Under the HM Courts and Tribunals Service’s (HMCTS) plan, more than half of the courts across England and Wales were closed in the years between 2010 and 2019.
The plan’s objective is to fund improvements to the court system, such as new digital services, by selling underused court buildings. The aim of the HMCTS is stated as: “To run an efficient and effective courts and tribunals system, which enables the rule of law to be upheld and provides access to justice for all.” In theory, this sounds positive, but reality paints a very different picture.
In fact, the impact of the HMCTS plan has been devastating for clients who, in many cases, have been waiting years for their trial. It begs the question, is the HMCTS plan working? Is the courts and tribunals system more efficient and effective, and is the justice system accessible to all? It appears not.
Why are we seeing more and more court closures?
The reasons behind the court closures are complex. The government is responsible for implementing the HM Courts and Tribunals Service’s (HMCTS) plan, which is essentially a cost-saving measure. And, of course, COVID-19 impacted many sectors and industries; unsurprisingly, the judicial services were no different. However, it is important not to overstate the significance of the pandemic on the courts because issues existed long before COVID-19, due to lack of government funding.
According to a report on the impact of the pandemic on courts and tribunals in England and Wales by the Constitution Committee, the courts were already in a very vulnerable position going into the COVID-19 crisis due to insufficient funding.
From 2010-2020, the decade leading up to the pandemic, government funding into the legal system has been dramatically reduced and as a result, the courts suffered even more when coronavirus swept the country.
Courts were forced to adopt virtual hearings and as the report notes, this affected different court services disproportionately. The senior courts adapted quite well but the lower courts suffered.
The report also warns that measures introduced during the pandemic to reduce transmission of the virus should not be made permanent, especially where access to justice is compromised, and instead, the government should seek to improve existing services.
Hence, a high proportion of furloughed court staff did not return when restrictions eased which created staff shortages, directly contributing to the court cancellations seen today.
The lack of data on how remote hearings affect non-professional and vulnerable court users is also vital for understanding how reforms are working, and what can be done to improve court services. The Committee wants to see data reform.
Furthermore, interrupting the normal operation of the courts has far-reaching consequences; not only is it detrimental to the legal sector and profession, but it also creates a barrier to accessing legal representation. The Committee advises that the government commit to increasing the legal aid budget so that the challenges for access to justice that have arisen as a result of the pandemic can be met.
It also suggests that the government capitalises on existing real estate for court hearings; increases the number of Nightingale courtrooms; increases the number of sitting days; and increases the number of part-time and retired judges. But this requires real investment, and as we have seen with other sectors, such as healthcare and education, the government is digging its heels in. Only time will tell if real change comes.
During the pandemic, the government introduced Nightingale courts to tackle the long list of court hearings. Some of these temporary courts are still standing.
However, more testing of the reforms is needed, and many users still need to go to court in person. If you need to travel further to attend court, the journey is likely to take longer and cost more. This makes it harder for some people to attend court and get access to justice.
Accessibility is key to the success of HMCTS’ reform programme. We cannot consider a system to deliver justice if it prevents people from using the courts effectively.
In May 2019, following our calls to delay future closures, the government said it would not close courts unless it has evidence that its reforms are reducing the use of those buildings.
Moreover, for some prospective judges, the job itself has lost its appeal. The incentive to become a judge is not there, culminating in recruitment issues across England and Wales. And that’s not to mention the court buildings and facilities, which are in some instances crumbling to the ground – quite literally. There have even been some reports of courts without adequate heating, plumbing or Wi-Fi facilities. All in all, the picture of the courts is one of a lack of investment and a lack of well-supported court staff and judges.
We must also consider the calibre of court staff. Is the government recruiting the right kind of people to work in courts? Is the training provided sufficient? How can the government attract the right kind of people into the courts?
Furthermore, the pandemic also encouraged something of a digital transformation in the courts, which includes remote hearings. The need for physical courts is therefore waning, according to some commentators, and with fewer courts and court staff, come fewer judges and fewer court hearings.
How are the court closures impacting clients?
