Court Reform Crime Programme? Chinny Reckon! (Part 2)

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Next: in part 2 of the exciting new drama Court Reform Crime Programme? Chinny Reckon!, we find out what plans the hapless HMCTS/MOJ blue sky thinkers have for tipping a cool £270 million down the justice system drain! 

I’m hoping you’ve boiled the kettle again, as we’re about to return to the Public Accounts Committee session on the current Court Reform programme. Coming in the same week in which the House of Lords was debating the latest Courts & Tribunals (Functions of Staff) Bill – from which it appears the Great Plan is to hand over large swathes of judicial functions to MOJ salaried civil servants – you might think this is a topic which might bear some scrutiny.

However, discussions on these finer points of the separation of powers, and how the separation of powers is gradually being detached from the rule of law, are conspicuous by their absence. Instead, the Men (and Woman) from the Ministry are here to tell us all how marvellous the new Court Digital Landscape is going to be, after they’ve finished closing all those Actual Courts and getting rid of all those Actual People.

I’m guessing you want to know who they are, so here goes.

There’s a bloke called Richard Goodman, who rejoices in the title of Change Director & Reform Programme Director, apparently. (Does that mean he gets paid two salaries or something?) There is something of the manner of Mr La-Di-Dah Gunner Graham out of It Ain’t ‘Alf Hot, Mum about him, but without the glasses.

Then there’s Susan Acland-Hood, who is the CEO of HMCTS. She is well known to those of us lawyers who live on Twitter, chiefly for her admirable willingness to engage in dialogue with disgruntled members of the profession and court users (none of her predecessors have bothered). If there’s a toilet out of order in Bumfluff Magistrates’ Court, or a list officer out of order in any Crown Court you could care to mention, Susan will take the issues ‘on board’ in her cheery way.

And finally it’s Richard Heaton – Citizen Camembert, the Big Cheese, the Grand Fromage, the Permanent Secretary of the MOJ.

So what’s occurring on Planet Court Reform? Well, apparently there’s a New Bill all about courts and prisons going through the House of Lords at the moment (we know!), Heaton tells committee chair Meg Hillier (Labour, Hackney South & Shoreditch) when she asks, with obvious trepidation, about the progress, timetable and pace of the Reform Programme. When asked whether the Bill has had all the controversial bits taken out in an attempt to ease its passage, like some sort of judicial suppository, Heaton is already starting to appear nervous. It looks as if he can barely remember that it’s now apparently called the Courts & Tribunals (Judiciary & Functions of Staff) Bill.

Hillier is soon onto the vexed issue of the unredacted judicial survey about the effects of unrepresented defendants, revealed by the recent Buzzfeed story (see link here) – which busted the MOJ for apparently trying to hide a potentially damaging report containing some trenchant comments by judges about the problems caused by the increasing number of those appearing in court without a lawyer. Fortunately, according to Heaton this is not a “large volume issue” as there aren’t that many of them (CHINNY RECKON🤔!). Well, perhaps not at the moment, but once you’ve put all those lawyers out of business, you might have to re-visit that proposition, eh?

Acland-Hood is soon stepping in when talk turns to the online court ‘reforms’. I feel my eyes glazing over at the thought of increased numbers of citizens being able to collect their criminal records online, seemingly without any ‘advice stage’ input from, say, the duty solicitor or indeed anyone except perhaps Professor Google. On a question about access to justice issues as a result of the reforms, from Shabana Mahmood (Labour, Birmingham Ladywood), Acland-Hood earnestly propounds the proposition that (in the absence of express legislation on the topic), they will have to achieve some aims “sub-optimally”. And apparently, the translation of the “character of the sub-optimalness” means saving slightly less money than they were hoping. And you thought it was about access to justice? (CHINNY RECKON🤔!)

Perhaps unsurprisingly, Mahmood then lobs the bombshell: the programme is a third of the way in, and already a third of the way behind where it’s supposed to be! Why are we in this position?

