Covid hit our over-stretched courts hard: the current system can not become the new normal
Whilst there are opportunities for new ways of working, there are also difficulties for some cases and some litigants which could affect the delivery of justice.
“The justice system is fundamental to the relationship between the state and its citizens. It is the source of redress and of punishment. Its quality must not be compromised even when major challenges threaten its usual modes of operation.”
These are the opening words of the report by the Constitution Committee of the House of Lords, Covid and the Courts, and we conclude that whilst there are opportunities for new ways of working, there are also difficulties for some cases and some litigants which could affect the delivery of justice.
The pandemic was inevitably a real challenge, but our justice system was ill-prepared to deal with it
The report acknowledges the very significant effort made by many working in courts and tribunals to maintain a functioning system of justice.
The pandemic was inevitably a real challenge, but our justice system was ill-prepared to deal with it. Courts were already facing significant long-term problems before Covid. In the previous decade government funding had fallen by more than 20 per cent in real terms. Legal aid budgets had been slashed by 40 per cent. Many court buildings were in a poor state and others had been closed. Sitting days had been reduced and fewer staff were employed by Her Majesty’s Court and Tribunals Service. The backlog of cases in criminal courts was more than 400,000.
Moreover, the programme of reform intended to modernise court technology and processes was well behind schedule.
In short, the system of justice was not in a robust condition.
Staff moved quickly to try to keep some of the show on the road. The adoption of remote technology has helped relieve the pressure in certain types of cases. Senior courts and commercial cases appear to have adapted relatively well.
However the lower courts, those dealing with the majority of cases and those litigants who are most vulnerable, have had a much more difficult time. One lawyer made us well-aware of the problem of advising a client with limited IT access during a remote hearing. Any court hearing can be intimidating but the added pressure of the lack of direct support can be overwhelming.
“Justice delayed is justice denied” may be a well-worn adage but the overall impact is that the backlog of cases in the crown court, unacceptably high before the pandemic, has now reached crisis levels. Victims and defendants can be waiting for several years for cases to be heard, with obvious consequences.
The backlog has also led to an increase in the number of people held on remand – more than 8,000 - innocent until proven guilty but facing a long wait for a trial. One worrying development we heard about was the withdrawal of police support for video remand hearings, a potentially very useful asset to the justice system.
The government has now decided to invest some additional funding and opened temporary “Nightingale” courtrooms. This is welcome but not enough. At the current rate it will take years to reduce the backlog to where it was pre-pandemic, and that was far too high.
But it is not just investment that is needed. The difficulties faced by the justice system during the pandemic have been exacerbated by the lack of data across the court system. We need more accurate information about how the system is working with remote hearings and, in particular, how this is impacting on vulnerable court users and whether remote hearings are having any impact on case outcomes.
The pandemic has shown that remote court access has the potential to enhance access to justice. However there is a significant difference in the experience of professional and lay users. The changes introduced work well for some but not for all and must not be regarded as a “new norm” for all.
Baroness Taylor is a Labour member of the House of Lords and chair of the Lords Constitution Committee.