Justice Committee
Oral evidence: The work of the Lord Chief Justice, HC 226
Tuesday 10 November 2020
Ordered by the House of Commons to be published on 10 November 2020.
Members present: Sir Robert Neill (Chair); Paula Barker; Rob Butler; Miss Sarah Dines; Maria Eagle; John Howell; Kenny MacAskill; Dr Kieran Mullan; Andy Slaughter.
Questions 1 - 50
Witness
I: Rt Hon Lord Burnett of Maldon, Lord Chief Justice of England and Wales.
Witness: the Lord Chief Justice.
Q1 Chair: Good afternoon and welcome to this evidence session of the Justice Committee. I welcome, in particular, our guest, the Lord Chief Justice of England and Wales, Lord Burnett. It is very good to see you, Lord Chief Justice.
The Lord Chief Justice: It is good to see you, too.
Chair: As you know from having given evidence to us before, we all have to start meetings with formal declarations of interest. I am a non-practising barrister and a Bencher of the Middle Temple, as are you, Lord Burnett. We ought to declare that connection. You are also a consultant to a law firm.
The Lord Chief Justice: Yes.
John Howell: I am an associate of the Chartered Institute of Arbitrators.
Chair: I am now going to ask people who are joining us remotely.
Maria Eagle: I am a non-practising solicitor.
Rob Butler: Prior to my election, I was a non-executive director of HMPPS and a magistrate member of the Sentencing Council.
Miss Dines: I am a barrister but I have taken no cases since my election.
Paula Barker: I have nothing to declare.
Kenny MacAskill: I have nothing to declare.
Andy Slaughter: I am a non-practising barrister.
May I just touch upon one matter at the beginning? There has been some publicity concerning comments made by members of the Government about the role of lawyers within the justice system. Do you, as head of the judiciary, have any observations that you thought it appropriate to make in relation to that?
The Lord Chief Justice: Thank you. I have said before, and I have said it publicly, that the vitality and independence of the legal profession is an essential hallmark of a society governed by the rule of law. Lawyers have a duty to act fearlessly for their clients, subject always to their overriding professional obligations and duties to the courts. They should not be subject to criticism for doing so. A general attack on the legal profession, in my view, undermines the rule of law.
The Lord Chancellor put it well last month, if I may respectfully say so, when he said: “Sometimes a lawyer will find the arguments they advance to be at odds with the Government of the day—but it frankly is a strength of our mature democracy underpinned by the Rule of Law that such debates can occur.” I agree. If the argument advanced by a lawyer is a good one, it will be accepted by the court. If it is a bad one, it will not be accepted.
Many years ago, another Lord Chancellor said in the context of Ministers being disappointed with the outcome of litigation: “Maturity requires that when you get a decision that favours you, you do not clap, and when you get one that goes against you, you do not boo.” You will remember that that was Lord Irvine. In my view, that was a wise observation.
None of this, of course, immunises the individual conduct of lawyers from criticism in appropriate circumstances—of course not. Only a tiny minority of lawyers cross that line in individual cases. Many judges have referred to this in the course of our judgments, including one of my own last month, referring to what is called the Hamid jurisdiction, much quoted completely out of context. But identifiable individual failings, unfortunate though they are, do not begin to justify a general attack upon the integrity of groups of lawyers.
Chair: That is very helpful. Thank you very much.
Q3 Andy Slaughter: I thank the Lord Chief Justice for his comments, which will be heard and welcomed by many lawyers, particularly, perhaps, as the last time this matter was raised in Parliament at Attorney General questions he was prayed in aid.
Let me make one further point. There has been something of a chilling effect because of the repeated comments made by the Prime Minister and Home Secretary, and subsequently by the Attorney General, who in the debate last Thursday talked about lawyers who take advantage of their position and abuse the court process. MPs are somewhat sensitive to this because we have also been through the process of being through the mill in the courts and, consequently, have had to have security measures improved at homes and offices. Many small law firms, law centres and so forth are quite vulnerable in that way. They want to be accessible to the public.
I use the example of the Chair of the Bar, on behalf of the profession, writing to the Prime Minister about comments a month ago and not having received a reply. The profession generally and its representatives are looking to the senior judiciary to give a lead. Fair criticism is all well and good and, indeed, so is pointing out mistakes when they happen. There is at the moment a genuine feeling of unease. I do not know whether you appreciate that and whether there is anything further that you and your colleagues can do to offset that.
The Lord Chief Justice: I am well aware of the sense of unease because it has been conveyed to me by the Chair of the Bar and the President of the Law Society. I spoke publicly about this matter on 15 October in terms not very dissimilar from those that I have just used in answer to Sir Bob’s question. Regrettably, from my perspective, what I say is often not picked up and reported. Not only did I on that occasion express sentiments of the sort that I have expressed to you this afternoon, but the Lord Chancellor did again.
Q4 Chair: Of course, it is the Lord Chancellor who has the constitutional responsibility as a Minister to defend the independence of the judiciary. Have you had any difficulty in conveying and having accepted by the Lord Chancellor your views on the matter?
The Lord Chief Justice: None whatsoever.
Q5 Chair: I get the sense that you have been satisfied with the responses from the Lord Chancellor.
The Lord Chief Justice: Indeed. The Lord Chancellor and I speak often about many matters, including matters of this sort.
Q6 Chair: Thank you very much. That is very helpful.
Shall we deal with some of the specific issues that we want to raise with you? Of course, one of the things that we have all had to contend with—Members of Parliament, judges and lawyers—is the terribly, frighteningly novel situation of the pandemic, which has created challenges for us all.
Could you help us from your perspective and that of the judiciary about what lessons we have been able to learn from the first lockdown, the impacts that we know that had—we have heard evidence on that in some of our previous sessions—and how they have influenced the plans to manage the courts during the second wave? Concerns have been raised about backlogs and where we are now.
The Lord Chief Justice: It seems a very long time ago since early March of this year, I suspect for all of us. Even before the lockdown, it was clear that the advice on social distancing meant that the operation of the courts in all jurisdictions would have to be adjusted. I encouraged judges in all jurisdictions to use technology to allow people to attend cases remotely if it was practicable and in the interests of justice to do so.
It has to be understood that at the outset—in other words, in March—the facilities that were available in most courts were pretty dreadful. I suspect many people would be astonished to learn that most judges did not even have telephones that were capable of being used for conference calls. Telephones were put in extremely quickly by HMCTS. To their credit, they did that at speed.
