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22 September 2016

Online Litigation: The Lord Chancellor Liz Truss transforms Justice –perspectives from a criminal lawyer

6 mins

Liz Truss, in her first speech to the House of Commons as Lord Chancellor, outlined numerous proposals to transform the UK justice system.  This was then elaborated in the joint statement “Transforming our Justice System”.

The detail is lacking but the “vision” is clear. The joint statement proudly recites the high esteem in which our legal system is held internationally, explains how legal services contributed £25.7 billion to the UK economy in 2015 and comments on international litigators choosing to take cases in the UK to benefit from our justice system. When lawyers are spoken of in such glowing terms by a politician, you know that trouble is brewing.

Ignoring the reasons for this reputation, the brilliance and hard work undertaken by many over centuries and the availability of public funding since the 1940s to achieve it, the joint statement sets out how our system now needs “radical change” which will be achieved through “the enabling power of technology”. When setting out who this will assist: “the vision is to modernise and upgrade our justice system so that it works even better for everyone, from Judges and legal professionals, to witnesses, litigants and the vulnerable victims of crime.” Clearly, there is no room for defendants in this “vision”.

The three core principles of the justice system described by the joint statement are: just, proportionate and accessible. But the entire focus of the Lord Chancellor’s speech was on the use of technology to speed up the process and minimise costs, not the fairness of the proceedings. Accessibility is equated to physical accessibility, the use of technology and simple language. Undoubtedly the legal system is complex and difficult to navigate and processes and language should certainly be simplified to ensure it is accessible to the lay person. But the law is complex, the facts are not always straightforward and applying those facts to the law usually requires legal assistance to ensure rights are protected.

There are certainly inefficiencies in the criminal justice system, as defence lawyers we are all familiar with waiting in court all day for a simple hearing but unable to leave because there has been no advance disclosure from the CPS, the file is not in court, SERCO have not brought the defendant to court, no interpreter is available, the District Judge requires more information and the list goes on. If technology will remove delays then reform is welcome, but, unfortunately, our experience of the Digital Case Management System introduced last year has shown that many of these inefficiencies cannot be solved by technology alone. The Lord Chancellor also takes no account of those who cannot access technology for whatever reason whether they are in custody, in B&B accommodation or areas with no wifi, have learning difficulties or English as a second language or simply find online communication too difficult or stressful.

Perhaps what is of greater concern is the complete omission of any reference to access to justice through proper funding for legal aid to ensure that the most vulnerable in society have access to the legal system through publicly funded lawyers or even just access to legal advice. It is notable that the joint statement celebrates the commercial courts in the Rolls building, an exclusive court for high value dispute resolution, but dismisses the valuable work carried out in non commercial courts where the Law Chancellor envisages that cases will no longer “revolve around advocacy before a Judge in a physical courtroom”. Lawyers, even Judges, appear to have been reduced to an irritating distraction. If we didn’t know better, we could believe she is suggesting that the role of lawyers in this forum is redundant.

The Lord Chancellor plans to introduce “online criminal courts” where certain summary-only cases will be dealt with entirely online where the availability for legal advice before admitting liability/guilt will not be encouraged, if non existent. The use of summary justice through cautions, fixed penalty notices, ASBOs is nothing new but these developments indicate a concerning creep towards the use of online litigation. Cases that come to court are not straightforward (which is why they often end up in a court room) often involving vulnerable individuals, with complex issues, unclear facts, difficult histories and challenging legal concepts. They cannot be resolved like online banking or shopping. No doubt the resultant savings in costs, high conviction rates and collection of fines will embolden the Lord Chancellor to roll out such online courts to more complex matters such as “simple” theft, drugs and assault cases. Just watch this space.

The extension of summary justice is a worrying trend. Every day we receive calls from individuals who have accepted cautions or fixed penalty notices, without having the benefit of legal advice, when they may have had a defence, but are now burdened with a criminal sanction which influences and hinders their ability to take up employment, to travel to the US or creates difficulties with their Regulatory body.

The Ministry of Justice says prosecutors will remain accountable for their decisions as part of the safeguards that will be built into the system. But, in a week when it has been reported that defendants were cleared by juries at the highest rate for a decade, and there was a steep rise in the acquittal rate, many take the view that the CPS are failing in achieving convictions because too many cases are brought to trial when there is no case to answer. The police and CPS are also operating under dwindling resources, putting at risk their ability to be such a safeguard.

The cross examination of vulnerable witnesses pre trial has been piloted and will now be introduced nationally. This will undoubtedly be less stressful for those giving evidence, but fairness will only be ensured if the prosecution provide proper disclosure prior to this cross examination, disclosure which is currently often sadly lacking pre trial.

The Lord Chancellor believes her changes will “contribute to building a more just society”. These platitudes are great, but without properly resourcing the criminal justice system and those who are involved within it and enabling effective access to justice, it is at risk of becoming a meaningless soundbite with no substance.

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