Back in June 2020, MPs gathered to question the government on access to justice, as the number of outstanding court cases across England and Wales topped half a million. The backlog of cases was, in fact, already large even before the pandemic struck. But it is no secret that the coronavirus pandemic and new social distancing measures have added immense pressure on Her Majesty’s Courts and Tribunals Service (HMCTS). The courts often rely on in-person hearings and jury trials to progress cases, with these taking place in small courtrooms. Legal evidence and documentation are also still widely physical – requiring paper bundles, USB sticks and DVDs to exchange hands safely and securely.

HMCTS weekly management information during coronavirus (this analysis is based on the March to May 2020 figures) has revealed some stark contrasts between how different courts have been coping with workloads during the pandemic. These differences are intrinsically linked to where the courts stand on their digital transformation journeys. A £1 billion investment made by HMCTS into a reform program to digitise courts is already under way, but it is slow progress – and readiness varies from one type of court to another. Here we’ll examine each in turn.

The crown courts and magistrates' courts

The greatest increase in outstanding cases has occurred in the magistrates courts, with cases rising from 406,610 pre-COVID to 483,678 on 17 May – an increase of 19%. This is a sizeable increase compared to the rise in outstanding cases in the crown courts, which has gone from 39,214 pre-COVID to 40,615 on 17 May – a rise of only 3.6%. Both courts experienced a drop in weekly case receipts by around 40-50% compared to the pre-COVID average, so this cannot explain the difference.

The disparity has occurred because the crown court was in a better position to operate remotely with pre-existing digital practices. The 3.6% rise in outstanding cases is largely because of difficulties conducting jury trials, due to social distancing measures. But sentencing hearings, bail applications, and applications to extend custody time limits have all been conducted remotely, including pre-trial preparation hearings and further case management hearings. One main reason the crown courts have been able to continue all of these operations remotely is because of the implementation of the Crown Court Digital Case System (CCDCS), a secure cloud-based bundle sharing platform which was rolled out nationwide in 2016.

The civil courts

The civil courts have been receiving significantly fewer cases, down to 5,067 in the week preceding 24 May from a 38,521 pre-COVID baseline. Hearings adjourned due to the pandemic rose to a maximum of 3,922 on 5 April, but subsequently dropped down to 1,433 by 24 May, as the virtual hearings employed to clear the backlog became more widely used.

A remote hearings protocol for the civil courts was published on 22 March, confirming that remote hearings should be used when possible, using electronic bundles. Many civil courts have been using cloud-based document management systems such as Adobe Acrobat and PDF Expert. However, these were not designed for the justice system, and the E-filing service is still very much in pilot stages, and pre-pandemic was only in frequent use in the Rolls Building Courts and the Queen’s Bench Division in London.

The Civil Money Claims Online service launched in March 2018 has been fairly successful. By the end of April 2019, over 62,000 claims had been issued using this system and more than £6.36 million taken in court fees. But this service still has a long way to go, to enable the uploading of digital evidence, and enable further online negotiation and settlement.

Public family law

The number of weekly cases received in public family law has risen by 15%, from a pre-COVID baseline of 361 to 416 on 24 May. Yet the number of outstanding cases has only risen by 10% from an average of 12,295 to 13,504 in the same timeframe. COVID has not therefore caused a significant backlog.

Public family law cases have been prioritised as child welfare cannot be put on hold, with many hearings taking place remotely both over the phone and via video calls. Many local authorities and family courts have been quick to adopt secure cloud-based bundle sharing during the pandemic, to support the documentation and evidence required to enable these remote hearings. Much of this adoption was already under way, with many judges demanding that hearings move to a paperless model even before the pandemic. This was further reinforced in early March this year, when Mr Justice Mostyn issued an e-bundles protocol for the Financial Remedies Courts.

While remote hearings have been effective, some remote justice proceedings have been criticised as unable to deliver adequate justice to court users who are deemed vulnerable. This has led to an increased use of hybrid hearings. This involves trial preparation taking place remotely using a cloud-based document and evidence management solution, but gives an option for members of the trial to join the hearing either remotely or in person. This has been successful in allowing vulnerable persons to physically attend court while reducing the number of people in the courtroom and therefore enabling social distancing.

Digital transformation must accelerate

As we emerge from the pandemic, it’s clear that what has set different courts apart from one another is their level of digitisation.

Magistrates’ courts have only been able to cope with the bare minimum and need to reform more quickly. Sometimes magistrates lack access to hardware and therefore have an inability to work remotely. The civil courts have stayed afloat by adopting generic video conferencing services, and PDF tools such as Adobe Acrobat and PDF Expert to enable remote hearings, but have encountered many teething problems along the way. Issues with logging in and confusion between various video conferencing platforms, unsecure redaction tools, and complications with pagination when inserting late documents are just a few examples of small problems that can disrupt cases conducted virtually. The introduction of the Cloud Video Platform aims to standardise the virtual element of hearings, bringing consistency to this aspect of the hearing process, but this does not address the issues associated with document management. There are learnings to be drawn from the effectiveness of the Crown Courts Digital Case System, and the quick adoption of similar tools by public family courts.

The distinction between old and new is no longer between paper and PDF, or even between PDF and cloud-based document management systems. The distinction now lies in the approach to the latter - between using generic cloud-based document management systems, and cloud-based systems specifically built for justice processes. Crucially, systems like the CCDCS that have been built specifically for the users offer not only the flexibility to be accessed remotely, but have the necessary granular access controls for different parties and audit trails for security. It is all very well adopting a ‘vision-based’ approach and looking at what we see court technology enabling in five or ten years, but court backlogs and the frustrations of remote working are a very immediate issue that must be addressed now. We must partner our vision for the future with a ‘reality-based’ approach when considering new technology for the needs of judges, barristers, magistrates and lawyers, and we must act quickly.

Published on 20/11/2020