We had to use in all jurisdictions commercially available online platforms, such as Skype, Teams, Zoom and so on, in circumstances where people were not used to them and often in extremely difficult circumstances, by which I mean physically difficult circumstances. We are looking today at lovely big screens with seven of your colleagues easily visible. The truth is that, for most judges, lawyers and others who took part in proceedings in those early days, for much of the time they were hunched over laptops and it was extremely difficult. It proved to be tiring for all those involved, and in some jurisdictions, particularly the county court and the family court where there are large numbers of litigants in person, litigants in person struggled, often because they did not have technology that enabled them to join hearings appropriately, but, as often, simply because they did not have an environment at home where, quietly, they could take part in legal proceedings. For the first couple of months everyone was running to keep up.
Collectively, we had taken a decision that work in all the jurisdictions had to carry on, not simply urgent work in the sense of time-critical work but other types of work, because we were conscious, even back in the spring, that if Covid went on for any length of time—alas, it has—the accumulating backlogs would be extremely difficult to catch up when as we hope, as we still hope, we come through it. The technology was improved, more courts were opened, more judges were able to operate from court, more people were able to attend court and things gently got better.
A technological advance, which was being piloted in a few places at the time, cloud video platform, was accelerated across the whole of the court estate into all jurisdictions. It is not perfect, but it is a good deal better. The experience of most, but not all, participants as the months have gone by is that the use of technology, so long as it is used for hearings where it is suitable, is becoming easier and better altogether.
There are a couple of points I would make, although I am probably answering this question in far too lengthy terms. The overarching problem that we encounter in the courts, even in the Royal Courts of Justice, is that the technology fails us. I remember when we all did a technologically enabled hearing of the Committee in May and one or two of your members suffered what we all encounter, such as screens freezing, voices going completely unintelligible and squeaking on the line. The reality is that technology is part of the solution but it is not the solution. It is not a silver bullet. I have often said that the real problem is that it depends upon the broadband of the weakest link. That is undoubtedly the case.
We have learnt a lot. In particular, we are getting a fairly good sense in all jurisdictions of the types of hearings that lend themselves to either all or one or two of the participants attending remotely and those that do not. That is being carried forward at the moment. There is in development a much better video-hearing system, which, again, was being trialled at the time this all started. My hope is that that will be accelerated because it will, undoubtedly, make life easier.
For the future and for so long as we have to live with Covid, we will continue in all jurisdictions with a mix of face-to-face hearings, a mix of some that can be entirely remote—that is to say, all the participants attend by phone or by an online platform—and increasingly what we call hybrid hearings, which means that some people are in court, some people attend remotely and different people attend remotely at different times of the hearing. Flexibility and adaptability are the key to keeping things going.
Q7 Chair: Understood. You mentioned the directions given to try to use remote proceedings wherever possible. I do not know whether you have noticed, Lord Chief Justice, but I have seen on social media a number of instances where concern has been raised by practitioners, and in some Crown courts in particular, that resident judges have been tending to list everything, including lots of pre-trial work, which one assumes could be done remotely, for hearings where counsel, in particular, are required to attend in person. Has that come across your desk? Is it going to be looked at?
The Lord Chief Justice: Yes. We have heard the concerns. As you will know, the position under the regulations that were put in place after 26 March was that, if remote attendance is compatible with the interests of justice, that should be allowed to happen.
I would make two observations, if I may, Sir Bob. The first is that what appears to be in the interests of justice to an individual involved in a case may not be a view shared by all others and the judge. Speaking as I know I am to a criminal practitioner of many years’ standing, as you will know, in many hearings, even apparently in quite straightforward hearings, it is not what happens in court that turns out to be the most important transaction. It is the discussions that go on out of court. There are instances, I know, where individual practitioners think that they should not have been asked to attend court but the judge took a different view. It is for the judge to decide.
As for the general point, it is fair to say that we have hunted high and low for more than anecdote on this, and it has been very difficult to find. My strong sense—I have spoken recently to the senior presiding judge about it—is that, whatever may have been the position in the weeks and early stage after lockdown, things have generally settled down now.
Q8 Chair: Thanks for that. That is helpful. One other concern that has been raised is the position that, sadly, seems to have come to fruition at Maidstone this week when serving jurors, or other participants in the trial, tested positive for Covid and you are part way through the case. What are the contingency plans if that happens? It could be the jurors, counsel or anyone.
The Lord Chief Justice: This is the first time of which I am aware that this has happened in the way you describe. Just to be clear about it, my understanding—this was reported to me during the weekend—is that three jurors in a trial tested positive for Covid. That is deeply regrettable. This is going to become an increasing problem in the event that Covid is not contained.
There is, undoubtedly, a potential problem from people receiving messages from track and trace, which are by their nature very precautionary but none the less requiring, or at least advising them—these are the advisory ones that come via the app—to stay away. The general point is that we have to recognise that in all jurisdictions the fact that people may have to isolate, the fact that some people may test positive for Covid, and more often the fact that people either themselves have a symptom they are worried about or a family member has a symptom that they are worried about that in the end turns out to be nothing, is one of the many factors slowing down the progress of cases through the system.
Q9 Chair: Given that that is the case, are arrangements in place for judges, court staff and jurors to be tested regularly?
The Lord Chief Justice: Not routinely regularly. The arrangements at the moment are that, if somebody needs to be tested, they are tested. The Lord Chancellor and I have talked about the possibility of trying to enhance the testing—in other words, to make it quicker—so that, as is more often the case than not, when a result comes back negative, that is known as soon as possible so there is as little interruption to the process as we can conceive.
Q10 Chair: That is the concern, is it not? Otherwise you get adjournments at the very least, if not the jury being discharged.
The Lord Chief Justice: If one is thinking of the Crown court, it is, as all will know, possible to start with 12 and to lose a couple without losing the trial. The difficulty is likely to arise in long cases. It has happened in one case that I am aware of where there had to be a pause of a week to enable isolation to run its course.
Q11 Chair: That is understood, too. There is now talk of a vaccine, although we should not make too much of that until we have much more detail. Were there to be a vaccine delivered in the form that has been suggested in reasonable time, is any work being done to ensure, for example, that trial participants get priority access? Obviously, we want to deal with the vulnerable and key workers. Has there been thought as to how you deal with that?