There follows an elongated and earnest exposition about “milestones” and “partial measures” and the revelation that one of the milestones was meant to be about recruiting a certain number of staff to “help with our performance measures”. Eh? When you haven’t even got enough staff to answer the phone at any of the courts that are still open, and are only just opening emails from 2017?

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Apparently one milestone might be bigger than another milestone, and the position of the milestones might have already shifted, and the milestones have gone from a four-year movement to a six-year movement (or something) – are you with me so far? Does this explain, asks Mahmood, why you’re only 62% of the way you should have been in order to hit your targets for stage 1 of the project, let alone getting any further? How can the HMCTS give the Committee any confidence that at the end of the six-year programme, 100% of this programme is actually going to be delivered? (You can almost feel the Committee’s collective CHINNY RECKON🤔.)

Acland-Hood answers this in the manner of the girls’ school hockey captain telling the PE teacher why the Upper Sixth team were soundly thrashed in a grudge match with the local comprehensive. This doesn’t wash with Mahmood, who admits that nothing she’s hearing is reducing her concerns about the scheme’s delivery. Are there any parts of the programme about which Acland-Hood has concerns?

Surprise surprise, first up is the Common Platform! This apparently “has been running slower than we wanted for some time”. However, although this “continues to be a challenging programme” (obviously), “we need to increase our pace further”. What?! You want more “velocity” on the cock-ups? The look on Mahmood’s face says it better than I could: check her facial expression at 15:31:35 on the video (🤔).

A short time later there’s the first mention of the much derided ‘flexible operating hours’ scheme, on which HMCTS seem to have gone quiet of late. Probably because the reaction from the barristers, solicitors and court staff who would have to work the scheme was one of almost universal hostility. But that soon gets swept aside, as we’re back to the Common Platform again.

Only apparently, it’s not called Common Platform any more! It’s now the Crime Programme. Call a turd by another name, it’s still a turd. And fear not, there’s “enormous enthusiasm across Government for really agile delivery”. It’s probably not just me who thinks that the current Government’s idea of “really agile delivery” is basically not to provide any delivery at all, to starve out the delivery and then outsource the delivery to private equity, then have to step in and pay double when the private equity delivery goes tits up. Oh, and agility has milestones as well. God help us!

You will obviously also be pleased to hear, though, that changes have been made to the “strategic pipeline” and we’ve now got “rainbow teams” or something. Mahmood is on this. How has this affected the costs? And where are the police and the CPS in all of this, bearing in mind they’re the main parties who have to make this work? You just catch Heaton’s nervous glance at the edge of the shot.

When Acland-Hood laughably tries to suggest that all is rosy between the main delivery partners and, e.g., the defence community (where are they?), Mahmood moves on to the relevant National Audit Office report, which paints quite a different picture. Do the police and CPS have the capacity to match the delivery expectations, Mahmood asks, pointedly suggesting that this only requires a short answer…

The answer is apparently yes, though I’m wondering if anyone has told the CPS (20% plus staff cuts since 2010) or the police (also 20% manpower cuts since 2010).

Goodman then cuts in with some actual numbers about how many cases have gone through the Common Platform end to end: a few dozen so far! Heroic! I’m afraid after this point, we enter the realms of indicators, interventions and other business gobbledygook. What about Actual Access to Justice for Actual People in all this?

Fortunately, Mahmood is back in with some specific questions about court closures, after the earlier evidence. What do we learn? Well, in a nutshell:

(i) there is no statistical basis for suggesting that court closures have caused an increase in people failing to attend for hearings because they can’t get to court (CHINNY RECKON🤔!);

(ii) the number of people being charged by postal requisition rather than at the police station probably has caused a spike in this (you don’t say…);

(iii) changes on this scale to a justice system have never been attempted anywhere else in the world (CHINNY WOBBLE 😱 – this is terrifying);

(iv) the project currently has an ‘amber’ risk warning attached to it and, says Chris Evans (Labour, Islwyn) is also facing a funding shortfall of £61million according to the NAO, which HMCTS are expecting the Treasury to fill with the ‘agreed under-spends’ from previous years (CHINNY RECKON 🤔 – the Treasury won’t even pay to keep the toilets and lifts in our court buildings running!) or in the next spending round;

(v) in answer to the last, Heaton is “confident we will get the funding if we’re doing well” (CHINNY RECKON! 🤔) – but hold on, haven’t we just spent the last hour hearing about how NOT VERY WELL this project is doing?

