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August 10, 2020
The Committee pays tribute to everyone in the justice system who has enabled the courts and tribunals in England and Wales to continue to function throughout the Covid-19 pandemic.
The Committee agrees with the Lord Chancellor and Secretary of State for Justice, Robert Buckland QC, that technology has enabled “justice to continue to operate”. However, the report notes that behind this narrative, there are important lessons for the justice system to learn from the crisis. It is “a matter of concern” that some of the most public-facing elements of the justice system — the magistrates’ courts, the Crown Court and the family courts — appear to have “fared the worst”. Recognition of the significant achievements of the justice system in responding to Covid-19 should not obscure the scale of the challenges facing the courts, the Committee says. The number of outstanding cases in the magistrates’ courts and the Crown Court is “a pressing concern”.
The report notes that the Government, the judiciary and HMCTS are working closely on a multi-pronged recovery plan that involves setting up temporary courts, extending court hours, exploring options for changing arrangements for jury trials and maximising the use of technology.
The Committee says that a further increase in sitting days could go some way to alleviate the situation. As for the use of technology, the Committee finds that the Judiciary and lawyers have largely been positive about the move to using video and audio channels. However, there is emerging evidence that remote hearings are less satisfactory for some lay participants (whether legally represented or acting as litigants in person, and witnesses) and vulnerable court users.
In addition, there is considerable concern over the quality of data being gathered by HMCTS. The Committee says that it is vital that as the operation of courts and tribunals change so rapidly, every effort be made to ensure effective public debate over the impact on access to justice.
The Committee recommends that HMCTS sets out how it intends to evaluate both the practical and qualitative effects of the changes carried out at pace in response to the Covid-19 pandemic. In particular, work must be done urgently to identify the effects of increased use of digital technology for the delivery of justice not only on the process and disposal of cases, but on the results obtained for those whose cases and hearings have taken place; their perception on the fairness of the proceedings, regardless of outcome; and the barriers to access and understanding that may have arisen for both participants in cases and the wider public, including the media.
The Committee warns, however, that changes introduced in response to an emergency should not be regarded as irreversible if they can be demonstrated to have impeded access to justice or resulted in less than optimal outcomes for those whom the justice system exists to serve. To read the report in full, click here.