The Lord Chief Justice: The news of a viable vaccine is very recent.
Chair: It is early days.
The Lord Chief Justice: I have not had any discussions with anyone yet about the possibility of preferential access, if that is what you are getting at. No doubt, there will be 100 competing preferential access requests made to the Government, but it seems to me, particularly in the context of criminal trials, taking all reasonable steps that enable the cases to carry on, with the prospect one hopes of nibbling into the backlog before too long, should be considered.
Q12 Chair: There will be cases, such as in criminal trials, where people are in custody and the liberty of the subject is involved, or perhaps in family cases, and matters of that kind, where the welfare of children is involved. Those might be the obvious ones to think about.
The Lord Chief Justice: Yes.
Q13 Andy Slaughter: As you know, mass testing has been piloted in Liverpool. Last night the Secretary of State for Health said that that was going to be rolled out immediately in 66 upper-tier authorities. That involves the new fast test that gives a result in 15 to 30 minutes. Do you know whether anything is planned in relation to mass testing for the Court Service? Would you like to see that, because it might be able to solve these problems quite quickly? Have any inquiries been made along those lines?
The Lord Chief Justice: I am afraid I missed the announcement last night by the Secretary of State. I am not on top of the detail of it. To the extent that testing is available and results can be obtained within minutes or an hour or two, that would undoubtedly enhance the throughput of cases through the Crown court, in particular. That is an area that gives rise to great concern. In short, the answer to your question is yes, I would hope to see that authorised.
Q14 Maria Eagle: Good afternoon, Lord Chief. I am interested in asking about the backlog that has been exacerbated by Covid, and about court capacity more generally. On 23 June, the Lord Chancellor told us that the backlog in the Crown courts could be dealt with and would be dealt with by Easter 2021, but the figures from September seem to show that the number of Crown court cases outstanding continues to go up. It has increased by 6,700 or so, even though in magistrates courts the number of outstanding cases is coming down slightly. The Institute for Government says that the official figures understate the backlog because of the additional complexity. When that is factored in, the backlog is, effectively, larger than that. Do you agree with the Lord Chancellor that the backlog can, effectively, be ended by next Easter? It seems to be quite a short timescale.
The Lord Chief Justice: In the magistrates courts there is a good deal of optimism that by next Easter or not long afterwards the position will have been retrieved to where it was in March of this year. The story in the magistrates court is a very positive one indeed. It is appropriate that I pay tribute generally to all those involved: the magistrates, the judges, the legal officers and the court staff.
The picture in the Crown court is turning out to be more difficult. One only has to look at the numbers to see that that is so. The headline figures for backlogs in the Crown court are currently about 50,000, compared with a fraction under 40,000 when we went into lockdown in March, and need to be understood. They do not represent outstanding trials, because a very large number of them turn out not to be trials. None the less, the increase, generally, in the outstanding work in the Crown court during the past eight months has been very substantial indeed.
The work of HMCTS, foreshadowed in the recovery plan published in September, has achieved more in the Crown court than was expected. The plan was to have, by the end of October, 250 Crown courtrooms capable simultaneously of hearing jury trials, and in addition well over 100 more courts that cannot do jury trials but can be used for other things. Last Monday, 2 November, there were 255 in the court estate plus the so-called Nightingale courts, which added up to 11 at that point.
One can see that we are in a position, subject to all the Covid-related problems that the last question was focusing on, in our buildings to conduct simultaneously more than 250 jury trials at any one moment. The plan is to increase the number of courts yet further, I hope, to 300 by the end of the year or the beginning of next year.
Even if we are able to run those courts flat out, we will be retrieving the backlog a little, maybe by 50 cases a week or something of that sort—precise figures are very difficult to work out—but it will, none the less, take a long time to recover the backlog. It is impossible to say precisely how long because it depends on too many variables.
I agree with your observation about the mix of work coming into the Crown court. As everybody will know, in the three months after lockdown there was a marked diminution in certain types of crime—the sort of crime that happens because people are on the streets or because people are getting drunk on Friday and Saturday nights—and burglaries, because everyone was home. All of that fell away a little. As we know, the police were not idle. A great deal of work was done following up intelligence leads. You will have read in the press about the successes with county lines and things of that sort. We think there is going to be an increase in the complexity of the cases coming in.
We are also conscious of the fact that the Government are committed to funding a large number of additional police officers. That is bound to feed through into work coming into the criminal courts. The CPS has recruited 500 more lawyers. That, too, will have an impact. This leads to a critical question of what we mean by capacity and how we are to maintain it. The capacity is much more than the physical space in the court buildings. That is part of it. If we are focusing on the Crown court, it is also judicial capacity, the Crown court judges and the recorders. We do not think there will be any problem in finding judges to hear as many cases as we are able to hear. Then there is staff capacity. As you know, HMCTS is increasing its staff headcount, but it is taking time. That could have an impact on the ability in all jurisdictions to transact work.
There is the capacity of the major players who are involved to service the cases in the Crown court, such as the CPS, the police and so on. That is also something of a concern.
Then there is the money. This year there is no constraint on sitting days in any jurisdiction. If we have a courtroom that we can use and a case is able to be tried in it, we will do so, irrespective of whether technically we are running up against sitting day limits.
In my view, it is absolutely vital that the same approach is adopted next year. I would be disappointed—that is a very mild word—should funding from the Treasury to the MOJ not allow for that because, if it does not allow for that, the danger is that much larger backlogs are baked into the system.
My view for next year in all jurisdictions is, rather than the traditional approach to funding, which is to look at what you have spent this year and nudge it up a bit or, dare I say it, as it is suggested occasionally, to nudge it down a bit, there has to be a realistic assessment in every jurisdiction of the likely expectation of work coming into the system. In addition, there has to be a clear understanding of the additional backlogs that we have to clear.
Let me mention family. In the family courts, the latest figures that compare the position in October 2020 with October 2019 show that the outstanding volume of cases in public law family is 17% higher than it was a year ago, and in private law family 22% higher. I am extremely concerned to avoid the position that would result in the backlogs that we have inevitably accumulated during Covid being viewed by anybody as a new normal. In other words, funding must be provided to enable us to deal with the work coming in and to deal with the backlog.
