‘Lack of investment’ behind snarled-up legal system

When Louise Westra and her partner decided to adopt a child in November 2018, they were aware of the long process that was ahead of them, but they were not to know that the coronavirus pandemic would hold them back from completing the adoption of their son.

On 27 March, their petition was due in court. As lockdown had taken effect, telephone conferencing would be used instead of going to court.

However, after the phone call, Ms Westra received an email from her solicitor explaining that the papers had not been served to the biological parents of the child. This continued every month after lockdown, as it wasn’t possible for the papers to be physically served.

“It’s farcical because one of them is the biological father who lives with the biological mother who has had her petition but the biological father hasn’t and they live in the same premises,” Ms Westra says.

Serving papers has to be completed by post via Royal Mail or in some cases lawyers would instruct a process server to physically take the papers and hand them to the person.

“It sounds very archaic but if [the person] won’t take them by hand, the processor has to touch them on the shoulders and drop the papers at their feet and that’s technically counted as full service,” says Rebecca Ranson, a solicitor for Maguire Family Law.

E-mailing or any other forms of digital communication are not considered valid – even though the majority of people in the UK have access to e-mail and the internet. It is this kind of process, in need of a digital upgrade, that is frustrating for Ms Westra.

Ms Westra’s case is one of many that have been delayed. The number of outstanding Crown court cases was 43,676 on 26 July, and the entire backlog across magistrates’ and Crown courts is more than 560,000. The Commons Justice Committee has announced an inquiry into how these delays could be addressed.

The reality, however, is that there was already a huge backlog back in December, and Covid-19 has just exacerbated an existing problem. Cases like Ms Westra’s have been affected by the pandemic, but many lawyers believe that the legal system could have been better prepared through technology investment over the years.

“We’ve got people being held for longer than they otherwise would be, and for every person in custody waiting for trial or waiting on bail for trial, there are witnesses, and complainants and their families awaiting a resolution. Whether it’s the lack of technology links in prison, using Skype and improvising or not having enough Nightingale courts – it all boils down to a lack of investment,” says Joanna Hardy, a London-based barrister.

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In 2016 HM Courts & Tribunals Service began a £1bn court reform programme. This included a video-conferencing tool called the Cloud Video Platform (CVP), which allows for a dedicated private conference area, so criminal lawyers can speak to their clients without visiting prison.

A programme for testing and adopting video technology was planned out until 2022, but in the pandemic, the government had to get CVP up and running in 10 weeks. This has since been extended to civil courts. But this implementation has been challenging, as there are only a restricted number of physical video links allowed.

“As we weren’t ready for this huge technological revolution no-one had manned the tech rooms or built enough rooms on the other end in the prison. We can have as many laptops as we like, as much software as we like but if we can’t put a prisoner into a room with a screen, the other end is pointless,” Ms Hardy says.

According to Ms Hardy, the waiting times to get these slots have been “completely unacceptable”, and it has meant that sometimes hearings had to go ahead without the defendant present.

“It’s like human beings failing where technology could have bridged the gap,” she says.

A Ministry of Justice spokesperson said that it had offered more than 400 CVP meeting rooms since the outbreak of coronavirus, but added that it is taking steps to increase the available capacity of video conferencing at some locations by extending operating hours. The spokesperson said that the MoJ is also undertaking urgent action to increase the physical number of video link outlets at critical sites.

At the moment, criminal trials are going ahead using social distancing – meaning sometimes a second courtroom is linked by technology, but this is creating further backlogs, as it means one case is occupying the same space as two.

Justice, the all-party law reform and human rights organisation, has trialled a virtual jury trial with a mock case, and suggested it should be considered as a possible option, but this hasn’t been taken on by the courts.

The issue with virtual jury trials is whether or not they could affect the outcome of a trial. Some lawyers feel like juries should see a witness, feel an exhibit and dispense justice to a fellow human being in the confines of a court room.

“You can lose the impact of cross examination. When you’re challenging their evidence in person it’s easier to get them to trip up if they’re not being honest, whereas if they’re on video it might be easier for them to cover it up,” says Jodie Hill, solicitor and managing director of Thrive Law, an employment law specialist.

For smaller hearings, online alternatives could be here for the long term, as it means lawyers don’t have to travel all over the UK unnecessarily. This doesn’t mean that every hearing that can be done remotely, should be done remotely.

“We don’t want overkill. We think some cases still need to be in the room, particularly if you’re dealing with vulnerable people or sensitive cases. It has to be a balancing act of harnessing the benefits of technology and thinking about the specific case,” says Ms Hardy.