When Hillier asks whether Heaton can point her to one small corner of the MOJ which is “steady running” and not currently undergoing massive changes, Heaton, mouth flapping open, can’t think of one. Evans also expresses the concern that if one part of this monolith goes wrong, this could impact the whole department, but don’t worry – Heaton confidently suggests that it won’t (CHINNY RECKON! 🤔).

Evans is also sceptical about the plainly “ambitious” expectation that 70% of HMCTS users will be going online, and cocks an eyebrow at the unsatisfactory response to his proposition that users of the justice system can’t be compared to general Government department online users (e.g., HMRC), as people generally don’t engage with the justice system voluntarily or more than once or twice. Have the HMCTS squad even thought about that? (CHINNY RECKON 🤔)

Meanwhile, Acland-Hood has no real answer to the question from Gillian Keegan (Conservative, Chichester) about what is an unreasonable travel time to court for a hearing, except to suggest that people can appear on video link (CHINNY RECKON 🤔 that one, based on bitter experience of court tech!).

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The Senior Judiciary tell us we must all love the Digital Revolution…

One of the most important points is made towards the end of the session by Anne-Marie Morris (Conservative, Newton Abbot). There’s been a lot of talk about processes and outcomes and people appearing on videos from all over and such, she says, but very little about people. Where do Actual People fit in? “There is a real concern that this system will not actually give us something which is fair. Can you tell me how you believe you’re going to measure how we get real justice out of this?”

Heaton cuts across Acland-Hood here, as he jumps in to point out that one of the main architects of this system has been the senior judiciary. CHINNY RECKON?! 🤔Seeing how some of them dealt with the recent barristers’ industrial action, that doesn’t give me a great deal of confidence. Acland-Hood tries to placate Morris with talk of an academic study from the University of Western Australia which apparently suggests that cases where one or more parties appear on video link don’t adversely affect considerations of witness credibility, for example, but it’s all rather nebulous and boils down to “well, we have quite a few individuals appearing on video link already”. Most of them not by choice of either or both parties, I’ll wager, more likely because the court unilaterally decided it.

And how, queries Morris, are individuals going get hold of legal advice if they’re going to be expected to plead online? Apparently, it’s all about Susan’s Signposting, though the practicalities of this again don’t seem to be forthcoming. Goodman starts banging on about an experiment they’re running in Medway (anyone come across this?), where apparently at the police station stage there is going to be access to digital online legal aid applications and other advice pamphlets online.

What, in the police station?

Slight pause. “But how are they going to access this?” demands Hillier. “Are they still going to have access to their phones there?”

The wide-eyed stare of Goodman suggests that HMCTS’s Three Musketeers hadn’t thought of that one. Give me strength.

“But there’s work happening on video justice in Medway!” he chirps. FFS.

What’s going to happen if the digital system breaks down, Morris wonders? Apparently that’s not going to be a problem for Big Suze’s department as we already do a great deal online. Yes, and we already have a great many system failings/dropouts/glitches now, so one can only guess how many more of those we’ll have to endure with a system wide rollout.

And in case you were worried about how this is going to roll out across the whole criminal justice system from top to bottom, well, don’t be. Because happily the whole kit ‘n’ caboodle has been thoroughly consulted on a few years ago on the “least serious” criminal offences. After all, what’s good for offences of fishing with an unlicensed rod is going to be good enough for dealing with a GBH, isn’t it? Morris looks thoroughly sceptical as Acland-Hood tries to persuade her of stuff like how marvellous it will be for people to be pleading guilty online willy-nilly.