Q15 Maria Eagle: It does not sound to me very likely that the Lord Chancellor’s hope—that things will be back to normal by Easter and the backlog cleared—is going to come true. The Nightingale courts are one of the things that the Government put forward as a way of trying to ease the backlog. They promised 10 in July and eight more in September. Am I right that only five of them are undertaking jury trials? To what extent are the Nightingale courts helpful in reducing the backlog, or do you not really need them because you have the Crown courtrooms that you have been discussing with us?
The Lord Chief Justice: Most of the Nightingale courtrooms are being used to deal with business other than Crown court trials. The reason is that to equip a conference hall or a hotel conference suite as a Crown court is an extremely difficult and, frankly, rather expensive undertaking. I am trying to add them up in my head precisely. I think there are 11 Nightingale Crown court hearing rooms, and they are making a welcome contribution to the ability in the Crown court to deal with jury trials.
The better course at the moment is to continue to look first at the estate we have and to make the adjustments that will enable jury trials to be conducted in additional courtrooms. HMCTS is looking out for, roughly, another 40 within the estate, which would be a big addition to the numbers that we have already. It may not be enough, so I am not, for a moment, suggesting that if suitable external space presents itself it should not be looked at.
Q16 Maria Eagle: Have you looked at the Scottish approach, which is to use cinemas to host juries who observe court proceedings by video link? Have you looked at other international models and ways that this problem has been tackled elsewhere to increase capacity in England and Wales?
The Lord Chief Justice: I was talking to the Lord President in Scotland about the Scottish model only yesterday. Two of my senior colleagues, the President of the Queen’s Bench Division and the senior presiding judge, went to Edinburgh a fortnight ago to have a look at one of those courts in operation. They are relatively few and far between in Scotland at the moment. As you have indicated, the jury is located in a cinema and is watching the proceedings that are going on in the courtroom. It is a bold idea that needs to be looked at. If it works, and, if it is better than anything else, I am confident that the Lord Chancellor will look at it, but it is extremely expensive.
It is not very glamorous to say that most of the courts are up and running with the help of HMCTS by unscrewing furniture and moving it, by putting in plexiglass and, in some places, by having bespoke portakabins built and put in car parks to enable them to be used for rooms. It does not make for a very interesting story to say that HMCTS gets out screwdrivers and puts in plexiglass, but it has achieved more than I realistically thought it would when it was first being looked at in detail some four or five months ago.
Chair: We cut our teeth in the prefabs at Inner London Crown court. It’s like going back to the future.
The Lord Chief Justice: I fear they are still in place.
Q17 Maria Eagle: What impact has extended opening hours had on Crown court capacity and those who work in the courts? The other constraint is sitting days, and whether that is going to impose any limit on the capacity to tackle the backlogs.
The Lord Chief Justice: As I said, there is no restraint this year on sitting days at all. I very much hope that there will not be next year.
So far as extended operating hours are concerned, perhaps for those who do not understand the detail, it amounts to this. It is not extending the sitting hours of a single court so that everybody is there from 9 in the morning until 6 in the early evening. This model is looking at having one trial in the morning sitting for a total of four hours, a short gap for the court to be cleaned, and another trial sitting in the afternoon for four hours. For those involved in the individual cases, it is short hours rather than longer hours.
It has been piloted in a number of courts. It was piloted in Liverpool and it is being piloted in courts on each circuit to see whether it works—in particular, whether it increases the volume of cases that are dealt with or not.
The answer to that question is not as obvious as it may seem. It will depend very much on the nature of the cases that are being dealt with in that model. It is making a modest contribution at the moment.
The pilots will be looked at very carefully. In the end, it is a decision not for me but for the Lord Chancellor, although no doubt there would be the usual close consultation.
Q18 Rob Butler: Lord Chief, you mentioned the success of the magistrates courts. Having sat in many a very small magistrates court and in many and even smaller magistrates retiring rooms in past years, could you tell us more about how the magistrates courts have achieved that success? Is it plexiglass or have they needed to take a sledgehammer to some temporary walls?
The Lord Chief Justice: I know that thought has been given to taking down walls. I am not able to say from my own experience whether that has happened in magistrates courts. It is plexiglass, using bigger courts and limiting the footfall into the courts, including in many courts the consequence that benches of lay magistrates have had to be two rather than three.
You refer not only to the relatively constricted space in some courts but to the retiring rooms. It has been at the top of HMCTS’s concern that all of the courts operate in accordance with the guidance from Public Health England and Public Health Wales.
Q19 Rob Butler: Picking up on that, I occasionally had to sit as a bench of two and it was never seen as desirable, especially in a trial, in case you had a split decision, but that has not been an issue that has arisen to the best of your knowledge very frequently.
The Lord Chief Justice: I agree with your observation that it is better to have three, but I am not aware of it being a particular problem during the past few months.
Q20 Rob Butler: Excellent.
Going back to the Crown courts, I recently visited Aylesbury Crown court in my constituency and I was very struck by the innovative approach taken by Judge Sheridan, both in the use of the layout of the physical courtrooms but also placing a defendant in one location—in this case in Aylesbury— while the judge was sitting in Amersham. How much scope is there for individual judges to be innovative, to feed that back up the pipeline and to make sure best practice is shared?
The Lord Chief Justice: There is scope. Judges do not operate in a vacuum. They work closely with the HMCTS both locally and regionally. Almost all judges are closely involved with their user groups, so that everybody who has a view about how to improve the throughput of cases is able to advance it.
Some quite remarkably imaginative options have been presented by judges all over the country. So far as the Crown court is concerned, the resident judges—the senior judges in charge of each Crown court—gather remotely with the senior presiding judge at least once a fortnight, often once a week, and it is precisely the environment in which experiences that have worked in one court can be passed on and tried in another.
One thing that has become extremely clear to us sitting at the centre is what works in one court does not necessarily work in another. One has to be sensitive to listen to those who know what goes on and what the physical constraints are in their individual courts. That has been one of the great success stories. I am not suggesting for a moment that there is not much more to do. It has been a hard slog for everyone. The extent to which judges, court staff, local practitioners, the CPS and everyone have rolled up their sleeves with a view to trying to come up with solutions that enable them to get the work going through properly has been quite remarkable.
Q21 Rob Butler: Do you think that in the post-Covid world there will be scope for more flexibility, more innovation and more imagination, not just in physical terms but in the approach, for example, to case management or dealing with cases expeditiously?
The Lord Chief Justice: Case management has been on the move for many years, as I am sure you know. An enormous amount of work has been done to try to smooth out wrinkles, effectively, to try to ensure that cases are dealt with as quickly and expeditiously as possible, to encourage cases that are going to plead, to plead early and so on.
