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INSIGHT: U.K. Justice System Reform—Digital by Default and Justice for All?

June 27, 2019, 8:01 AM

In September 2016 HM Courts & Tribunal Service (HMCTS) announced a six-year reform program which they hoped would transform the U.K. justice system. The aim of the changes is to make the court process more clear-cut, accessible, and efficient.

The U.K. government pledged a massive $1.27 billion (£1 billion) toward the reforms, which should eventually save the taxpayer a significant amount—almost $336 million (£265 million) per year. The reforms will reduce HMCTS staff by 5,000 and reduce cases physically held in court rooms by 2.4 million per year.

Of the budget, more than $887 million (£700 million) will be invested to modernize the courts and tribunals, and out of that, about $342 million (£270 million) will be invested in the criminal justice system. It has been hailed as the most ambitious project of its kind ever to be undertaken.

The changes will reflect the increasingly technologically focused world we live in, and although the reforms span more than 50 projects, the key focus is digitization. The reforms will apply to all areas of the justice system, including employment, family, crime, and civil litigation.

But will the U.K. government achieve its goals within the time frame without weakening the safeguards for those using the system?
This article will focus on the criminal law reforms and where the impact of the reforms will have a significant impact.

Criminal Court Reforms

Each year the U.K. criminal justice systems deals with more than 2 million cases, and as a result of the sheer volume of cases, the traditional court system is overburdened and feeling the pressure. The courts systems is perceived to be outdated and require both modernizing and in need of simplification.

Therefore, according to HMCTS the objective of the criminal court reforms is to “give our judiciary clearer leadership over our criminal courts and invest in smarter, more streamlined processed to deliver better justice for all, including victims, witnesses and society.” Intertwined with this objective is a push to ensure that the Crown Courts, which deal with the most serious criminal offenses, become more efficient by ensuring listings are being adhered to and adjournments or delays are reduced to a minimum.

It is hoped that this will reduce the amount of ineffective trials so that all those using the system (including not just defendants but also victims and witnesses) will have more confidence in the system and their part in proceedings.

Common Platform

While prosecutorial agencies such as the Crown Prosecution Service (CPS)—the principal public prosecuting agency for conducting criminal prosecutions in England and Wales—and HM Revenue and Custons (HMRC) have individual case management systems, they still often exchange information in hard copy. However, the introduction of the so-called Common Platform will change this. It is a shared digital system between the police, Crown Prosecution Service, and HMCTS providing access to all material necessary to deal with a case.

The Common Platform will be accessible not only to professionals, but also eventually to defendants, victims, and witnesses. The ultimate aim is for the court system to become “digital by default” where preliminary hearings and straightforward cases concerning more minor offenses can be dealt with online.

Transparency

Although courts are open to the public, it is often a mystery to many as to how the court process works in practice. To increase the public confidence in the criminal justice system, there is an ongoing drive for transparency. Digitization aims to bring greater transparency, and with the creation of an online tool this should enable the performance of Crown Courts to be properly scrutinized, at least by those involved in the process.

Exploring ‘Problem Solving’ Courts

The British government has acknowledged that there are a number of defendants who are repeat offenders, and as a result have introduced so-called “problem solving” criminal courts. As part of the reform program, HMCTS will continue to explore the use of these courts, which will focus on tackling the underlying problems of an offender’s behavior, such as drug addiction or mental illness. This is something which has been tried and tested in the U.S. since 1989.

Supporting Vulnerable Victims and Witnesses

Currently, in certain cases, there are arrangements for some evidence to be prerecorded or provided in court behind a screen, but the reforms aim to increase the locations and type of cases where victims and witnesses can give evidence and allow vulnerable witnesses to prerecord their evidence.

A controversial pilot scheme was launched earlier in June in three Crown Courts in Kingston, Leeds, and Liverpool. This pilot will enable rape complainants to prerecord their cross-examination evidence in advance of the actual trial. Undoubtedly, these pilot schemes will be carefully scrutinized by defense lawyers who have expressed deep concerns about their client’s ability to have access to and test a witness’ evidence during the trial itself.

Online Plea and Allocation Project

One of the most innovative and potentially risky projects is the online plea and allocation project where decisions for allocation of cases can be taken outside of the court room and defendants can make a plea online before coming to court, without having consulted a lawyer or clerk from the court.

HMCTS say they will ensure that defendants are guided to access appropriate legal advice and provide digital support, however concerns have been raised by defense professionals as to how a defendant’s right to access legal advice will be safeguarded. Defense practitioners are particularly concerned with the impact this will have on vulnerable defendants, such as those with mental health issues.

Delays, Expense Cause Concerns

The reform program, the full implementation of which has already been delayed by a year to 2023, received criticism from the start. The intended reforms are extremely ambitious and concerns have been expressed that there is too much focus on digitization and costs savings while losing sight of the bigger picture and the overall aim of the justice system, which is to be fair and ensure access to justice for all.

Those concerned about the costs of implementing the program have criticized the significant expenditure already spent on consultants such as PricewaterhouseCoopers who have reportedly been paid $38 million (£30 million) for their role assisting HMCTS deliver a digital court system.

Given the delays, expense, and concerns regarding the potential eroding of defendants’ rights under some of the reforms, it may well be some time before we can assess the true impact of the reforms on all who use the criminal justice system.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Ilana Baines is a criminal and regulatory lawyer in London at specialist fraud firm Byrne and Partners LLP. She has experience defending allegations of complex fraud including corruption, money laundering, tax evasion, insider dealing, fraud by abuse of position, fraudulently selling tickets and land banking.

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