“Just tell me,” she spits, “what the three of you think the top three risks are.” No surprise that the Crime Programme appears to come out as the top risk overall. We could have told them that without them having to spend two hours on Parliament TV.

If you ask me (and a few people have), the top risk appears to have been very neatly encapsulated in last week’s Law Gazette (see link here), where it is revealed that the NAO has identified a massive £171million spending gap in HMCTS’s plans, at a time when the Treasury have apparently been told that there is no extra money for any departments other than the Health Department, who funnily enough have just been promised £25billion!

Somehow, the numbers don’t add up, no matter how much HMCTS’s triumvirate try to persuade us otherwise. I give this whole thing a big CHINNY RECKON 🤔. Which is about the most polite gesture I can proffer.

Main pic by Wildy

 

 

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Court Reform Crime Programme? Chinny Reckon! (Part 1)

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It might be just a Lincolnshire thing.

It started when I was at school. Whenever someone was telling a massive tall story in the playground, there would be a gathering of classmates, an exaggerated stroke of the chin, elongated Jimmy Hill fashion, a raising of the eyebrow and a “Chinny reckon?” as the tale teller became the object of derision from all sides.

I periodically still use the phrase (and this article in the Metro – link here – shows I’m not the only child of the 70s to do so). I’m often tempted to pop it out when cross-examining. If the witness comes out with a particularly juicy line in bullshit, my fingers are itching to give that imaginary chin a stroke. Sadly, I have never yet managed to shoehorn it into a closing speech.

However, as I watched last week’s Public Accounts Committee meeting on HMCTS’s much derided Transforming Courts and Tribunals programme (see the Parliament TV link here), I was practically getting beard rash from all the frantic chin-stroking. And I don’t even have a beard.

Be warned: this is a packed programme and it’s going to be long. I’m going to have to split this blog into two parts as my attention span can’t cope. I’d put the kettle on if I were you. I am.

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Pic (ITV): Every day, the court system becomes a little more like an episode of Chorlton & The Wheelies

In case you’re not sure what this is all about, this is the Government/MOJ/HMCTS’s ambitious (some might say foolhardy, I couldn’t possibly comment) plan to ‘reform and transform’ the courts and tribunals service by digitisation. To wit, chucking well over £1billion at tech for the system and hoping that something sticks across its “50 distinct projects” (see the link to the latest update on parts of the programme here) while getting rid of as many Actual People as possible from it. When a Government agency admits that a programme on which it has staked its reputation is “ambitious”, it’s usually time to posit a CHINNY RECKON 🤔.

Now, the criminal courts are my natural habitat, so obviously I looked at the Great Plan for the parts relevant to this. These encompass Online Plea and Allocation (translation: get as many ‘hearings’ to be conducted outside a court room as possible, so we can close a lot more buildings), Case Progression Project (translation: get as many ‘hearings’ to be conducted outside a court room as possible, so we can close a lot more buildings), Court Hearings Project (translation: get as many ‘hearings’ to be conducted outside a court room as possible, so we can close a lot more buildings), Video Remand Hearings (translation: get as many ‘hearings’ to be conducted on video link as possible, so we can close a lot more buildings) and Youth Project (translation: see if we can devise a way of diverting as many cases outside a court room as possible, so we can close a lot more buildings).

All of these lofty aims are, apparently, to be underpinned by the Common Platform. This rather Cromwellian sounding ‘digital infrastructure’ requires an entire blog of its own (which I will do when I can afford the time), but its significant feature appears to be the apparent designing out of lawyers from the system.

Unfortunately, all hasn’t been going according to plan at Chateau HMCTS. As early as last year, specialist tech mag The Register were reporting (see here) that hundreds of millions of pounds – perhaps as much as £270million – had effectively been pissed up a wall on the Common Platform project. In particular, the Common Platform was meant to be finished next year, but I give the idea of that a great big old CHINNY RECKON 🤔, since by the time of The Register’s report it seemed that only one key element from the entire behemoth had been completed – some sort of digital diary for magistrates. Which is handy.