Once again, the resident judges, and through the resident judges the Crown court judges in England and Wales, share all this experience constantly. As it happens, last Friday was the resident judges conference. It would normally have taken place physically, probably at Warwick University, but we did it remotely with all of them present. Again, it provided opportunities for a number to explain some of the great things that they were doing, which then gets shared.
Q22 Chair: Perhaps it is anecdotal, but one issue that sometimes has been raised by practitioners in the magistrates court has been what happens before you get into the courtroom: social distancing in the waiting area, the risk of over-listing or just normal listing and not giving enough space. Are there enough staff to enable that type of control in the public areas before we get into court? Are lessons being learned around the listing to try to prevent that?
The Lord Chief Justice: A great deal of work is done locally in every court to try to ensure that social distancing is maintained. Quite simple things can make big differences. Having precisely timed hearings is one example. Rather than everybody at a magistrates court turning up at, say, 10 o’clock, some are coming at 10, 10 past 10 and 20 past 10 and so on. HMCTS and its staff are being meticulous, as far as I am aware, in trying to ensure that people do what they are advised to do. I cannot, of course, say that there are not occasional problems. That is inevitable in a system with so many buildings. It has been working reasonably well.
Chair: Do you have anything to say on criminal jurisdiction before I move on to civil? Mr Slaughter, is there anything you want to ask on crime?
Andy Slaughter: It was on the use of courtrooms generally, Chair. I do not think that this is the appropriate point.
Chair: That is fine. We can always pick it up again.
Q23 Paula Barker: Thank you, Chair. Good afternoon, Lord Chief. I would like to go back to the improvements in technology. I would be interested to understand what the Court Service can do to support police forces to ensure that they have technology and the secure physical capacity to facilitate remand hearings in the magistrates court?
The Lord Chief Justice: I do not think there is anything that the Court Service can do, although you would have to ask them. The question you ask has beneath it a problem that is emerging in the magistrates court this month and next month.
In 2019 and at the beginning of this year, some pilots were running that enabled remand hearings in magistrates courts to be conducted from police stations because, obviously, that can improve flow, efficiency and all sorts of things. When lockdown came, to their great credit, every police force in England and Wales began doing video remand hearings. It is resource intensive for them—there is no doubt about that—because they need police officers to man the video suites. I know that that is causing them some difficulty. There is a curious requirement that means that PECS officers—the officers who generally look after prisoners and transport them around—cannot be in the police stations supervising those hearings. There needs to be a legislative change to enable that to happen, and I hope we will get one at some point.
All the chief constables of England and Wales have indicated that they will withdraw from this scheme at some point during December. That has some pretty adverse consequences. The first and perhaps most important is that it will increase risk to those in the magistrates court because there will be more and more people having to turn out.
The second is that in many places it will slow down the throughput of work because the cells are just not big enough to accommodate the numbers of people who need to be accommodated, and it will have to be stretched out.
I deeply regret the decision made by the chief constables. I hope I am not being too cynical in suggesting that money may be at the heart of it. If the problem is money, it seems to me that the Home Secretary and the Lord Chancellor should be in a position to sort it out. To my mind, it would be deeply regrettable if video remand hearings were unilaterally stopped with the consequences that I have indicated.
Q24 Dr Mullan: In terms of the staffing within stations, it is not literally police officers who are responsibility for moving people around and monitoring their cells. I can imagine it would be easier to expand the number of custody suite staff who might be available in police stations without requiring a legislative change.
The Lord Chief Justice: That may be so. I have ringing in my ears an observation of the Commissioner that she made in a talk only a month or so ago that the supporting video remand hearings took up the equivalent of 46 police officers. I know your background would indicate that you know much more about what goes on in police stations than I do.
Q25 Chair: Let me say that that is service as a special constable rather than anything more ominous, Lord Chief.
The Lord Chief Justice: Certainly; as a special constable. I am sorry I did not add that. I thought everybody would understand.
It needs to be sorted out because it is going to be one of those things that slows down work in the magistrates court, which, as I indicated earlier, has been rather a success story.
Q26 Paula Barker: Are prisons currently able to support prisoners to appear in court remotely, and how successful has this been?
The Lord Chief Justice: The answer is yes, but not always. It is another example of something I mentioned earlier: that capacity in the courts includes the capacity of the major players to support what we are doing.
Prisons were put into a very difficult position when lockdown came about. The need to use video conferencing facilities not only expanded vis-à-vis court hearings, but legal visits, for example, were mostly taking place via video link and no doubt other things as well. Although prisons are not within my responsibilities—they are a matter for the Secretary of State for Justice—steps were taken to increase the number of video suites in many prisons. If we are going to continue to live in an environment where, for reasons of safety, it is necessary for prisoners more frequently to attend courts remotely for some, if not all, of their cases, undoubtedly, there will be a need for yet more video suites put into prisons and staffed.
Q27 Chair: In relation to police stations—I hear what you said and your concerns about what has happened, Lord Burnett—we had a submission from the Police and Crime Commissioner for Surrey. The issue seemed to be the decision to move from the VEJ—the video-enabled justice technology—to the Kinly cloud video platform. They are saying, in effect, that that is the cause of this difficulty and extra cost for them. Is that something you have been aware of? Have they raised it with you or with HMCTS, more properly?
The Lord Chief Justice: Yes. It is a long and tortured story. The system that the Police and Crime Commissioner is referring to was being piloted by a small number of forces but it was not being used by most forces. With respect, that is something of a side issue.
Q28 Chair: What is the best means to resolve it? Is it money, and what else?
The Lord Chief Justice: I very much hope that the Lord Chancellor and the Home Secretary will resolve this problem, if money is the issue, and that the chief constables will review their decision.
Q29 Chair: Would the legislative change that you referred to with the PECS be primary or secondary legislation?
The Lord Chief Justice: I am advised that it is primary.
Q30 John Howell: Good afternoon, Lord Chief. May I turn to the civil courts? Are there any special needs that the civil courts have that you are addressing to increase capacity?
The Lord Chief Justice: I would identify two particular problems in the county courts. The first is that we, as you will remember, have too few district judges sitting in the county court and the family court. The last two competitions for district judges resulted in the Judicial Appointments Commission not being able to recommend the number of judges needed to continue to staff those courts. A competition is running at the moment that one hopes will deliver the number of judges we need. There has been a substantial appointment of deputy district judges, both last year and this year. There were more than 300 last year and more than 100 this year. This year’s cohort are in the process of being trained. That will help a little.
