My average day in 2016 is hardly recognisable to that which I experienced in 1992 when I was called to the Bar. The most noticeable differences are the result of the leaps and bounds we as a society have made in relation to the development, and use, of technology. Only a few examples of this can affect a barrister’s typical working day. Emails are commonplace for business communications. Barristers are no different from others in the 21st century working on laptops and iPads. In civil commercial work, pink tape has become a rarity, with most papers being delivered electronically. On the criminal side, the Digital Case System is being rolled out across the Crown Courts.
Tax and VAT returns are generally made online. Chambers’ websites are common and barristers’ twitter accounts and blogs abound. This transformation reflects the changes in society more broadly. There is no sign that the speed of transformation is slowing in pace. It has been said that the next 18 months will see changes commensurate with the last 20 years. It is clear that our justice system, and in particular its infrastructure, needs to modernise.
The Bar has welcomed the Government’s commitment to investment more than £700 million in the courts and tribunals system “to create a swifter, more proportionate justice system” (The Spending Review and Autumn Statement 2015). Undoubtedly our courts and tribunals need to reflect the age in which we live. Technology can offer much and we must be prepared to make use of it. Of course, there is always the risk of technology overpromising and of advancement or modernity being used to mask important shifts such as from adversarial to investigatory courts and from a judiciary chosen from the practicing profession to a career judiciary and we must be wary of these risks.
The Government’s spending commitment and moving our courts and tribunals into the 21st century is a substantial project. On the criminal side it includes, for example, the Common Platform Programme using criminal case digital case-files, the aforementioned Crown Court Digital Case System allowing, when it works, all professionals engaged in a particular case to lodge and access documents online, better video links, and in traffic offences an online plea service. In family cases investment is aimed at making online divorce a reality for the majority of divorces. On the civil side proposals include the online court covered, among other matters, by Lord Justice Briggs’ interim and final report on the Civil Courts Structure Review and an online tribunal service.
It is undoubtedly the case that our justice system is crying out for investment. We like to pride ourselves, I believe rightly, that at its best, our system of justice is among the finest in the world. But it has undoubtedly suffered from a lack of investment in its infrastructure and from radical cuts to our legal aid system, both in terms of removing many social welfare areas from legal aid and in terms of severe cuts to the fees for those areas attracting legal aid. More recently, we have seen a slew of court closures, to raise funds, and, on the civil side, the introduction of enhanced court fees, where ‘users’ of the court process are required to pay fees raised to subsidise other areas of the justice system. That our courts and tribunals need to modernise and continue to reflect the times in which we live is undisputable. Much of what is proposed by the senior judiciary and HMCTS, supported by Government funding, is to be encouraged. The Bar is committed to working with the senior judiciary, MoJ and HMCTS to support the implementation of plans. Supporting the modernisation programme does not mean that a healthy debate should be avoided.
Despite the welcomed investment in technology, I remain concerned that justice is undervalued. This is evident for example by the ring fencing applied by the previous Prime Minister and Chancellor of the Exchequer to health, education and overseas aid, but not to justice. While the investment is technology is welcomed, is not a panacea for long term underfunding. A functioning and transparent justice system is at the heart of our democratic society. It is important of course that justice is accessible. And there can be little doubt that this is one of the challenges in today’s England and Wales. The successive cuts to legal aid, including in particular the removal of legal aid for many family cases and for most cases involving housing, welfare, medical negligence, employment, debt and immigration, are part of the cause of this problem. The large rise in litigants in person mirrors these radical cuts.
A partial solution to the challenges facing the justice system is proposed in Lord Justice Briggs’ final report, the online court. He notes that many criticised the proposed departure from oral face to face hearings, which he describes as a “distinctive and much valued part of our court procedure, and proposals which would tend to reduce it need careful evaluation and clear justification.” As he responds, his proposals only depart from the default assumption that there must always be such a hearing. While this sounds relatively benign, particularly as the litigant will be entitled to have the Case Officer’s decision reconsidered by a judge, it raises the question whether this, together with other changes, reflects a first step away from our adversarial system. It has been said that judges are in any event increasingly performing an investigative role, given the large numbers of litigants in person. It may be that such shifts are inevitable, but we should at least acknowledge them, and ask ourselves, what impact they will have on our justice system more broadly and whether in the long run we don’t risk losing what made our system envied around the world. Does the introduction of Case Officers in the online court herald an age of career judiciary and if yes will we be able to sustain the quality and independence of our judiciary which has been so important in attracting work into the UK? Assuming that the online court is functionally successful, it must be a possibility, as some have already suggested, that the proposed ceiling is substantially raised, with some consultees suggesting £200,000 to £250,000. How will our society react to embedding into our system, one approach for most citizens, and another Rolls Royce approach for large corporations and wealthy individuals?
It is an open question what level of fees will be applied to claims in the online court. Lord Justice Briggs’ terms of reference did not cover this important issue, but his final report acknowledges that there is a “tacit understanding that its processes would not be free”. We would strongly encourage a very low level of fees to be applied. Any attempt to introduce “enhanced” fees in the context of the online court would, we suspect, act as a real disincentive and run the risk of undermining the stated aim of making the civil courts more generally accessible to individuals and small businesses. Recent figures from the Registry Trust show a 19 per cent drop in county court judgments against businesses in the first half of 2016. It seems likely that this is the result of enhanced court fees deterring small businesses from issuing claims to recover money owed to them. By increasing court fees the government has cut off SME’s ability to use CCJs as a last resort to get money owed to them. The Registry Trust figures show that there were 42,091 county court judgments against businesses in England and Wales in the first six months of 2016, a 19 per cent fall year on year. The total value of county court judgments was £149m, a decrease of 12 per cent and the lowest since before the financial crisis of 2008.
Chairman of the Bar, Chantal-Aimee Doerries QC