The ambitious billion-pound courts modernisation programme known as HMCTS Reform continues to grapple with the process of turning a justice system designed for the paper-based world of the 19th century into one fit for the digital world of the 21st century. The programme is being rolled out in stages, using agile development based on continual user feedback, including a series of “roadshows”, one of which recently took place at the Royal Courts of Justice in London. Paul Magrath of ICLR was there.

The great hall in the Royal Courts of Justice has a cathedral-like splendour by day, but on a freezing midwinter evening its dim chandeliers failed to dispel the cavernous gloom. It was here that a crowd of around a hundred court users gathered on the evening of Monday 11 December, to hear about the latest developments in Her Majesty’s Courts and Tribunals Service (HMCTS) Reform programme. Though fortified with welcoming tea and coffee, most of us kept our overcoats on as we huddled around tables arranged in front of a big screen where Susan Ackland-Hood, CEO of HMCTS, made a presentation about progress so far and the three main topics about which our feedback was sought this evening.

Earlier, we’d had the chance to see demonstrations from a number of live projects including:

The one I was particularly interested to see was the online applications for divorce. This demonstration showed how a divorce petition could be filed online going through a simple form.

It asks, for example, if the marriage has “irretrievably broken down”, which reflects the language of section 1 of the Matrimonial Causes Act 1973, but then adds in brackets “(it can’t be saved)” which may a lot easier for most people to understand. The next screen invites the petitioner to identify the factual basis demonstrating the irretrievable breakdown, eg behaviour, adultery, separation etc. It asks the date of the marriage and, if that is less than 12 months previous to the current date, it will not accept the petition. There are boxes to enter the names of husband or wife, and a mechanism for uploading copies of, eg the marriage certificate.

It’s all very simple, but it’s designed to replace an uncontested procedure that is already done on paper. It’s certainly not “divorce at the touch of a button” as some critics have suggested. If a divorce is defended (ie opposed by the other party), the online process still allows the petitioner and respondent to track the case online, though there may then need to be live hearings to determine questions of fact and evidence.

There were three critical issues on which Susan Ackland-Hood gave her presentation, and we were then invited to discuss around each table and give feedback to the management team:

Virtual Hearings

This is something a lot of people are worried about. HMCTS say “We will not mandate virtual hearings. These will only take place where the court or tribunal considers that it is in the interests of justice – for example they won’t be used for criminal trials.” Instead, what seems to be envisaged is the use of virtual (or video conferencing) hearings for preliminary or administrative hearings, rather than actual trials.

For example, in October the Virtual Hearings (VH) project ran proof of concept tests within Immigration and Asylum Tribunal Case Management Hearings, where eight hearings were successfully conducted using VH technology. However, on the final test day, four actual hearings were conducted using full VH technology, involving legal professionals and three leadership judges. Feedback from the judges (as reported by HMCTS) seemed positive, especially as to the benefits of VH for case management hearings.

The response of those attending the event was more mixed. Most thought VH would be good for preliminary or case management hearings; but were less sure about anything involving the live human evidence giving. That’s because there are ways of assessing evidence given in person in a live environment which cannot be matched in a remote set-up.

Flexible Operating Hours

HMCTS say “we have not made any decision about whether or not flexible operating hours will be rolled out, and our business case for reform does not depend on having flexible hours”. Despite this, the very prospect of FOH, as it is usually abbreviated, has caused consternation among lawyers, in particular.

The general idea behind FOH is to make better use of court buildings and facilities to provide a justice service outside traditional court hours. It would mean courts starting at 8 am instead of 10, and finishing at 7.30 or 8 pm instead of 4.30. Work would be divided between early and late sessions, so no one would need to work the full range of hours.

While starting early or finishing late might not be inconvenient for a party or witness, or member of the court staff, it would add to the already extended hours of litigation lawyers, who spend time before and after court sessions working on papers, meeting clients or preparing for future hearings. In addition, they might have to juggle child care arrangements, travel and social life to fit around what would inevitably become a longer working day.

HMCTS is aware of these and other objections. It has already postponed the pilot scheme it had planned earlier this year, in order to put in place a really robust evaluation process. But it insists on the need to make a decision about FOH on the basis of evidence, and accepts that if the evidence shows that it wouldn’t work, it will not implement FOH. In a sense, it is “putting the legal profession to proof”.

The view of the delegates seemed to be that flexibility in the working day might suit some lawyers, but the chances of managing court appearances to avoid doing both early and late sessions were low, especially with the current unreliable listing arrangements, and the main benefit of FOH would be in maximising the use of courts and judicial resources. There was also a view that, if introduced, hearings outside the traditional 10–4.30 court day would work best for case management or costs hearings, rather than for substantive trials.

3. Scheduling and Listing

“Listing and the deployment of judges are, and will remain, judicial functions” say HMCTS. The project is not looking at changing policies, so much as making the system more responsive and allowing “better, data-supported decisions on how heavily to list to avoid wasting the time either of judges, or of those coming to court.”

As with FOH, the intention is to make better use of expensive resources like courts and judges. For lawyers, however, the benefits of this project are much more obvious. One often hears complaints about cases being adjourned at short notice, with parties and witnesses, sometimes victims of crime, having to be turned away and made to wait, sometimes months, for another hearing day. HMCTS say they are aware that “late publication of lists, and clashes between cases being heard in different courts, can cause problems for legal professionals.”

The general view of the users present was that listing was something that could be improved with better use of data and, say, electronic access to the working diaries of lawyers and others affected. The days when clerks had to troop across the road to the law courts for what was in effect a listing hearing, or everyone bring their diaries to a case management hearing, should be long gone. If hearings were needed, they could be done virtually.

Another observation was that better listing would either obviate the need for longer court hours, or make them a lot more effective, and that it might make better sense to postpone the FOH pilot until the listing had been brought up to date and into the digital era.

Conclusion

Though one might be sceptical of the benefits of certain aspects of the Reform programme, there’s no denying the breadth of the issues it is tackling in what amounts to a complete overhaul of the administration of justice. The fact that such root and branch reform is being conducted within the context of a continuous feedback loop can only be a good thing. A project which wants to introduce flexibility and responsiveness into the system must itself be flexible and responsive as it develops. These roadshows are proof of that. If you have the chance to get involved, it is well worth doing so.

Paul Magrath is head of product development at the Incorporated Council of Law Reporting for England and Wales (ICLR) and a member of the Transparency Project.