Will this crisis change the way the Courts work permanently?
For a number of years there has been an organized effort to digitalize the court and tribunal system in order to reduce avoidable delays and shave off additional costs.
However, as often happens with positive ideas, the digitalization process of the judicial system faced multiple challenges such as safe management of personal data, access to technology, reliability and many others. Limited incentive combined with difficult challenges lead to a slow progress in digitalization efforts.
The coronavirus outbreak presented an unprecedented opportunity for development where the only option for many businesses was to work from home and find innovative ways of dealing with the challenges to their business needs.
With the safety of staff and general public in mind, courts and law firms scurried to organize working from home. They continued their work on priority cases which could not be heard remotely, but that represented a very small portion of the cases. During the first month of the pandemic some 80% of cases seen in the UK were reportedly conducted fully online.
The law society set up a guide displaying which courts remain open and the restrictions under which they operate. The government quickly released specific guidelines for legal professionals, such as the Covid-19 Temporary Practice Directions and the Coronavirus Advice and Guidance. The Supreme Court was moved to an entirely online basis, along with many others around the world.
The lockdown forced increased use of telephone, video and other digital technology in the legal system in order to continue with as many hearings and joint settlement meetings as possible. The increased use of online files, E-bundles and sharing software enabled a relatively smooth transition in some areas of law.
Other areas, such as criminal and family law faced more complicated issues. With privacy and reliability of evidence being far more difficult to guarantee in an online environment, legal professionals in these areas have reportedly found the transition difficult.
An extreme example is a mother having to give evidence in a family law case from a garden shed, in order to avoid her children overhearing important information regarding their future. Many legal professionals have expressed that in certain areas of law, the forced use of digital technology is a borderline breach of the right to fair trial.
In March, prior to the lockdown, HM Courts and Tribunals Service Statistics reported a backlog in the region of 300,000 cases to be heard in Magistrates Courts and approximately 40,000 cases to be heard in the Crown Court. By the end of July these numbers skyrocketed to nearly 500,000 cases in magistrates and 42,000 cases in Crown courts.
The government has addressed the backlog with the creation of the “Nightingale Courts”, a reference to the temporary hospitals built in response to the pandemic. Whilst these courts are meant to be temporary, the need for their creation is indicative of underlying issues with funding in the justice system and court closures in the past couple of years.
While many businesses are finding work from home to be even more productive than the old business model, and have already confirmed that they will work towards keeping parts of their business working remotely, it remains unclear whether the lockdown will result in further court closures in the United Kingdom.
It is still early to tell whether any of the temporary changes implemented during the lockdown will remain once all restrictions are lifted and life goes back to normal.
We have seen the introduction of many efficacies which are likely to remain as a part of our legal system going forward. However, it is important that we assess the transition closely and ensure that the efficacies do not result in a substandard approach to justice.
Posted on Sep 15th, 2020 by Lyons Davidson