Administration of justice

What is a court?

Justice, the all-party law reform and human rights organisation, proposes a radical new approach for the court and tribunal estate in England and Wales.

About the author
Nadia O’Mara was rapporteur to the working party that compiled What is a court? A report by Justice.

With HM Courts and Tribunals Service (HMCTS) planning a large-scale programme of reform for the court and tribunal estate, this crucial element of the justice system is set to undergo a fundamental transformation. Seeking to inform this process of change, a Justice working party has recommended a fresh, principled and researchdriven approach to the configuration of the court and tribunal estate in England and Wales.¹ 

Overview

HMCTS is currently preparing, on behalf of the Lord Chancellor and in consultation with the judiciary, a detailed plan of reform of the court and tribunal estate in England and Wales. Underpinning this reform is a determination to revolutionise the way in which courts operate. An aspect of this reform programme, which has prompted much debate and some controversy, is the court closure plan, with 86 courts announced for closure in February this year. Another element is the commitment of more than £738m in Spending review and autumn statement 2015 for the modernisation and full digitisation of the courts, ie, moving from a paper-based system to a digital system.

Justice established a working party in autumn 2015, intending that the group’s recommendations, which were published in May 2016, would be taken on board by HMCTS as it embarks on this once-in-ageneration rethink of our courts and tribunals. While there are many risks inherent in such momentous change, Justice views this programme as an opportunity to be seized and, if executed properly, something which could provide the catalyst to rationalise the estate and maximise effective and accessible justice for all.

In its current condition, the court and tribunal estate is outdated and underperforming. It lacks the flexibility and technological capacity required of a modern justice system. The estate remains entirely configured around practices and processes designed for a different time. The modernisation of buildings and processes has historically been impeded by deep-seated conceptions of what a courthouse ought to be. Furthermore, priority has been given to judges and lawyers rather than the lay user. Now, however, for the first time since the abolition of the assizes and the courts of quarter sessions, there is an opportunity to challenge the traditional approach to courts and tribunals.

A fresh approach

From the outset, our working party recognised that, in order to be successful, the HMCTS programme of reform must be approached in a manner that is creative, ambitious and forward-looking . As a result of this awareness, we identified a number of key factors which should guide the HMCTS reform programme. These include the need to build flexibility into our courts and tribunals; make the court user the focus of any reform; and recognise the importance of services which assist litigants, particularly those without representation. The potential of technology is also highlighted as an area which should be explored in order to meet user needs and maximise access to justice.

The importance of flexibility to the reconfiguration project forms the crux of many of our recommendations. The rapid development of technology in our digital society makes it shortsighted to constrain the justice system within existing parameters. Furthermore, the traditional approach to courthouse design has been markedly inflexible, with court design guides precipitating a standardisation of design and with highly detailed room specifications placing too much emphasis on the production of inflexible facilities with fixed furniture.

A new model: justice spaces

The issues resulting from inflexible space are not new, but with the court closure programme going ahead the need for this limitation of design to be addressed has been accelerated. Cognisant of the fact that, at best, there will be a handful of new courts in the coming years, our working party proposes a realistic and practicable new model which will allow rooms within the existing estate to be repurposed as multi-functional and dynamic spaces. This reconception of hearing rooms sees the introduction of justice spaces – spaces which respond to the needs of the matters dealt within them – and the inclusion of both physical and virtual venues. In our view, the introduction of justice spaces will allow the court and tribunal estate to be flexible and adaptive by taking into account the impact of the shrinking estate and the potential of technical developments.

As the starting point for this new approach to hearing rooms, we suggest that the majority of cases can be grouped according to particular characteristics. These characteristics include, but are not limited to the following:

•  The level of security risk.
• The need for formality and/or solemnity.
• The degree of public participation.
• The degree of segregation of the parties required.
• The extent to which the participants accede to the judicial process.

By approaching the task this way, it becomes clear that case types often have similar spatial requirements, irrespective of jurisdiction (though there will of course be outliers). We propose three main categories of justice space, which cover the majority of disputes on the spectrum of case type: simple; standard; and formal. Simple justice spaces would be used for most small disputes, using modular furniture. Standard justice spaces would be semi-formal and flexible, but accommodate some permanent fixtures such as a raised judge’s bench. Formal justice spaces would be reserved for the most serious cases and for criminal trials.

A responsive estate

It is not enough for the rooms in courts and tribunals to come into the 21st century: the manner in which courts and tribunals are provided must also be responsive to the needs of those they serve. Access to justice must permeate every element of the justice system, including courts and tribunals. However, access to justice is not an immutable concept. In this digital era, access to justice need not necessarily involve physical access to a particular building; it can be made possible through technology similar to that used by most people as part of their everyday lives.

With this in mind, our working party designed a model for the composition of the court and tribunal estate which is made up of a number of responsive, flexible parts. In summary:

• Flagship Justice Centres based in major urban centres.
• Local Justice Centres located in major town centres.
• ‘Pop-up’ courts to provide for rural or other areas without easy access to a court or tribunal building.
• Remote access justice facilities to allow people to participate in legal proceedings without needing to be present in the room.
• Digital justice spaces like the online court proposed by Lord Justice Briggs in the interim report of his civil courts structure review.² (See also pages 5 and 41 of this issue.)

Operation in practice

Our working party knows that its recommendations are radical; it is what we set out to achieve. We are confident, however, that this does not mean our recommendations are unrealistic. Major reform of the justice system has a mixed history of success, and some scepticism is warranted. Our working party shares many of the concerns that have been levied against the HMCTS reform programme, but where we differ from some is in our conviction that, if designed around a core set of principles and executed in a careful and considerate manner, always putting the user at its heart, this period of transformation could be of great benefit to the justice system as a whole.

Certain practical steps must be taken in order to ensure that this happens. Our working party proposes that advice and assistance (especially for those who are self-represented ) must be made an essential component of the reform programme. This includes the need for the introduction of resource hubs, both in court and tribunal buildings and in third-party locations such as local citizens advice bureaux. The resource hubs suggested in our report would be equipped with a number of computer and telephone stations, and would be staffed by empathetic, knowledgeable individuals who can assist users to help themselves in a supportive environment. We think that this is essential, particularly with the introduction of the online court, to ensure that online justice solutions improve access to justice rather than erecting another barrier to users.

We also recognise the need for back-office space and judges’ space to be revisited, in the light of a changing justice system and the move away from paper-based , towards digital-based , systems. Crucially, we emphasise the importance of HMCTS staff to the success of our model. If the court and tribunal system is to operate effectively and efficiently within a smaller physical footprint, the role of HMCTS staff within those spaces must increase.