Delivering Digital Courts is the only solution to the Backlog

Tony Guise and Milad Shojaei have collaborated to investigate the digitalisation of the Criminal and Civil Justice systems. Working in the Criminal Justice System, Milad has dealt with the backlog first-hand, leveraging the benefits of technology to break down the barriers that hold the legal system back. As a commercial litigator and director of Disputes Efiling, Tony brings valuable insight into the E-Justice revolution and the need for modern IT in the civil courts. 

The legal system of England and Wales has inspired the world for the past 1000 years, influencing various countries all across the globe. However, consumers of legal services cannot overlook the persisting problem of the court backlog, which has overwhelmed the justice system at the expense of public confidence and effective enforcement of the law.

The Criminal Justice System in England and Wales (CJS) manages over 2 million cases every year, and in September 2016, Her Majesty’s Courts and Tribunal Service (HMCTS) embarked on a digital reform programme that would assist dealing with the significant caseload across all jurisdictions. However, the COVID-19 outbreak exacerbated the existing backlog, intensifying an already concerning problem. Meanwhile, the picture is no better in Civil Justice. Statistics from the Ministry of Justice released every quarter show a Backlog that is steadily growing. To effectively reinvigorate our reputation as justice leaders, we must oversee radical systemic changes that enhance the court capacity through what we still quaintly refer to as “modern” IT and sustainable digitisation initiatives.

Has the Justice system reached a ‘tipping point’ due to the backlog?

Service data disclosed by HMCTS indicated that by the end of September 2020 there were 509,347 outstanding cases in the magistrate’s courts and 48,713 in the Crown court. The CJS saw a 44% increase in the number of outstanding cases compared to 2019, according to the official Ministry of Justice (MOJ) statistics for courts in England and Wales.

The Crown Prosecution Service (CPS) managed almost 171,000 cases in June, with the number of ongoing prosecutions rising by one-third. The global crisis, coupled with over a decade of austerity measures imposed by the government, has aggravated the waiting list of cases in the crown court as the backlog is anticipated to reach 50,000 before the end of the year. The number of outstanding criminal cases at the magistrate’s court reached record levels during the peak of the pandemic, with a 94% drop of effective cases following the closure of the courts.

The latest figures also illustrate that the employment tribunals were receiving 1,250 new claims, with a total backlog of more than 45,000 overdue cases as of late September. These alarming figures are subject to inflation in light of the anticipated rise of unfair dismissal/discrimination claims made as more people lose their jobs.

Whilst in the civil courts the picture is as grim. In the period Q1-Q3 inclusive for 2020 there have been just over 600,000 fewer cases commenced than in the equivalent period in 2019. A proportion of the 600,000 cases will not be started because one or other, or both, parties will be insolvent. Nevertheless we foresee up to 400,000 cases being commenced in addition to business as usual volumes which is a very large Tsunami of Litigation coming.

In addition the first evidence of COVID related claims is coming to light with the recent publication from the Compensation Recovery Unit of increasing numbers of claims said to be due to COVID; in particular claims arising from Employer’s Liability insurance policies. This together with anecdotal evidence of significant claims farming activity in this growth area suggest that 400,000 additional claims in the next 2 quarters may only be the tip of the iceberg. An empirical consideration of the factors bringing about the civil justice Tsunami was set out in the DisputesEfiling Limited’s (DEF) White Paper published in July 2020.

he backlog of cases was increasing years before the emergence of COVID-19 due to the lack of funding in the justice system. For legal professionals across the sector, the problem has only intensified in light of recent events. Despite the introduction of remote court hearings and new digital workflows, the backlog has seen a rise in the previous months. The question arises, are we doing enough?

Regrettably, the result of the Spending Review of Autumn 2020 is that there was no new money for the Modernisation programme, with the original £1.4bn having run out in December 2019. HM Treasury indicated it would “consider” whether to grant more funds in February 2021. Leaving a less than half finished digitisation programme which only serves to further exacerbate the Backlog.

Amanda Pinto QC, chair of the Bar Council

The impact of the court backlog

Analysts from crime and justice consultancy Crest Advisory have predicted that the backlog in the criminal courts can rise to 200,000 by 2024 unless radical reforms are administered vigorously. A fundamental risk of the backlog is the impact it can have on vulnerable parties to proceedings. Claire Waxman, the Independent Victims Commissioner for London, warns that the current circumstances will compel victims of sexual offences and violent crimes to endure years of delay before they can receive justice. This tragic reality threatens the integrity of the UK justice system and increases the chances of victims abandoning the process entirely.

Defendants in court proceedings are also amongst those paying a heavy price. Due to unavailable court hearings, and a limited capacity to deal with a growing list of matters, the government introduced legislation enabling defendants awaiting trial to be held for 238 days. This effectively replaced the previous 182-day limit and has arguably compelled many defendants to render guilty pleas to avoid having delayed court proceedings hanging over their heads for years to come. Delaying justice is inevitably the denial of justice, and the integrity of the UK judicial system hangs in the balance unless robust solutions are pressed at speed.

In civil justice, the interventions that have taken place have been rolled out commendably by HMCTS in the face of the Pandemic. However, they consist of more physical courts and a video conferencing solution called Kinly Cloud Video Platform or CVP. Neither will stem the Backlog, let alone overcome the Tsunami of Litigation. Increasing the number of physical courts can only deal with the cases in the system at present. CVP does not accelerate the pace of hearings; if anything, it slows the pace of trials. This is because remote hearings, as we have all learned now, are slower due to infrastructure issues such as interrupted connection or low bandwidth or latency issues or all three. Hence a trial is typically extended by a day to cope with this. Given the number of cases in the Backlog, let alone the Tsunami, it does not take a Mathematician to understand CVP is not the solution and is in fact, the problem in terms of Backlog elimination.