And as we discovered this week, the Government are attempting to shovel some of this shit up into the Courts & Tribunals (Functions of Staff) Bill, which as the Law Gazette reported here, which is currently bumping its way through the House of Lords towards the committee stage. Perhaps the MOJ are hoping we might not notice how this will affect, well, minor stuff like the separation of powers and the rule of law, but it’s probably not a coincidence that they are shoving a little bit of the proposed reforms in here, another bit of them in the next Bill, etc. Because as the Bar Council have already observed, drip feeding the ‘reforms’ into a succession of Bills makes it considerably more difficult to actually work out what they mean and how they will affect public justice.

The issue of most concern in this version of the Bill is that it provides for court staff to carry out judicial functions, including in the Crown Court. Yes, you read that right. Judicial functions. So judges – who have to swear an oath of independence from the Lord Chancellor, and therefore from Government – will be handing over “judicial functions” to staff members who are directly employed by the Government and who swear no such oath of independence but will be doing what their line manager (also directly employed by Government) tells them to. According to Lord Keen, introducing the Bill’s second reading in the House of Lords last Wednesday (see the Hansard link here), these staff will of course only be able to do any of the things currently reserved for judges once authorised by the Lord Chief Justice or his nominee, so that’s all right then.

It can’t of course be a coincidence that it’s the senior judiciary who are enthusiastically participating in this wholesale dumbing down of the system, just as they have embraced the dismantling of the justice system disguised as ‘digital reform’ with all the relish of a small child being given a 99 with two flakes.

The Bill is noticeably silent on how many such staff will be needed to take over these “judicial functions” (bit tricky when we know that HMCTS has already jettisoned 6,000 staff over the recent times, along with all those court closures). What level of qualification these staff will be required to have to exercise these functions, or indeed how far these judicial functions will stretch? Altering the time of a pre-booked hearing? Taking a guilty plea? Passing sentence? Hearing a short trial? Believe me, once mission creep gets started it won’t be long before some bright spark at the MOJ decides we don’t need any qualified judges at all. Well done, the senior judiciary!

I noted with no surprise that Lord Thomas (yes, that one – the last Lord Chief Justice, who was widely considered not to be any great friend of those in criminal practice) brushed aside the concerns raised by other Lords during the debate and stated: “I therefore hope that the Bill can be subject to realistic scrutiny. This is a small part of what is essential. It is important to remind the House that there is no plan B for the modernisation of the system.”

No plan B. He ain’t kidding. HMCTS and the MOJ simply have to get this whole programme rammed through because they’ve already wasted spent so much money on it, instead of spending that cash on maintaining the system we’ve already got and actually making sure it worked… This means they can’t afford too much advance scrutiny or active public consultation. So, what will the PAC make of all this?

The PAC Committee Chair Meg Hillier (Labour, Hackney South & Shoreditch) introduces the session by saying that the ‘reform’ programme “will cost £1.2billion at the moment, though we are not sure how estimates will go in the future, which is one of the issues we will be looking into”. So let’s get this right: the MOJ and HMCTS have embarked on this scheme, making “changes on a scale never seen before in our courts” as Hillier points out, it’s costing almost as much as the entire annual MOJ budget, and no one is sure if these figures are going to work?

Isn’t it some highly paid civil servant’s job to keep this little lot on track? Because, as Hillier says, the consequences if this goes badly wrong will be severe. I can’t wait to hear how the Men (and Women) from the Ministry explain this one.

But first we have evidence from real people who do real work at the real coalface, in particular the indefatigable Penelope Gibbs from the charity Transform Justice. In a few pithy sentences, Gibbs lays bare the problems of this scheme: while the idea is supposedly to streamline the court user experience, reduce delays and make justice easier to access through digitisation, the risks HMCTS are taking mean that we could end up with none of the above.

Those in charge of this wheeze are attempting to ram the programme through at, as Gibbs says, the speed of an express train. With, it appears, no brakes, as actual evidence of whether the proposed changes which are being railroaded through are really going to ever be able to deliver what is promised seems sorely lacking.