It goes without saying that court users have been negatively impacted by these closures. Naturally, cancelled hearings cause major inconvenience to clients, particularly those who may be from low-income households, have disabilities or mobility issues, and have children or caring responsibilities.
Also, individuals from rural areas or without access to a car may struggle to physically get to the court, and so last-minute delays may cause additional inconvenience due to limited transport.
Furthermore, court delays pose significant problems for business owners who may have to pay staff overtime whilst they are away, and if multiple court hearings are delayed, that presents an even greater emotional and financial challenge for individuals who own businesses.
HMCTS defined a day’s travel to court as a court user leaving their home no earlier than 7.30 am and returning by 7.30 pm, but for those who are elderly, disabled, with children or caring responsibility, this may be an unrealistic expectation.
The introduction of virtual court hearings
The world has changed post-COVID, whether that’s the wider adoption of working from home, virtual classrooms, or remote court hearings. For many individuals, not having to physically attend court is welcome news. However, inevitably, the shift towards virtual court hearings has caused division within the courts, for judges, solicitors and clients alike.
Post-lockdown, some judges have decided against virtual court hearings and instead, opt for in-person court hearings only. This has created issues.
Undoubtedly, in some cases, justice can only be delivered face-to-face, so an in-person hearing is required. But in other instances, an in-person hearing may be deemed unnecessary, and a major inconvenience.
Essentially, whilst some judges and some clients may prefer physically to go to court, for others this is extremely time-consuming and mentally draining and delayed court hearings are only exacerbating the problem. And if some judges are unwilling to attend court, the backlog of delayed court hearings only increases.
As discussed, many clients face difficulties in travelling to court, taking time off work, arranging childcare etc., and so some individuals may prefer virtual hearings to in-person hearings; but this is not always possible.
However, at Express Solicitors virtual hearings are always a favoured option where appropriate thanks to our in-house advocacy team so no matter what an individual’s circumstances are, they can count on being supported as much as possible. This means that Express Solicitors facilitate advocacy for our clients all over the country.
How are the court closures impacting Express Solicitors’ clients?
Express Solicitors’ data (2022-2023) shows that the South of England has been particularly badly affected by cancelled final court hearing trials, particularly in Romford (3 cancellations), Luton (3), Clerkenwell and Shoreditch (3), Medway (2), Chelmsford (2) and Croydon (2).
The worst affected court in the North is Lincoln (3 cancellations).
Other courts affected by last-minute cancelled trials include Nottingham (1), Uxbridge (1), West Cumbria (1), Bromley (1), Durham (1), Truro (1), Warwick (1), Sussex (1), Oxford (1), Chester (1), Wolverhampton (1), Canterbury (1), Maidstone (1), Weston-super-Mare (1), Leeds (1), Plymouth (1), Watford (1), Kingston-upon-Thames (1).
It may be worth considering the socio-economic conditions of these places and whether lack of funding is related to delay incidence.
Please see the map below for a visual representation of this data:
Mr Gold, a client at Express Solicitors, who has first-hand experience of court delays after his case was pushed back from February 2023 to June 2023, discusses how he felt: “The court delays caused me anxiety and depression, and I was left unable to eat. It was weighing on my mind every night before I went to bed and every morning when I woke up. The whole experience was horrible.”
What reason is given for last-minute, cancelled hearings?
In most scenarios, the hearing was cancelled the day before, or just days before the hearing was due. For example, a court hearing due to take place in Bromley on 24/02/2022 was cancelled just the day before, on 23/02/2022 at 2.14 pm. Another court hearing planned for 06/04/22 in Romford was also cancelled just a day before, on 05/04/22 at 12.47 pm. It is not hard to see why court delays can be so extremely frustrating for all of those involved, not least the client, who has invested so much into their claim.
It is important to remember that this is a snapshot of one firm; the reality is much worse across the country.
The reason for cancellation in nearly all of these cases is “lack of judicial availability.” Therefore, Express Solicitors’ data strongly correlates with the judicial crisis in England and Wales – there is a real lack of court staff and judges, and this is directly impacting solicitors and clients alike.