In civil jurisdictions what is needed is much more Alternative Dispute Resolution (ADR) and much greater integration of ADR into civil court proceedings of England and Wales. Perhaps compulsory ADR before being allowed to start any claim, then between Defence and any time table being set for the case and finally, if not already settled, in the month before trial. This appears to be the direction of travel envisaged by Sir Geoffrey Vos who becomes the country’s third most notable Judge, the Master of the Rolls, on 11 January 2021.

Can we harness technology to bust the backlog?

The criminal courts have made considerable progress in digitising the justice system since moving away from paper-based systems in April 2016. The pivotal choice in offering court users an alternative to the traditional paper-based system has also effectively instigated a 4% rise in responsive prosecutions. Similarly, the family courts reported that paper-based forms resulted in higher chances of error. In comparison, digital applications ensured less than 1% errors.

Nevertheless, the CJS still relies on paper-based legal evidence and documentation. Digital evidence is more accessible than paper evidence, enabling legal professionals to review cases earlier and for court proceedings to operate more swiftly. What’s more, digital evidence ensures that documents are secured more safely, reducing the risk of losing or misplacing files. Professor Richard Susskind, IT Adviser to the Lord Chief Justice of England and Wales, advances that the courts should integrate existing digital alternatives as it not only enables speedier resolutions but also because court users have a “growing expectation that services will be delivered digitally”. Lawyers that work paperlessly typically report exercising improved efficiency, better case management and the ability to streamline the case preparation process so that matters can be dealt with more quickly. A detailed report on the benefits of digital case management systems was published on the Casedo Insights Hub in May 2020.

Enforcing a more meaningful move away from paper-based systems would guarantee better accuracy and less room for mistakes during the court procedure. By minimising errors, adjournments would reduce significantly, and this could potentially tackle a vital aspect of the growing backlog while safeguarding the efficiency of the CJS.

More staff or more tech?

To address the backlog, the MoJ is planning to open more emergency Nightingale courts, and the idea of employing more staff has also been considered. But are these viable solutions to address the problem? Although hiring more staff can assist in easing the pressure of the backlog, it will not adequately redress the issue. Greater numbers of workers may reduce quality control, leading to re-work, which can effectively intensify the backlog. An overburdened workforce is incapable of moving with speed necessary to tackle the issue at hand. Equipping court staff and legal professionals with new technologies would potentially yield better results.

Unfortunately, this is unlikely to be the solution as the Financial Settlement of 2015 entered into between the MoJ and HM Treasury requires a reduction of 6,000 staff at MoJ (including HMCTS) by the end of the 20-21 financial period. That process began 2 or 3 years ago. The justification for this was, of course, the completion of the digitisation of the Courts, which has regrettably not happened.

The way forward as Professor Susskind has begun to realise and more recently advocate is a series of public and private partnerships to fill the gaps left by the unfinished Modernisation Programme. Thus, we envisage much more ADR within the heart of the civil justice system being managed online. The volumes of ADR envisaged are simply too great to manage otherwise. Further, the citizen will simply not understand (and therefore not embrace) ADR conducted on paper. People’s entire lives are now managed online and ADR must be equally digitised for it to succeed. The Civil Justice Council recognises this with its recent consultation about making ADR de facto compulsory at not one but several points in the life of a court claim.

Moreover, HMCTS is already experimenting with remote hearings and paperless operations, proving that experimentation is a process and not a one-time fix. In the magistrate’s court, digital case management and greater use of IT is underway and delivering good results. It has effectively reduced the need for paperwork while simplifying and modernising procedures to create a system that works for all legal consumers. Continuing development behind such digitisation initiatives will likely improve efficiency in the allocation of cases and break down the barriers that delay the judicial system and increase the backlog.

During the first national Lockdown, the Business and Property Courts reported business as usual was maintained for up to 80% of its caseload. This is because those Courts have been digitised. Meanwhile in the County Courts, where most of the 2.1m cases issued in England and Wales take place every year, there is still no effective IT. Nevertheless the private sector can come together with HMCTS to provide solutions, just as was done when Thomson Reuters provided the e filing solution for the Rolls Building jurisdictions and, later, the BPC courts.

Nothing can stop the E-Justice revolution

Analysts at Crest Advisory suggest that the 2019 level of court utilisation must be doubled to bring the backlog under control. Given the state of our downed economy in light of the current economic crisis, we simply can’t afford to fulfil capacity expectations. We can, however, drive forward the digitisation of the court process and support integrating existing technologies to boost court capacity. It is equally crucial that a culture change within the profession accompanies modernisation initiatives as resistance will fundamentally curtail progress.

The projected negative attitudes of legal professionals that are unable to move forward with the times will hold us back. As such, lawyers across all jurisdictions should take more significant steps to adapt to rapidly changing times to avoid being left behind to keep their livelihoods in the Next Normal and keep cases moving at a reasonable pace. As the legal sector emerges from the global crisis, it’s clear that what sets different courts apart in their capability to manage the backlog, is their level of digitisation. Today’s revolution in technology will undeniably represent the standard of tomorrow’s justice system.

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