Introduction

The Law Society of England and Wales is the independent professional body that works globally to support and represent 200,000 solicitors, promoting the highest professional standards and the rule of law.
We welcomed the opportunity to give oral evidence to the Committee on this inquiry on 9 July, and make this submission in support of the evidence given at that session.

Summary

Solicitors have adapted in response to the pandemic to ensure that the wheels of justice continue to turn throughout this crisis.
Virtual proceedings have provided varied experiences for different types of hearing, and more data is needed to assess the true impact of technology on justice outcomes.
The growing backlog can be resolved, and we welcome the opening of Nightingale Courts. However, we oppose extended court hours in principle.
Jury trial is the fundamental bedrock of our system of criminal justice and ensures public involvement and confidence in it.

Virtual proceedings

So far, the experience of digital justice has been variable and different for different types of hearings. We’ve heard that in some areas the courts in England and Wales have held up well including in the High Court and commercial courts due to the investment in technology for these courts before the crisis. On other types of hearings, we’re not aware as such of any specific regional variation, but there has been reports of inconsistencies between courts on how a remote hearing is conducted but believe this is due to the discretion of individual judges. Clearer and consistent comms from local courts would help court users and the public.
There is a risk that we can slip into digital as the norm without establishing whether there is an impact on justice outcomes. It is vitally important that this ‘new normal’ is not accepted as a permanent way of accessing and upholding justice in the future unless careful monitoring, due process and robust evaluation is carried out.
Purely admin hearings have proved successful so far. We have particular concerns, however, regarding the use of remote hearings in more complex cases, especially those involving unrepresented litigants and those involving vulnerable people, where their experiences can be disconcerting. Courts have a role in assessing the ability of the parties to participate in the proceedings and to identify and address vulnerabilities and needs.
This is far more difficult when hearings are conducted remotely. For example, in emotive cases like care proceedings, there can be a real need for an individual to have face to face interaction with their solicitor. If this is done remotely taking instructions or giving legal advice can present many challenges.
We’ve also heard repeated complaints from members that either information isn’t available until the last minute or it is unclear for example what digital platform is being used.
Some hearings are being adjourned on less than 24 hours’ notice, after front-loaded costs have already been incurred. It is important that information is provided in a timely manner.
Being able to take legal advice or give instructions mid-trial can be fundamental to ensure the rule of law. So far, the indication is that it can be done but doesn’t compare to being physically present with solicitor in a court room. There may also be issues with confidentiality, particularly if a client’s only option is to be in a public space before, during and after the hearing.
It’s vital for data to be collected to analyse fully the impact on access to justice. There are many considerations – access to technology (hardware and software), access to legal advice, the ability to understand what is going on in a case when you are physically detached from it. There’s risk of digital exclusion and concern for vulnerable groups such as older people.
HMCTS have published data which shows the use of audio and video tech by date, but it does not break it down by place or court, nor the type of platform used or whether a hearing actually went ahead. We would like to see clearer data.

Physical proceedings and jury trials

Normally it would be very difficult to organise physical distancing in courts as it is not known how full a court would be. It also depends on the courts themselves, how large or small they are, how adaptable or modern they are. For juries, there will need to be consideration in advance of how the parties are positioned in a court room. There are other safety measures to consider such as ensuring rigorous standards of hygiene and cleanliness.
This was initially a huge problem and we had reports of no soap or hand sanitizer in court buildings, no hot water. HMCTS has a new cleaning contractor now, and have upped their communications with the profession. As with anything in the court estate there is going to be inconsistencies between courts and unsatisfactory reports should be dealt with as a matter of urgency.
There is also concern at the potential for localised outbreaks in particular courts, which we have seen in August 2020 at Manchester Crown Court.
Information on which courts are open or shut has been published. The Law Society produced a map which pinned every court and showed what their status was during lockdown.
Jury trials are a fundamental part of the rule of law and our criminal justice system. Jury trial is the fundamental bedrock of our system of criminal justice and ensures public involvement and confidence in it.
We are opposed to a model where jury trials would be replaced by a judge plus two others. Judges can become ‘case hardened’ and tend to be much easier to persuade that someone is guilty. Juries come to each case with an open mind and hear the evidence, and then make their collective decision without a long experience in dealing with criminals.

