At the invitation of one of the parties involved, I was recently sent a link to a virtual High Court hearing. After logging in remotely, and carefully ensuring that my microphone stayed on mute, the camera revealed a row of barristers with their instructing solicitors and the parties in dispute sitting impassively behind them. Their collective lack of facial response was perhaps inevitable since everyone, save for the judge, wore masks until they were invited to speak.
The case was being held in the Rolls Building, London’s judicial court complex that houses the commercial and property business of the Chancery Division, the Admiralty Court, Commercial Court, and the Technology and Construction Court.
Completed two years behind schedule at a cost of £300m, The Queen officially opened the newly renovated Rolls Building in October 2011. It was then hailed as the centrepiece of the UK’s ambitions to become the world centre of dispute resolution. A laudable ambition, it was widely seen as a huge advertisement for our legal system.
Since rebranded as the Business and Property Courts of England and Wales, the Rolls Building is now showing signs of age. Among its 31 courts, including three super courts for high-value disputes, the case I watched was held in one of the smaller courtrooms: low ceiling, stripped lighting and fairly cramped with cardboard boxes piled high on either side of the judge, and on the desk in front him.
When asked to give evidence from the witness box, one of the parties tentatively asked: ‘Excuse me, my Lord, but I can’t see you. Could you please move the boxes?’ Without hesitation, the judge complied and the case continued.
Off the record, judicial complaints about the Rolls Building are fairly common. ‘You can’t even get a printer to print out,’ says one judge. ‘If your printer breaks, you have to ring someone who never answers, until you’re eventually told, “Go back to your chambers and sort it out.”’ Such experiences perhaps explain why the 108-strong High Court has been 10-15 judges short of its full complement for most of the past five years.
Another judge notes that things are worse elsewhere: ‘Infrastructure is less of a consideration for judges sitting in the Rolls Building which, despite its deficiencies, is a modern court building. But up and down the country, a lot of judges work in antiquated buildings, often with poor working conditions. Of course, there’s a financial aspect because resources for modernising court buildings and maintaining them are scarce. However, the conditions of judges, in terms of their working environment, need to be addressed in order to attract people of sufficient quality to apply.’
The evidence is more than anecdotal. Reflecting the visible deterioration of many court buildings, a judicial attitude survey published by UCL in 2017 showed that 75 per cent of judges in England and Wales thought working conditions had worsened.
As elsewhere, Covid-19 has wreaked further havoc on the legal system, exacerbating an already serious problem. Around 50,000 crown court cases are now waiting to be heard, of which 33,000 will involve full trials. As a measure of what that means in practice, the crown courts managed to complete only 12,000 trials last year.
With the system in logjam, some cases are currently being listed into 2023 for trials relating to serious offences. Meanwhile judges are taking Covid into account by passing shorter sentences.
To counter the loss of public confidence in the criminal justice system, the Lord Chief Justice, Sir Ian Burnett, has called for increased funding. “There must be sufficient resources to enable the courts and tribunals to work to full capacity … otherwise backlogs [of cases] will be unsustainable,” he said recently.
So can technology come to the rescue? In 2016 HM Courts & Tribunals Service started to implement a £1bn court reform programme, which included a video-conferencing tool, the Cloud Video Platform (CVP), that provides a dedicated private conference area, allowing criminal lawyers to speak with their clients without visiting prison.
Further testing and adoption of video technology was planned to roll out until 2022, but thanks to the pandemic, CVP had to be up and running in 10 weeks for both the criminal and civil courts. Only a restricted number of physical video links are allowed – hence I received an approved link to the High Court civil hearing. The open justice principle, where anyone can sit in a courtroom’s public gallery and watch justice unfold, has been deemed a necessary sacrifice.
Inevitably, CVP has been under-resourced with insufficient meeting rooms leading to some criminal hearings going ahead without the defendant being present. Criminal trials use social distancing, sometimes involving a second courtroom linked by technology, which has created further backlogs.
In the civil arena, things are not much better. According to Professor Richard Susskind, the lord chief justice’s IT adviser, Zoom hearings have not fundamentally transformed the justice system. He argues that the courts “must use technology to move beyond their primary decision-making function.”
In a virtual address at the recent International Bar Association’s annual conference, he said that we should recognise “that a video hearing is not a fundamental transformation or shift in paradigm, as some people want to say. Even if we make judges more accessible online that doesn’t mean people understand their rights and entitlements; that doesn’t mean people can make their own legal arguments. I believe in a digital society a court service – the state in fact – has to go further than simply offering its primary judicial function.”
He added: “The state should be helping parties online understand their rights and obligations; understand the options available to them. The state should be online providing tools to help them organise their evidence to formulate and present their arguments.”
It is a utopian vision, far removed from the Covid legacy of enormous debt which faces many Western governments, and their taxpayers, after the devastating financial impact of lockdowns and extreme measures taken to battle the pandemic.
In his recent spending review, chancellor Rishi Sunak showed that he has been listening to those who have been clamouring for more funding. He announced an increase in justice spending for 2021/22, which means the Ministry of Justice will receive a 3.3% annual real terms increase. Core resource funding will go up by £145m in 2021/22 and the capital budget by £237m in cash terms.
The chancellor further pledged £337m in extra funding for the criminal justice system, part of which will reduce the Crown Court backlogs caused by Covid-19. But he made no mention of the £1bn court modernisation programme.
As legal systems in multiple jurisdictions struggle to address the twin challenges of rapid technological change and the disruption caused by Covid-19, Britain is no exception. But for the English legal system to remain a jewel in the crown of what UK plc has to offer in a post-Brexit, post-Covid world, further giant leaps in the use of genuinely cutting-edge technology are essential.
Beyond international disputes being heard in the Rolls Building, it is also an essential prerequisite for the administration of justice at every level of our court system. I would respectfully suggest that, on that point, every judge who sits in those courts might agree.
Dominic Carman, journalist, writer and legal commentator. www.dominiccarman.com