Constitution Committee report: Covid-19 and the courts

House of Lords Constitution Committee inquiry

Shortly after the Covid-19 pandemic began in March 2020, the House of Lords Constitution Committee launched an inquiry into the constitutional implications of the pandemic and the Government’s response to it. The inquiry looked at three areas:

• the ability of Parliament to hold the Government to account;
• scrutiny of emergency powers; and
• the operation of the courts in England and Wales.

During 2021, the committee published its findings in three reports—one report for each area—with recommendations to the Government. This article focuses on the report that considered the operation of the courts in England and Wales: Covid-19 and the Courts.

Covid-19 and the courts

Following the onset of the pandemic, the courts and tribunal system adapted in several ways, including suspending jury trials and increasing the use of technology to support remote hearings.

As part of its inquiry, the committee examined how the court system was operating during the pandemic, as well as the impact of virtual proceedings on access to justice and participation in proceedings. The committee said the pandemic had resulted in “widespread and unprecedented” changes to the court system that had added to several pre-existing challenges:

• Declining government funding: In the decade before the pandemic, government funding for Her Majesty’s Courts and Tribunals Service (HMCTS) fell, with 2019/20 funding 21% lower in real terms than in 2010/11.
• Delayed digital transformation: The HMCTS reform programme, a Ministry of Justice programme announced in March 2014 that aims to reduce demand for court buildings by streamlining court procedures and using online alternatives more, experienced delays. This meant that planned improvements to IT systems were not implemented by March 2020 when the pandemic began.
• HMCTS risk assessments: The potential impact of a pandemic on the courts and tribunal system had not previously been considered, the committee said. It argued that had the risks been identified earlier, the “urgent need” for additional court estates and new IT systems could have been recognised sooner.

The committee’s report is split into key themes, including: the move to remote justice; the backlog of cases; data deficiencies; and the future of remote justice.

Move to remote justice

Remote hearings (where participants partake in courtroom proceedings via video or audio technologies) were used during the pandemic to ensure that the justice system could continue to operate. The then Lord Chancellor, Robert Buckland, said in the committee’s oral evidence session on 22 July 2020 that four out of every five cases were being heard remotely at one stage of the pandemic.

The committee praised the court system for the speed at which it responded to the challenges of the pandemic. However, it noted that the rapid adoption of remote justice had had an uneven impact across courts, with certain courts (such as the senior and appellate courts) being better resourced and therefore more able to move to audio and video hearings than lower courts (such as those dealing with criminal and family cases). The committee noted that “outdated” court IT systems had also challenged the ability of certain courts to adjust to remote hearings quickly. It said that modernising and digitising courts and tribunals could improve access to the law and the timely delivery of justice.

On the issue of access to justice, the committee said that remote proceedings had the potential to enhance access to justice by increasing the number of hearings that could take place. However, it warned that remote hearings were not appropriate for all cases and certain court users such as those with lower levels of literacy.

Backlog of cases

Social distancing requirements impacted the delivery of courtroom-based hearings. As a result, the number of outstanding cases in courts and tribunals across England and Wales reached a record high. The committee said this had several impacts on the criminal justice system, including: defendants being held on remand in prison for longer; victims waiting longer for justice; and an increased chance of evidence becoming lost or forgotten.

The committee said that the backlog in criminal courts was “neither acceptable nor inevitable”. It argued that the pandemic had only exacerbated (rather than created) the backlog, with the backlog exceeding 430,000 cases in early March 2020 before the first lockdown. The committee also said the underinvestment in the criminal justice system had contributed to the problem, and warned that the delays to criminal trials were undermining the rule of law and access to justice, and risked damaging public confidence in the justice system.

Data deficiencies

For several years, the Government has spoken of its commitment to improving data collection in the courts system. However, an absence of quality data remains. During the inquiry, the committee heard evidence of an absence of data in certain areas, including data on the impact of remote hearings on those who lack access to technology or who have lower levels of literacy. During an oral evidence session on 22 July 2020, Chief Executive of HMCTS Susan Acland-Hood accepted that data quality challenges remained, and said the HMCTS reform programme would provide better data and allow better analysis of how the courts system was performing.

Future of remote justice

The committee found that remote hearings can improve the delivery of and access to justice. It said the Government should continue to deliver technological change to make effective use of remote hearings in appropriate cases. However, it noted that changes made in response to the pandemic should not be deemed irreversible if they risked undermining the justice system.

Committee recommendations

The committee concluded that the reduction in government funding in the decade before the pandemic had left courts vulnerable going into the pandemic. Additionally, delays to the HMCTS reform programme had seen planned improvements to court IT systems not implemented.

