20 February 2018

Modernising the courts: digital access to justice

With court closures on the agenda, how does this impact the access to justice debate for the vulnerable, asks Francesca Kaye of Russell-Cooke.

The provision of a civil justice system is seen as part of the framework of a civilised society. In times of austerity such fundamental rights must be carefully guarded.  Against that background the announcement on 18 January that the Government was consulting on the closure of eight more courts has been met with concern. The proposed closures are part of the ongoing modernisation programme intended to deliver a justice system "fit for the future”. That modernisation includes the development of online solutions, digitisation and the consolidation of the court and tribunal estate.

Re-energised access to justice debate

The proposed closures have re-energised the debate about what is access to justice in a modern society.  They have also provoked the legal profession’s natural caution and resistance to change. Many of the court buildings that have been closed over the last few years were historic in nature and had been poorly maintained.  For reasons of history and consolidation there were often several buildings close together providing similar but different court and tribunal services.  They provided inflexible and/or limited space with limitations on the ability to modernise them.  Many of those buildings were in prime positions within towns and cities. HMCTS reached agreement with the Treasury that the monies raised from the sale of those sites could be used to help fund the modernisation programme. Whilst it is true that there are some court buildings that have yet to be sold following previous court closures, that is not of itself a reason to reject further consolidation. The issues are far more complex.

County court system collapse

Significant budget cuts leading to reduced staffing in many county courts over a number of years have affected the provision of court services.  At the same time changes in court rules have resulted in an increased work load including higher value cases being routinely transferred to or started in the County Court without any increase in resourcing.  This has lead to increased delays in listing and processing paperwork.  The county court system is not just creaking around the edges but is at the point of collapse.

Community impact

The closure of any court at any time has an impact on its local community, those who work at the court and the local users of that court.  But it does not automatically follow that all court closures will result in reduced access to justice and a poorer provision of services to the local community. It depends on what happens next. In many cases the court is simply merged into another court and it is only the physical building that is gone.  Sometimes a new modern hub or court centre receives the work from several courts. In other cases the work is redistributed around a number of other courts. This can present difficulties for some of the most vulnerable in society where travelling to another court may not be straightforward. This problem is then exacerbated if the court to which the work has been transferred is then itself closed or threatened with closure leaving a comparatively large community with no easy access to a county court.  Previous or impending closure of County Courts in South and West London without building a new court centre is leaving a large swathe of London with no easy access to a county court and creates access to justice issues for some of the most vulnerable in society.

Online courts

With the proposed development of online courts, improved digitisation and ultimately a move towards paperless courts it is anticipated that the need for the public to be present physically in a court building will reduce.  That will go some way to addressing these issues provided that online access is properly resourced and appropriate steps are taken to guard against the risk of exclusion for those most vulnerable and least able to access online resources. However, whilst more investment is promised there is currently a mismatch in timing between the closures of courts and the development and delivery of the modernisation proposed.  Many of the proposed improvements, the online court, the digitisation are yet to be fully developed or trialled.  We are some time away from the delivery of an online court and even the delivery of electronic files and electronic filing remains a challenge.

Not at any cost

Access to justice is a broad concept not limited to whether a court building is open or closed.  Change is always a challenge but we are now at risk that our fundamental rights to access to justice, not just for the vulnerable but for the whole of society, are likely to be significantly reduced unless the modernisation process accelerates to meet the shortfalls created by the reduction in the traditional provision of civil justice. We need to accept the need for change in how society delivers civil justice but not at any cost.

Francesca Kaye is a partner in the litigation team at London law firm Russell-Cooke