Transform Justice: Court reforms favour victims and witnesses over defendants

The future of justice is here and it comes equipped with an iPad. With much fanfare the government and senior judiciary have announced digital court reforms aimed at protecting vulnerable victims and witnesses.

However, despite their noble intentions, the proposals risk leaving defendants behind and undermine the Lord Chancellor’s calls for a ‘justice system that works for everyone’.

‘Transforming Our Justice System’ – a ‘vision paper’ published jointly by the justice secretary, Liz Truss, the Lord Chief Justice, Lord Thomas, and Sir Ernest Ryder, senior president of tribunals – sets out plans to ‘go digital’ in every court and tribunal in England and Wales as part of its £1bn plans to reform the court system.

The paper’s standout proposal is for pre-trial cross-examination to be rolled out nationally in 2017. Following three successful pilots, victims were shown to have felt better protected and witnesses had a greater recall of events when their evidence was recorded ahead of trial.

Time taken to cross-examine halved while there was an increase in early guilty pleas by defendants. The cases were run at crown courts in Liverpool, Leeds, and Kingston-upon-Thames, and almost three-quarters involved sexual offences.

However, delving deeper into the evaluation of the pilots, the Ministry of Justice (MoJ) seems less convinced by the evidence behind the proposal, acknowledging that ‘the findings may not be replicated on roll-out due to the courts selected not necessarily being representative of the court estate as a whole’.

The MoJ’s lack of evidence for implementing legal reforms is nothing new. Last year the Public Accounts Committee released a damning report into the civil legal aid cuts which, MPs found, were introduced on the basis of ‘little evidence’.

Further concerns were expressed by the police, the Crown Prosecution Service, and defence lawyers about the expedited timeframes of the cases in the recent pilots, while those not requiring video cross-examination may need to be de-prioritised.

Witnesses also complained of cross-examination dates changing, sometimes at short notice, as well as delays caused by defendants’ availability and judges’ schedules.

The ‘vision paper’ also included a section called ‘No one left behind,’ which focused on the support required for those who may not have access to a computer and/or the internet.

Defendants appear under greater threat though. Three defence advocates questioned on the success of pre-trial cross-examinations argued that the pre-set questioning limited their ability to react to answers given by witnesses and to their body language, or explore lines of enquiry that would be of potential benefit to the interests of justice.

One defence lawyer did acknowledge, however, that a pragmatic approach by judges meant advocates were still able to ask appropriate and sensitively worded follow-up questions.

The defendant is arguably the most important court user but the paper makes no mention of how digital courts will benefit them. An increase in early guilty pleas from the pilots suggests any new system may actually reduce a defendant’s chances of proving their innocence.

For unrepresented defendants, their chances look far bleaker. In April, charity Transform Justice published a report on the experiences of unrepresented defendants in court and recommended that they should not be disadvantaged by the new digital courts programme. They too, along with vulnerable defendants, received no mention in the report.

Elsewhere in the report, those facing fines for minor offences will be able to admit their guilt and pay their penalty online. Penalties for dodging transport fares, TV license evasion, and speeding are expected to be trialled initially.

The MoJ envisages that this would allow defendants to conclude their case faster and with greater certainty, leaving the courts to focus their resources where most needed. Plans to make the system more straightforward by replacing legal jargon with everyday language were also put forward.

While the first significant act of the justice secretary’s tenure is a step forward, gaps remain in her vision for the future of justice. It is hoped responses to a follow-up consultation paper will pick up on these. 

Moreover, it should be pointed out that applying for a mortgage online, or doing your weekly shop from home, isn’t the same as accessing justice. Truss is on the record as saying ‘the right to a fair trial remains at the heart of everything we do’. She must now prove this is true.