Progress of cases

While the backlog has grown during the coronavirus crisis, there was a backlog already. Prior to coronavirus, there were courts sitting idle while the MoJ restricted judicial sitting hours, and this is part of what led to the backlog building up. Before looking at extended hours, the MoJ must ensure that it is making maximum use of normal court hours, with no restrictions on judges sitting while there are court rooms (real, virtual or Nightingale) available where they could be working.
It is too early to tell if there will be an increase in the number of litigants in person in the long term. But there is concern that there will be people struggling to access justice, and this will be worse if struggling legal aid firms are forced to close if they are unable to recover financially from the crisis.
We are supportive of Nightingale Courts. We believe that the government can build court capacity by utilising unused public buildings, including the court buildings which have been closed but have remained unsold. We have welcomed the opening of a number of these courts. However, they must be used to supplement a court estate which works as close to full capacity as possible, and we are aware of reports that some Nightingale Courts have had few cases listed.
The Law Society has created an interactive map which shows the location of open, and proposed, Nightingale Courts as well as the type of work being held in these venues.
As part of their recovery plan HMCTS is considering extended operating hours to address the growing backlogs across the different jurisdictions. Our position remains the same as when HMCTS proposed extended operating hours (Flexible Operating Hours pilots) as part of its reform programme. We do not think they are a workable or cost-effective approach. Extended hours create financial and practical difficulties and pose risks for the parties and professionals involved. If they are imposed, our members must be fully compensated for any and all extra costs they will incur as a result.
We have representatives sitting on the judiciary led working groups which are reviewing the extended operating hours proposals, and we’re awaiting finalised reports. If the Government are to insist on extended hours, then they should only be explored as part of an effort to clear the backlog of cases from coronavirus, and it should be done in meaningful consultation with solicitors and barristers, ensuring proper remuneration and include mitigations to address negative diversity impacts.
We are concerned about the safety of court users when leaving buildings at night, in particular those who may be involved in emotive cases, such as family cases, where proceedings can exacerbate already tense relations between parties. Junior members of the profession may be adversely affected by extended hours as they could be asked to cover early, late or weekend sittings.
There could be a role for extended hours to deal with unrepresented defendants for example in minor traffic matters, fare evasion, TV licensing cases, leaving the normal court hours free to handle work where parties are represented. This would increase capacity without having any negative impact on our members.

Member safety
The safety and health of our members and all court users, including staff, continues to be of paramount concern. Most, if not all, of the courts that were closed during the lockdown have now reopened and we have asked members to continue observing social distancing rules.
There is concern that courts are getting busier. It is difficult in many court buildings to maintain social distancing in public areas. While some buildings are more spacious and may have better ventilation, for most courts this is not the case and the risk of contracting Covid-19 is still very real, again as demonstrated by the recent outbreak in Manchester Crown Court.
We have advised our members to request copies of a court’s risk assessment which allows them to ensure the courts apply the guidelines effectively and to raise concerns if that is not happening. We do, however, have concerns that the risk assessments aren’t being made readily available, in some circumstance’s days after initial requests. We continue to encourage HMCTS to ensure effective comms systems are in place for key information to be communicated to all court users.

Support for legal aid firms

The Government’s announcement that 100 courts will receive £142 million to digitally upgrade services as part of a £5 billion coronavirus recovery plan is welcomed, but improving legal aid and ensuring more people are represented in court will also be vital in ensuring the courts run as efficiently as possible and clearing the backlogs.
Ensuring that people have access to early legal advice will also help to reduce the backlog, as it would point people towards mediation and other ways of resolving dispute beyond the courtroom. The Ministry of Justice must press ahead with it’s early advice pilot and fully assess the potential benefits.

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