Since 2016, the HMCTS Courts Reform Programme has sought to move court business online and introduce virtual courts where possible. There has been slow and expensive progress; largely in divorce, civil money claims and probate. The COVID-19 crisis has accelerated that process in the most extraordinary way. More may have been ‘achieved’ in the past three weeks than the past five years.

Nature of the challenge

The Coronavirus Act 2020 has provided a statutory basis to extend the circumstances in which remote (audio and visual) hearings can take place and to stipulate the minimum required level of participation by parties (ss 53-57, Schs 23-27 and associated Practice Directions). The responsibility for keeping the courts operating has fallen on the judiciary and court staff. Despite struggling with inadequate equipment and insufficient training, many judges continue to sit. At the time of writing, court work was being consolidated into 160 ‘priority’ court and tribunal buildings kept open for essential face-to-face hearings (42% of the court estate in England and Wales) and 116 staffed courts; with 75 suspended. In the area of crime, defendants are still being sentenced and case management, bail and mental health hearings continue to take place. Jury trials are paused, and time will tell how that aspect will be addressed. In the civil and family courts, hearings are to be carried out remotely wherever possible.

The nature of the challenge, of course, is to keep the justice system going while minimising derogation from due process and enabling defendants on the link to participate in a meaningful way to facilitate open justice. Ways are being sought, with varying levels of success, to enable the press (and legal bloggers) to report, and for victims of crime and the families of defendants to view proceedings. Wider public access remains problematic, although information-sharing by judges and lawyers on how remote hearings are working in practice has been largely positive so far. (Proponent of online court reform Professor Richard Susskind is collating worldwide examples of this on Until the Transparency Project (TP), which is monitoring the impact of remote justice on the family courts, published a striking guest blog post by Celia Kitzinger (co-director of the Coma and Disorders of Consciousness Research Centre and Honorary Professor at Cardiff University School of Law and Politics) about the experience of ‘Sarah’, whose father’s case was heard in the much-vaunted first Court of Protection hearing by video link, we had heard little about the experience from the families’ perspective. (See also the survey launched by TP on 7 April canvassing views on how remote family court hearings are working for families.)

Recap: the Courts Reform Programme

Following the report by Lord Justice Briggs into Civil Courts Structure in 2016, far wider reforms were launched. A joint statement from the Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals announced that ‘The reforms will [combine]… our respected traditions with the enabling power of technology. The vision is to modernise and upgrade our justice system so that it works even better for everyone…’ (Transforming our Justice System, September 2016).

To fund the Reform programme a budget of £1bn was initially promised, funded in part by the sale of courts buildings deemed unsuitable or too expensive to alter or maintain. The first phase resulted in the closure of 217 courts, ‘focused on courts with low levels of usage’ (Committee of Public Accounts, Transforming Courts and Tribunals, Fifty-sixth Report of Session 2017-19, HC 976, (Cm 9702), HC 27, Second Session 5 November 2019, para 12, p 11, Q97; C&AG’s Report para 10). As of November 2019, the House of Commons Justice Committee reported that ‘between 2010 and 2018, half of magistrates’ courts closed, along with more than a third of all county courts’… creating ‘alarming difficulties for many court users’ (House of Commons Justice Committee, Court and Tribunal Reforms, Second Report of Session 2019, 30 October 2019). The closures to date represent 50% of the entire court estate. By the end of March 2019, £540m had been reportedly spent on reform by HMCTS; 127 courts and tribunals had closed since the start of reform, with a further 12 still due to close while reported proceeds from property sales were £124m (Transforming courts and tribunals – a progress update, September 2019, National Audit Office (NAO)).

The NAO concluded that the Courts Reforms programme had not clearly demonstrated the link between where savings come from and the reforms it has introduced, and that HMCTS should better demonstrate the impact of reforms on users of the justice system. Despite this, a new phase is (or was) scheduled to begin in May 2020. In evidence to the House of Commons Public Accounts Committee the Ministry of Justice explained that a full evaluation of the reforms would take ‘place at the end of the reform programme, while an interim evaluation would be completed by 2021’ (emphasis added, Courts and Tribunals: progress review, HC 27, 5 November 2019, para 18, p 12).

For and against: how to test the reforms?

Proponents of the reforms cite a vision of justice in the internet age that brings convenience, savings to the public purse, and better security: if a case can be heard remotely, why do prosecution and defence counsel need to traipse halfway across the country? Fewer prisoners would need to be brought to and from court, and witnesses can give evidence without having to travel many miles to their nearest court, waiting for hours until they are called.

