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

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3 thoughts on “Court Reform Crime Programme? Chinny Reckon! (Part 1)

  1. On a slightly different track there has been little comment on the MOJ`s intention to appoint a National Leadership Magistrate and some regional deputies or similar. This IMHO does really signify the beginning of the end of the independent magistrate presiding in court. My blog post of June 14th has details.

  2. The best thing MoJ/HMCTS/Judiciary could do is:
    1 get rid of PWC;
    2 get rid of Susskind;
    3 get solicitors and barristers and CILEx and probation and CAFCASS and Court/Tribunal staff and CPS staff and prison staff (ignore senior management) and find out what works, what doesnt work and try to agree real solutions to the real problems.

    I’ve been suggesting this for about 20 years and I figure one day someone will listen.

    What we need is evolution not revolution or “reform”.

    Also, such meetings will be free and therefore offer taxpayers real value for money whilst valuing the knowledge and experience of people who actually understand and undertake the various roles in the Justice systems.

  3. Pingback: Weekly Notes: legal news from ICLR — 23 July 2018 - ICLR

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