The judges who sit in the family court and the county court are, by and large, the same judges. There is a shortage of judicial resource at the moment where a lot of work is being done to try to sort it out.
What is most striking about the county court is the fact that it is still an entirely paper-based court. There is no digital filing of documents in the county court. During the course of the response to the pandemic, we have seen that the courts that are well advanced in the modernisation programme have fared better. I am referring to those that had the video technology and those that are digitised. The county court is not digitised.
This situation flows into the modernisation and reform programme, which has been running now for four years. It is absolutely critical that it is seen through to its conclusion, not only in the county courts but in the family court, where digitisation is just beginning to roll out. To my mind it is unimaginable that we could contemplate, in the third decade of the 21st century, a court that does more than 90% of the civil work in this country relying on people filling out long forms, putting them in envelopes and sending them in. It is unthinkable.
The MOJ is in the process of putting forward its next bid for the money for the reform programme. It would be extremely unfortunate, putting it as mildly as I can, were there to be any difficulty raised by the Treasury over funding the modernisation programme properly. Those two things are a particular concern in the county court.
Q31 Dr Mullan: On the remarks you made about the inability to appoint judges, have not enough suitable candidates come forward? What are the reasons for that when we have the space?
The Lord Chief Justice: There are multiple reasons. The real cause is that not enough people have applied in the last two competitions to be district judges who satisfied the JAC that they were selectable. The main reason for that is that the pool of candidates suitably qualified had been fished almost dry, because, for many years, very few deputies were appointed. That, I hope, is now being resolved, but we shall see.
Q32 Dr Mullan: The pipeline, so to speak.
The Lord Chief Justice: There was a pipeline issue.
There are two other issues, if I may mention them, in particular. The first is that the work of the district bench is extremely hard. They do a wide range of cases. Increasingly, they do difficult and emotionally very difficult family cases, so the job has become much harder. Considering the conditions in which many of our district judges work, in buildings—you have heard me talk about this in the past—which are, frankly, an embarrassment, and with technology that was not working, one can well see that all these things combined to make some people wonder whether they want to do it.
Q33 Dr Mullan: There are other people out there but they do not necessarily want to do the job.
The Lord Chief Justice: We hope that there now are sufficient people. The competition is running, so I am not in a position to say anything about it. I would be extremely disappointed, indeed surprised, if the recruitment were not more successful than last year.
Q34 John Howell: I have one last question, which is about the impact of remote hearings on litigants in person and other vulnerable people. How are you assessing that? What changes have that led you to implement?
The Lord Chief Justice: It is undoubtedly the case that many litigants in person, who, as I indicated earlier, populate the family and county court in particular, and many of the tribunals, find it difficult to take part in hearings remotely. During the course of the last few months it has been necessary, in the interests of justice, for that to happen; otherwise the cases would not have happened at all. It is being looked at with some care.
In the civil and family courts, some academic snapshots were taken of the views of participants across the board in proceedings in the family court and in the county court. Judges, practitioners, parties, witnesses and other professionals who are involved were all canvassed. The results of that, and particularly the more recent snapshots, are quite illuminating.
Something similar is going on in crime. Litigants in person, if one calls them that, are very common in the magistrates court but a little less common in the Crown court. Work is being done to try to elicit from people their experiences.
Looking at some of this as it comes through, I am finding that there is an enormous range of views, from some people thinking it is marvellous that a certain type of hearing was done remotely, to others thinking that it was a disaster. I suspect one will always get that in this type of environment. The impact on court users, and particularly litigants in person and those who will struggle to participate remotely, is at the forefront of our thinking.
Q35 Chair: You mentioned, Lord Chief, those jurisdictions that are most advanced in reform perform best. We have had evidence about employment tribunals being pretty slow in getting themselves digitised and moved on to technology. Is particular attention being given to the employment tribunal or not, because it seems that concern about the conversion to remote links has led to a good deal of postponement of hearings?
The Lord Chief Justice: I am not able to answer for the employment tribunals because that is particularly within the purview of the Senior President of Tribunals. I can make sure that your question is passed on and we will invite him to drop you a line.
Chair: That would be very useful. Thank you very much.
Q36 Andy Slaughter: Lord Chief, you mentioned making the best use of the existing estate. As regards the civil courts, is that being done? Do you get regular data on the use of courtrooms? I am thinking of an example just before lockdown where one of my county courts was trialling an extended-hours scheme, which was proving to be somewhat difficult. One of the comments made to me—it seemed slightly ironic—was that that was happening when only two of the five courts were actually sitting on a regular basis. Do we know whether all existing civil courts are sitting on a regular basis now?
The Lord Chief Justice: Those that have judges to sit in them, staff to staff them and cases to be heard are sitting. What I do not have at my fingertips, I am afraid, is any of the statistical material that might give a deeper answer.
Let me observe that the data capture, so far as the county court is concerned, is exceptionally poor. That is no criticism of anybody. It is simply that we do not have at the moment any of the sorts of systems that would record what is going on in the courts. That is something, again, that comes through the reform programme and why it is so vital. If you were to ask me an even more straightforward question: how many cases are outstanding for hearing in the county court in England—
Andy Slaughter: That was to be my next question.
The Lord Chief Justice: I honestly did not know that. There is nobody who could give you an answer because the collection of that data is not possible. I am able to say that timeliness in the county court for final hearings is not what we would wish it to be even before Covid. It is likely not to get better, but I hope it will not get much worse.
Q37 Andy Slaughter: We are all looking at the criminal courts in a different light after today and seeing a beacon for forward good practice. I was asking some questions of the Ministry a couple of weeks ago and I was quite shocked with the answer that civil claims backlog data is not held by the Department, which I certainly did not know before that. Do you know whether there are any plans for that to change? Even if the backlog does not exist, is the actual physical court usage data available on a regular basis?
The Lord Chief Justice: I am not aware of accurate data for court usage. Snapshots are taken from time to time. The fundamental point that you make by the question you asked of the MOJ and the answer you received is striking. In what sort of justice system would someone not be able to interrogate a computer system and discover how many cases are outstanding in any particular court? The answer is one that has not had any money spent on it for decades and that has technology and data systems that are antiquated to the point of uselessness.
