Something JUSTICE has been increasingly aware of in its work in recent years – but perhaps over its whole 61 year history – is that access to justice is undermined if people cannot understand the legal process that is taking place. This concern has formed the focus of our most recent report, Understanding Courts. Access to justice is what we are about at JUSTICE. Our vision is for fair, accessible and efficient legal processes, in which the individual’s rights are protected, and which reflect the country’s international reputation for upholding and promoting the rule of law. But what does access to justice mean in practice? In terms of the fair trial right provided by Article 6 European Convention on Human Rights, it is effective participation.
The European Court of Human Rights had a stab at defining this over a decade ago,
“The right of an accused to effective participation in his or her criminal trial generally includes, inter alia, not only the right to be present, but also to hear and follow the proceedings…“effective participation” in this context presupposes that the accused has a broad understanding of the nature of the trial process and of what is at stake for him or her, including the significance of any penalty which may be imposed. It means that he or she, if necessary with the assistance of, for example, an interpreter, lawyer, social worker or friend, should be able to understand the general thrust of what is said in court. The defendant should be able to follow what is said by the prosecution witnesses and, if represented, to explain to his own lawyers his version of events, point out any statements with which he disagrees and make them aware of any facts which should be put forward in his defence”: SC v UK (2005) 40 EHRR 10, at paras 28 and 29.
Effective participation will mean different things to different lay people using our courts. But it ought to encompass these three aspects: Understanding the key processes involved in, and the purpose of, a hearing; recognition by professional court users of the presence of the lay user in the process and acknowledgment of their status as parties, witnesses, jurors, friends and relatives or other participants; and perhaps most importantly, taking part in hearing processes, according to their status, and, through doing so, making a real contribution to the hearing and its eventual outcome.
All lay users, at whatever kind of hearing, will feel better involved if they are able to understand what is going on. Comprehending the order of the hearing, the roles of respective professional and lay users, the terminology used and where they fit into that process undoubtedly empowers lay users, particularly those who need to take an active role in the proceedings.
The starting point for Understanding Courts, which is the culmination of a year’s working party of experts from across the legal jurisdictions chaired by Sir Nicholas Blake, is the mounting evidence that lay people are not effectively participating in proceedings. We all know that there are increasing numbers of litigants in person in our courts, alongside jurisdictions where lay people have always had to manage alone if they cannot afford lawyers. The tribunals were set up for unrepresented people to resolve their disputes and most operate without lawyers in a significant number of proceedings. While there are many efforts underway to help lay people to navigate their cases, these are piecemeal, and lack signposting. Moreover, for all the lay people represented, there is ample empirical evidence that many cannot follow proceedings and often do not understand the outcome.
Over the year, the JUSTICE working party took evidence from a broad range of organisations and professionals working in the justice system to understand why communication is failing, where the best practice is, and what initiatives are being developed. Courts and tribunals are arenas in which the public resolve legal disputes. The report therefore seeks to place the lay user at the heart of the justice system – across all courts and tribunals – so that these are places not simply where legal professionals work but where the public can participate effectively in the resolution of their legal problems and feel that they have fully received access to justice.
Our recommendations focus on what effective participation should mean in practice: lay people informed about what will happen at their hearing through advance information provided in different modes; court professionals recognising that lay people should be their primary focus and adapting their approach accordingly; case management that checks for and assists understanding; the avoidance of legal jargon and confusing modes of address for plain English alternatives; change in culture that can exclude lay people; appropriate adaptations to enable participation for children and those with disability; and support for all users who need it.
The HMCTS reform programme provides a timely opportunity to review the quality of service that our courts and tribunals provide for the public using them. Our report recommends that HMCTS “online” should be the first port of call for any information about the legal system. Lay people should be able to type “Going to court” into a web browser and find credible, centralised and easy to navigate information and videos for each jurisdiction and each kind of court user. From here, HMCTS should signpost out to the NGOs, such as Advicenow and Citizens Advice that provide helpful information and tools for litigating. At court, leaflets and video screens should replicate that information, and reception should be staffed by friendly and knowledgeable people who can tell you where to go. HMCTS understands this problem and we are working with its teams across digital, court and jurisdiction-specific projects to improve the information that is available.
Legal professionals have an equally important role to play in improving accessibility to proceedings. The language and processes used in courts can still be ancient and alienating. We speak across benches to our “friends,” learned or otherwise, to judges who may be “Madam”, “Your Honour” or “Your Ladyship” for reasons that are not immediately obvious. We sit in particular places and stand at particular moments that are assumed to be standard. We are trained to cross-examine witnesses in order to undermine their credibility rather than reach the best evidence. The report calls for a judiciary-led consultation among the profession to ask whether these archaic practices continue to serve a useful purpose when set against any alienating impact they may have. It recommends simpler and clearer modes of address be used.
It also recommends that the approach of lawyers and judges is adapted to be better aware of lay users – through an updated overriding objective in civil, criminal and family proceedings (it is already a feature of tribunal proceedings) that professionals should have as a primary consideration the effective participation of lay users. In other words, that professionals adapt proceedings to ensure lay users comprehend the process. To achieve this, training needs to place far more focus on the experience of lay people, with professionals putting themselves in the shoes of lay people – something that is already done really well in some courts and tribunals, and through vulnerable witness handling training, but needs to be expanded. More active case management and use of procedural checklists would identify what is appropriate in each case.
These recommendations are aimed at Government, which we consider should provide far more support to lay users so as to empower them to be able to effectively participate in legal proceedings. They are also aimed at legal professionals who, by taking more time to consider the impact of proceedings upon clients, opponents’ clients and the other lay people involved in hearings, can make small changes to big effect in their approach to conducting cases.
As the title of the report implies, a two way process is required: lay users need to understand what is happening in court and courts need to understand why the position of lay users, especially the unrepresented and vulnerable, needs thoughtful consideration and adjustment of practise.
Legal Director, JUSTICE