The committee made several recommendations in its Covid-19 and the Courts report, including for:

• the Government to set out a timetable within three months for implementing the HMCTS reform programme;
• the Ministry of Justice, the Home Office and police forces in England and Wales to increase the use of video remand hearings as a matter of priority;
• the Government to publish a statement setting out lessons it has learnt from the uneven adoption of new technologies during the pandemic, how these lessons will inform future development and how the Government will support courts to make effective use of new technologies;
• the Government to set out detailed plans for reducing the backlog of criminal, family and employment cases;
• HMCTS to collect data on remote hearings and corresponding case outcomes so that the effects of remote hearings can be analysed and published; and
• the Government to continue to invest in and develop technology for remote hearings, with monitoring to ensure that access to justice is not hindered.

Government’s response to the committee’s report

The Government responded to the committee’s report via a letter dated 28 May 2021. A summary of some of the Government’s responses is as follows:

• Timetable for implementing HMCTS reform programme: The Government said HMCTS remained committed to delivering the reform programme on time by the end of 2023. It also stated that HMCTS provides regular reports to the House of Commons Public Accounts Committee and the House of Commons Justice Committee on its progress in delivering reform, and would continue doing so.
• Increase of video remand hearings: The Government stated dialogue between the Government and police forces on progressing the use of video remand hearings was being maintained. It noted that the Police, Crime, Sentencing and Courts Bill would expand upon and make permanent other measures to facilitate remote proceedings across all jurisdictions.
• Statement on lessons learnt from use of remote hearings: Amongst other things, the Government said it would carry out a formal evaluation of remote hearings. This would analyse user-experience, hearings administration, and technology standards. The Government said it expected the evaluation to be completed by summer 2021, with findings published in an evaluation report in the autumn.
• Plans to reduce the case backlog: The Government said it had done several things to reduce the backlog, including exploring the role of additional courts (nightingale courts) to help maximise the number of sitting days. It also said the Police, Crime, Sentencing and Courts Bill would include provisions to support the ongoing use of audio and video technology and remote hearings.
• Data on remote hearings: The Government said data was being collected on remote hearings and remote hearing case outcomes as part of the ongoing analysis and continuous improvement of the court system.
• Development of technology for remote hearings: The HMCTS reform programme was delivering a bespoke video hearings solution called the ‘video hearings service’, the Government said. This would replicate a physical hearing and include features to support the judiciary and parties to the hearing. The Government said the service was not ready when the pandemic began, however it had since been implemented in tribunals and would be further implemented across jurisdictions as part of the reform programme.

Recent developments

Since the Government published its response to the committee’s report in May 2021, the Government has published its evaluation report on remote hearings during the Covid-19 pandemic. The Police, Crime, Sentencing and Courts Bill has also continued to progress through Parliament.

Evaluation report on remote hearings

The HMCTS published its ‘Evaluation of Remote Hearings During the Covid-19 Pandemic’ research report on 10 December 2021. This set out the experiences and attitudes towards remote hearings from public users, the judiciary and legal representatives, amongst others.

Key findings included public users attending hearings remotely being “slightly more likely to be satisfied with the overall experience of their hearing than in-person users”. The report said the benefits of remote hearings included being more convenient for participants and reduced costs.

Legal representatives were also generally positive about the use of remote hearings, but there were mixed views about how they should be used in future. For judges, 51% of those surveyed thought that remote hearings were effective at creating an environment comparable to in-person hearings, however concerns were raised about their impact on well-being and increased workload.

The Government said it would use the findings in the evaluation report to further develop its services. However, it noted that the decision of whether to hold remote hearings would remain at the discretion of a judge who will decide if it is in the interests of justice.

Police, Crime, Sentencing and Courts Bill

The Police, Crime, Sentencing and Courts Bill—first introduced by the Government in the House of Commons on 9 March 2021—is a wide-ranging piece of legislation that would make significant several changes across the criminal justice system. Proposed changes include expanding the courts’ powers to use video and audio hearings across a wider range of proceedings.

The bill has completed its passage through both Houses but is yet to receive royal assent. More information on the bill can be found in the House of Lords Library’s briefing: Police, Crime, Sentencing and Courts Bill.

Measures to address the court backlog

On 9 March 2022, in a written response to a question on ‘courts: standards’, the Government said it had done several things to address the impact that the pandemic has had on courts and tribunals. This included extending 30 crown nightingale courtrooms and opening two new ‘super courtrooms’ in Manchester and Loughborough. It has also removed the limit on the number of days the crown court can sit this year.

The Government said that, following an increased roll-out of video technology, over 70 percent of all courtrooms had video conferencing hardware to run the cloud-based video platform (CVP), enabling up to 20,000 cases to be heard virtually each week. The CVP is a digital platform that allows proceedings to be held online via video.

The Government said these measures were already having the desired effect, with the backlog in the crown court being reduced from around 61,000 cases in June 2021 to around 58,400 cases at the end of December 2021. It also stated it would be investing £477m in the criminal justice system over the next three years as part of the spending review. It estimated that this would reduce the crown court backlog to around 53,000 by March 2025.

---

Cover image by EKATERINA BOLOVTSOVA from Pexels.