Detractors suggest that the entire enterprise is about saving money, driven by a huge reduction in government spending on HMCTS since 2010 (Criminal Courts, Performance tracker 2019, Institute for Government). There are concerns about the adverse impact on impecunious and vulnerable members of society who are required to travel long distances to court, and that the most far reaching reform of the justice system in a century has been undertaken without a Royal Commission or Law Commission review. There has been too little consultation, they say, whilst HMCTS has spent huge sums on change management consultants, social media campaigns, and road shows that obscure the absence of independent research and substance.

There is also the risk of implementation by creep. Every opportunity to advance the objectives has been seized in a rolling programme of assimilation. We are, detractors say, sleep walking towards a reform of stunning magnitude without proper research.

The government’s Courts and Tribunals (Online Procedure) Bill was introduced in the Lords in May 2019, and whilst these reforms aim to provide greater access in the online context, they will inevitably result in less access to physical courts, which, in my view, will have an adverse impact on access to justice, public perceptions of justice, and to the rule of law itself.

The debate may have been paused during the Coronavirus crisis, in which necessity has become the mother of invention, but progress and developments made now will inform future decisions on how far the court closure programme should go, and how courts are replaced.

Valuing the physical interface

As Churchill said: ‘We make our buildings and our buildings make us.’ The architecture of public buildings makes this easy to comprehend; in the political sphere, the Houses of Parliament and in the law, the Royal Courts of Justice, the Supreme Court and the Old Bailey.

When Grenfell Tower burned, people cried because of the human tragedy. When Notre Dame burned, people mourned the destruction of a building which represented the intangible cultural heritage of a nation. In the context of law, the question has to be asked – are we just discussing a sentimental attachment to buildings of beauty? Indeed, does it matter if the Supreme Court is housed in a warehouse or at The Guildhall, Westminster?

The courts have long been a public forum for punishment, retribution, restoration and holding individuals, business and the state to account. That process and the formal gathering together of the protagonists in public, in buildings created for that purpose, are part of the cultural as well as legal and political heritage of this country. Whilst many courthouses are clearly in need of expensive remedial work, and possibly not fit for purpose, there is an understandable sense of threat from new technologies promoting remote access to virtual courts.

How much the court landscape has changed may be inferred from the recently published Court and Tribunal Design Guide (HMCTS 2019), which proposes a much-diminished set of design and space standards for future courts. By contrast, The Court Standards and Design Guide, (HMCS 2010) specified that courts should be local and that they ought to be significant buildings whose design should promote their function and the aspiration for justice.

The question of open justice: access

This revisionist outlook triggers vital questions: How much does it matter if all the participants are not physically present in one place, ie the courtroom? What is the impact of deploying a hearing over Skype? What does the physical environment of the courtroom add to the experience and perceptions of quality of justice?

Lawyers have written extensively assessing the impact of the pandemic on open justice, ie the ability to participate, observe and access. See, for example, Thomas de la Mare QC’s examination of civil justice in the coronavirus era, in which he also takes care to note that ‘the role and exclusivity of the physical courtroom has been embedded as a cardinal principle or assumption… and protected as the fulcrum of English open justice’.

Socio-legal academics are also engaged and have provided context and perspectives on the recent reforms. See, for instance, Linda Mulcahy and Emma Rowden’s book The Democratic Courthouse: A Modern History of Design, Due Process and Dignity (Routledge: 2019; in particular, pp 5-10, ‘Designing for democracy’, provides a thorough socio-legal analysis of the courts of the 1970s to the present).

Certainly, the principle of open justice requires observation of the rule of law in action. Without fair, equal access for all, the rule of law is diminished. As an architect examining the implications of the courts reform programme, I have long studied the physical environment of our court buildings, and the risks of their loss. These are not just spaces where people go to be tried, give evidence or work. They perform a far more complex role. They express the aspiration for justice. Their architectural form not only follows function but is a physical interface between the rule of law and the society it serves.

We still have much to learn about the effects of virtual courts on communication of, and access to, justice. Assessment of the extent to which the proposed courts reforms are either detrimental or beneficial to access to justice, on an independent academic and interdisciplinary basis, has barely begun.

Window of opportunity

The future design of the courts is already here, and the form they will take is becoming clearer by the day. The COVID-19 pandemic has precipitated a breach in the current paradigm and courts of the digital age are becoming reality as we watch.

This provides us with a small window of opportunity. We must produce a sound body of evidence on which to base informed decisions for the future of digital justice and courts reform, to take this chance to reflect on the way in which our court buildings function beyond a physical form, and how this is experienced by every participant in the justice system.