Q38 Andy Slaughter: Indeed. You have touched upon my final question, which is also referred to in your memorandum. Clearly, this is mainly about staffing. Again, as far as the civil courts are concerned, you have mentioned judges. You also mentioned in your memorandum that some additional money has been granted to staffing. Is that going into civil courts? Is it enough at the moment, or do we need, just to make the current Covid system work, more staff in the courts themselves?
The Lord Chief Justice: The number of staff that HMCTS is seeking in addition to its pre-existing numbers is 1,600. It is taking a long time to recruit 1,600 people in an environment where we read daily that the number of those who are looking for work is going up. They will get the 1,600 people, I have no doubt. Is that enough? No, I do not think it will be. If we are able, as I hope, to be able to run all our jurisdictions to their full capacities, we will need more staff.
Q39 Dr Mullan: Can you put a figure on that?
The Lord Chief Justice: No. That would be reckless of me.
Q40 Miss Dines: Lord Chief Justice, thank you for attending today.
I want to ask you about the vulnerable court users you mentioned earlier. My practice at the Bar was mainly in the field of family law. I have been taking soundings from colleagues and friends across the Bar. What they say about the system of not attending in person, the remote attendance, is that it is fantastic for the lawyers but less good for the clients because, with all the best intentions in the world, they cannot have the same level of service. For the lawyer, it means they don’t have to travel and it is cheaper. Would you consider making the point very forcefully to Government that we do not adopt what is an easier system post Covid but that we go back to our basic rights of representing vulnerable clients?
The Lord Chief Justice: In the context of what we have discovered during the last seven or eight months with Covid, whatever happens, we are going to have a few more months of difficulty, possibly many more months. Many lessons will have been learnt and experience will make people think harder about the way we did things in all jurisdictions before last March. We were on a gentle march to use technology more widely when it is in the interests of justice to do so. I emphasise that.
I, too, have many friends and colleagues at the Bar who tell me what they think about things. It is fair to say that it is difficult to find two people who precisely agree on anything in this area. As I said a few moments ago, ensuring that vulnerable people are able to take part appropriately in any type of proceedings, but family proceedings are perhaps the paradigm, is at the heart of what we as judges ensure must happen.
I repeat an observation I made right at the beginning: technology is part of a solution to the problems that we have in the courts, but it is not the solution. Too often—I suspect this echoes the point that you are making to me—those who do not have close experience of what goes on in courts and in the different jurisdictions simply believe that it is possible to do anything that happens in a court using a video link of the sort we are doing at the moment. That is just not so. Nobody thinks that that is so. Yet, occasionally, one hears observations that tend towards that point of view. For vulnerable people and the ability of litigants in person to play an effective part in proceedings is absolutely at the heart of any consideration about how we go forward.
Q41 Miss Dines: Thank you. I would like to move on to the court reform programme. You spent some time telling us in May that an enormous amount of work was being put into gathering more reliable figures and data to inform us for the future. Has the data that is now available to you, in contrast to what you had in May, improved?
The Lord Chief Justice: In most jurisdictions it is better. I was talking about civil a moment ago, in the county court, where it is extremely poor, to be honest. Not only do we have better understanding of the types of cases that have been heard face to face, hybrid with some technological involvement, but we also have the benefit of the snapshots that I was referring to. We will have the benefit of more than a snapshot in the criminal jurisdiction in the future.
The data will not be perfect. I always emphasise that it can sometimes be unwise to search for perfect data and defer making any decisions until you are confident that you have them, because in some environments that means you will never make decisions. It is improving.
Q42 Miss Dines: If you had to choose a priority, which area of the court system is in most need of digitisation? Is it the county court? Can you expand on that a little, please?
The Lord Chief Justice: Yes. The way in which the reform programme is working is that it is moving across all fronts. The digitisation of the public law family work, which is an area I know you are very familiar with, is proceeding now. It has been delayed a few months because of Covid but it is proceeding now. The view of the President of the Family Division is that that will have quite a significant impact on the efficiency of the court for everybody’s purposes.
Digitisation of private family is coming down the track. That, too, is very important, as is digitisation of the county court. All of them.
Q43 Chair: I would like to look forward a little, Lord Burnett, if I might. You talked about recruitment to the district bench as being something that has been historically under pressure. Are there other areas where you think there is likely to be current or future pressure on recruitment, be it at the High Court or the magistracy?
The Lord Chief Justice: Let me mention the magistracy first. Quite an intensive recruitment campaign has been going on for magistrates. Again, it has been the subject of a hiccup during the last few months. About 1,000 magistrates have been appointed and are in the process of being trained. We do not have enough magistrates. Not only do the magistrates have to deal with the criminal work in the adult court and the youth court, but increasingly they are doing a lot of extremely valuable work in the family court. I hope that the recruitment of magistrates will continue.
There has been a concern that in times of economic difficulty people are more reluctant to become magistrates because they fear it could put them in a difficulty vis-à-vis employers. I am not aware of that difficulty manifesting itself yet but we will need to keep an eye on that.
So far as the High Court is concerned—we have spoken about this for more than three years since I took office—there has been a significant turnaround in recruitment to the High Court. We are still not quite up to the statutory number. The reality is that the Government’s commitment to sort out the technical problems that engulf the judicial pension scheme in legislation next year has been a significant change, which has resulted in increased recruitment.
Q44 Chair: That is very helpful. The Government have been consulting, up until last month, on increasing the mandatory judicial retirement age, which is currently 70 for all levels of the judiciary. Is that a topic upon which you, as a head of the judiciary, have any views that you could share?
The Lord Chief Justice: Yes. I have stated them publicly before, so I am happy to do so again. They echo the consultation response that I put in. Three options, essentially, are being consulted on: stay as we are, 70; go to 72, which was the retirement age for circuit judges and district judges until 1995, or those appointed before 1995; or go to 75. The view of the senior judiciary in England and Wales was that it was appropriate to raise the judicial retirement age because we are losing quite a lot of judges who would wish to stay on and would be a valuable continuing resource.
Our view is that 72 is preferable to 75. That is for a very straightforward reason. Maybe our experience chimes with yours in the Palace of Westminster. Almost everybody is still firing on all cylinders between 70 and 72. Increasingly, some people go off the boil after that. One of our concerns would be that in an environment where, for constitutional reasons, the judges simply cannot be removed, and quite rightly so, we may find ourselves with quite a few who are either unwell or not performing as we would like them to. There is a balance here. Our view was 72.