Not unreasonably, Gibbs suggests that there ought to be a pause while assessments on progress thus far are undertaken, like some openly advertised research programme – dealing with the impact on outcomes from current use of video link hearings in criminal cases, for example. Seems obvious, really, but apparently there’s no provision for any such academic research thus far.

The other speakers – Jo Edwards from the family law reform group Resolution, and the Law Society’s Richard Miller – also express concerns about the way this reckless project seems to be getting thrown together.

Not surprisingly, the closure of such a huge number of court buildings is exercising all of these experts. Edwards gives some eye-opening figures for the percentage increase in the number of applications to the family courts at a time when “huge swathes” of courts are being closed. This obviously means that access to justice is already being impeded. The great ‘reform’ project can only make this worse, especially (but not exclusively) for anyone who can’t readily access the internet. And that’s without all the complicating factors of the reductions in access to legal aid. How are people with limited access to public transport expected to be able to get to court and back in a day, let alone fit in a hearing, when their nearest court might now be 80 miles away? (CHINNY RECKON🤔!)

Miller puts another point bluntly: the Law Society are not yet satisfied that video links are a suitable alternative to doing business by seeing people face to face. There is no substitute for a lawyer, or jurors, being able to see the whites of a client’s or a witness’s eyes and be able to assess what they say and how they say it. Any criminal lawyer worth their salt will tell you of the importance of checking out body language, which is almost impossible to do when all you can see is a disembodied head floating around on a sub-standard quality TV screen.

The position with digitisation of cases is particularly acute for criminal work, where as Gibbs asserts, even a conviction for the most minor of offences will result in a criminal record which is with you throughout your life. What if you don’t understand what you’re signing up for, when you’re logging on to plead guilty to something which is going to be marked on your file for ever after? What if you don’t understand that you might have a defence? At what point on the digital court conveyor belt are you going to be able to get legal advice? And from whom?

Other problems are highlighted about what is lost if face-to-face hearings no longer take place in any case, which appears to be HMCTS’s real aim. It won’t be helping, of course, that apparently HMCTS has gone from 16,000 down to 10,000 staff in recent years, which might help explain why you can’t get anyone to answer the phone at a court these days, still less get your case listed for trial within a year.

On that latter point, Miller points out that there are problems with HMCTS’s calculations on court closures being based on court utilisation times. It’s all very well saying that a particular court building is only being used for 50% of the time – a frequent excuse for considering a court closure – but (CHINNY RECKON🤔!) if the court is only being used for 50% of the time because the MOJ will only pay for a judge to be sitting for 50% of the time, that’s rather likely to skew the figures showing that this particular court building is only being used 50% of the time, isn’t it? They must think we’re a bunch of mugs!

There are also excellent points made about the increased distances which witnesses and defendants are having to travel to actually get to court after all the recent closures leading to an entirely predictable increase in the number of warrants having to be issued for defendants who fail to attend (which of course leads to increased costs to the police who have to try to arrest the errant defendants on said warrants), or witnesses failing to turn up for trials… as if we didn’t all see this coming. And that’s without all the millions which were recently wasted on upgrading work at Camberwell Green and Cambridge Magistrates’ Courts, for example, where it seems that no sooner had the paint dried than HMCTS were announcing their closures! FFS.

With this surfeit of common sense being talked in the room, the MPs are starting to look worried. It’ll be interesting to see what the HMCTS cohort come up with. Will they be re-hashing some old MOJ press release – like the one which says we have the most generous legal aid system in the world (CHINNY RECKON🤔!), or that other one which says criminal barristers were VERY HAPPY with the structure of their new fee scheme since it was invented by them (CHINNY RECKON🤔!) – or lapse into buzzword bingo mode? Are we actually going to learn anything from the Three Wise Monkeys?

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Coming next: the hapless HMCTS/MOJ cohort get a bit of a mullering from a semi-circle of disgruntled MPs! Don’t miss Part 2 of Court Reform Crime Programme? Chinny Reckon! 

Main pic by Wildy