stranded task, and to have attempted to tackle such a raft of issues in a time of austerity is brave at best and foolhardy at worst. The PAC report published on 4 November 2019 is startling and, if you are the Chief Executive of HMCTS, very uncomfortable reading.

There is stinging criticism of the court closure programme—in particular where 127 courts have closed since 2015—and yet there has been no evaluation of the impact this has had. Anyone who uses the system or is drawn into it can tell you of the startling effects that court closures would have on access to justice particularly for those already on the margins of society. Closing the local court is hardly likely to improve things and yet there are plans for more closures to follow.

The attitude of HMCTS appears to be that they provide information but do not have to listen nor respond to stakeholders and as PAC put it in their report:

‘HMCTS risks undermining trust in the reforms and ultimately in the fairness of the justice system.’

To an extent that trust has already gone, the reforms continue and PAC are driven to comment:

‘[M]any of the concerns we raised in our last report on the reform programme have not been addressed.’

The Justice Committee report makes even more eye-watering reading.

‘The HMCTS has not taken sufficient steps to address the needs of vulnerable users who lack adequate legal advice and support.’

In looking at the criminal courts there is particular concern about the unreliable video equipment and Wi-fi facilities throughout the estate. It is astonishing to read the evidence from the Legal Committee of HM Council of District Judges (Magistrates Courts) who say that the Wi-fi is ‘wholly inadequate’. This often leads to papers not being received and then the Crown Prosecution Service having to stop in the middle of cases because the Wi-fi has stopped working and the prosecutor can no longer access the papers.

The reports make it clear that the reform programme is in a state of complete chaos with little hope of immediate improvements.

Two key projects are video remand hearings and the rolling out of the ‘Common Platform’. Please explain what these entail and why they are necessary

Video Remand Hearings

The use of video links between courts and prisons has been in use for some time. This has the potential to save time and costs to the criminal justice system—indeed there appears to be evidence that as the system has been rolled out the desired results are being achieved. There are still issues about the reliability of the technology which will require much more investment and one would hope a uniform supply across the court estate. There are plans to extend the use of video within the criminal justice system still further. However, such an expansion needs to be handled very carefully as there is the real risk of injustice being done to those accused of crime if access to their legal team is restricted.

The Common Platform

The Common Platform Programme (CPP) is a key part of transforming the criminal justice system into one which is fit for the digital age. However, this is a government project involving computers and almost inevitably the promised brave new world is yet to emerge from the carnage. The whole reform of the criminal courts system was to be supported by the CPP with these bold claims for digital working

• enabling all participants in the criminal justice system to work from the same information to reduce duplication of effort
• introducing more consistent working practices
• allowing us to deal differently with things that don’t need to be in court

One of the aims was to replace ‘the existing HMCTS and CPS case management systems with a single system’. That has been abandoned once again raising the question as to whether hundreds of millions of pounds of taxpayers’ money was spent wisely. When launched in 2014, it was boldly asserted that the programme would be complete by March 2019 and here we are at the end of 2019…

It is abundantly clear that CPP is required to ensure that justice is done efficiently and effectively in the twenty first century. How can it be the case that computer systems operated by the Police, Courts and CPS are not compatible one with another? Until this nirvana is reached, digitisation of the criminal courts is little more than a pipe dream.

How is practice in the criminal courts evolving as a result of these reforms?

If you read the Committee reports they would rather suggest regression rather than evolution.

The theory of receiving documents digitally is all well and good but if the system crashes as seems to happen on a regular basis then justice grinds to a halt…

The good news is that there is now next to no paper being used in the Crown Court and so the environmental impacts are clear.

Where can more work be done?

There is plenty to be done but the HMCTS reform programme is clearly over ambitious and as the Public Accounts Committee concluded in July 2018 there is little confidence that they can deliver.

The National Audit Office report from May 2018 said that there was a real risk that ‘the full ambition of the change portfolio will prove to be undeliverable in the time available’ and so it is proving while individuals face an increasing challenge to be able to access the justice system they need.

There is no doubt more can be done but it may first be necessary for HMCTS to accept that things are out of control, to press pause and to properly evaluate what is to happen next.

What do you see as the next big horizon for digital transformation of the criminal justice system?

The challenge is clearly to make the infrastructure fit for purpose before new horizons can be considered.

There needs to be a massive investment to make sure that the video and Wi-fi systems are fit for purpose and if they are then there can clearly be a reduction in the current waste of resources both in terms of time and money.

What must always be borne in mind is that digital transformation should not be expanded to the extent where doing justice is put at risk.

The reading of the two reports is a salutary experience and the words of the Committees should be heeded before the criminal justice system descends any further into chaos.

In the words of Secret Barrister: Stories of the Law and How It’s Broken (Kindle Edition, 2018), ‘the law is broken’ and the Committees are clearly not convinced by the repair job currently being undertaken by HMCTS.