Q45 Dr Mullan: Let me ask you a question on that. I am relatively new to the field. If a judge who is 69, 70 or perhaps even younger, is not performing as one would expect for various reasons, there must be existing mechanisms for addressing that situation.
The Lord Chief Justice: There are. It is a very complex subject, but it is entirely different because judges are not employed. They have constitutional protection. It is not only complicated but it can be and is quite time-consuming and difficult.
Q46 Chair: I understand that. That is helpful. It is a fair point. It is an observation sometimes made by colleagues here. It is not the age you are when you stand for re-election but the age you are going to be at the end of the Parliament that matters. Maybe that is the same principle. Did you have a view on whether that should be flat for the whole of the judiciary?
The Lord Chief Justice: Yes. It is our view that it is invidious to have different retirement ages for different levels of judges. A suggestion was floating about that for the Supreme Court and the Court of Appeal it might be 75, but for everybody else 72 or 70. Our collective view was that it is much better to have a retirement age that stretches across the whole of the judiciary, from the magistracy through all the salaried judges and the fee-paid judges.
Q47 Dr Mullan: We have touched on court staff and capacity in the Crown court in the current time period and in the immediate future. In the longer term, do you think there is a vision for court staff recruitment that will be sufficient?
The Lord Chief Justice: As I indicated in the memorandum that was put before you, court staff numbers are linked to the sitting day allocations. That is the odd unit of currency that the Court Service has operated under. As sitting days are increased in any jurisdiction, so the staff numbers follow. If they are reduced, staff numbers go down.
An exercise has been carried out, certainly over the 12 years that I have been a judge, of a close look by MOJ and HMCTS at staff numbers to see whether they can be properly reduced. The judicial view is that staff numbers have been cut to the bone, to be perfectly honest. Thus, there is not a lot of resilience in the system. At the moment we are seeing that one of the real difficulties is in organising the video hearings, the cloud video platform hearings, which are quite intense from a staffing point of view. In some areas the staff do not exist to do it. Judges are doing it themselves, which they should not have to do, but, among the judiciary, there is an attitude that they are there to serve and they do it. We have to get the staff numbers up to support the type of hearings that we are going to be having during the next year or two. If we increase the volume of work in every jurisdiction, as I would hope we can, with appropriate funding from central Government, the staff numbers are going to have to pull up behind.
There is a particular problem in HMCTS, which I know the MOJ is trying to deal with. HMCTS staff are low paid by comparison with equivalent staff in other Government agencies at the same level. This has been so for years. One of the endemic problems that the Court Service suffers from—judges see it in courts across the country—is that people come into the HMCTS, they get trained, they are very good, and then they move off to another Government agency that pays a little bit more at the same level. Nobody can blame them for doing that. It is very odd. We have been talking about it for years. I know that attempts have been made to sort it out in the past.
I would also hope that whatever funding arrangements are put in place for the future would recognise that raising the salaries in HMCTS so that they are equivalent, for example, to the salaries in the DVLA in Wales, the Revenue or the MOD in parts of the country, may look as if it costs a little, but in the end it will be a cost saving because you will not be recruiting, getting temporary staff in and you will not be losing experience.
Q48 Dr Mullan: We have talked about the reform programme. You have made clear your views about the need for the financial support to move forward. In terms of the content, aims and ambitions, particularly considering what we have learnt during the past six months regarding coronavirus, do you think that what the programme is seeking to do is innovative enough and is going to deliver if it is funded?
The Lord Chief Justice: What you are really asking me is whether I think it should be doing more.
Dr Mullan: Or different things.
The Lord Chief Justice: There are some exciting projects within the reform programme that are at the moment being applied in a fairly narrow scope, which have potential for huge improvement in access to justice and in the quick and efficient disposal of business. One I have in mind, in particular, is the online money civil claims. This is a possibility for litigants in person, businesses or anybody to launch their claim through an online portal. Our ambition is that those claims will be conducted through that all the way to a hearing, if it is needed. Then you can have your hearing. Ambitious plans exist to expand that. I hope that that happens.
I have mentioned the importance of the much better and enhanced video tool that is being developed. I am not sure if that has been demonstrated to the members of the Committee by the Court Service. If it has not, I would encourage you to ask for a demonstration. It is quite interesting.
Chair: No, it has not. That is a very good idea.
The Lord Chief Justice: Overall, the point we must bear in mind is that the reform programme is not looking to get to an end state where we then sit for 10 or 15 years, because things are changing all the time. This is the problem we have at the moment. Some of the computer systems—I barely dare call them that—that are still used in the Court Service are 20 to 25 years old. Maintaining them is more expensive, I suspect, in the end than changing them. It is a constant voyage to make things better.
Q49 Dr Mullan: In terms of how a national programme adjusts to local need and local circumstances, do you think there is a flexibility in the programme at present to be niche in how it delivers reform to the courts locally?
The Lord Chief Justice: Certainly the deployment of video technology and that sort of thing will be determined by local need, but the idea of digitisation, which we already have in the business and property courts and in most of the work now in the Royal Courts of Justice, is that it will be simple, easy to use and available for everybody across the country in just the same way as any of us goes online and changes an address on a driving licence and all the other routine things we do.
Q50 Chair: Apart from voting in the House of Commons, which has proved far too intractable for us. That is a comment rather than a question, Lord Chief.
You have just published your annual report under the provisions of section 5 of the Constitutional Reform Act. Is there anything that you would like to tell us about that which we have not covered already?
The Lord Chief Justice: Inevitably, the annual report focuses quite a lot on Covid. If you have time to read the introduction to the report, you will see that I pay real tribute to the staff of HMCTS, to the judges and magistrates for how they have coped during the past six or seven months. I do not think one should underestimate the intensity of work and fatigue that many people have experienced, be they judges, staff and practitioners. That has been a quite remarkable achievement.
Chair: Thank you. That is an appropriate note to end on because, if there are other matters that we will want to share, I know you will always contact us. We give our thanks to all those involved in the judicial system, your judicial colleagues, practitioners and staff who support you. I do accept that there have been exceptional strains that everybody has had to cope with. We are grateful for their efforts. As always, we are grateful, Lord Chief Justice, for your time and evidence today.
The Lord Chief Justice: It is always a pleasure to be here.