Government plans to move more criminal justice cases online could lead to vulnerable innocent people pleading guilty, according to testimony from the Magistrates Association seen by BuzzFeed News.
The association, which represents the volunteers who hear most criminal cases in England and Wales, raised many serious concerns about reforms in response to an internal survey from the senior judiciary. Submissions to the Judicial Ways of Working consultation were never intended to be made public.
The scale of disquiet about the reforms is apparent immediately. In its introductory paragraph, the association writes: “The MA welcomes the underlying aims of the reform agenda to improve the efficiency of the justice system. However, we are alarmed by some of the proposals set out in the Judicial Ways of Working papers.
“We believe there is potential to erode judicial decision-making powers and undermine established democratic processes and the fundamental principles of the justice system. We also believe that if these proposals are implemented there is a very real risk of unfair or disproportionate outcomes for the most vulnerable people in our courts.”
The document adds to a growing body of evidence that there are serious concerns across the judiciary about the reforms. It is the latest in several leaked submissions, including a scorching assessment by district judges that the courts are “even more broken” following budget cuts and another warning that witnesses could be coached off camera in video hearings.
As part of its programme of court reform and closures, the Ministry of Justice is proposing to move more pleas online, so that people do not need to come to court to say if they will be pleading guilty or not guilty.
Magistrates usually hear pleas in court, which means that even if someone does not have a lawyer, the magistrates or a court legal adviser can remind them of the implications of a decision. They are concerned that if online pleas are introduced in all cases, “there is a risk that defendants will indicate a plea without getting appropriate legal advice, possibly without realising the seriousness of the case.”
They added: “An even more concerning outcome may be ill-considered pleas where an individual does not, for example, appreciate that they have a statutory defence or fails to understand the process. This would result in incorrect outcomes, where a defendant is found guilty of an offence of which they are innocent.”
The document, which was leaked to the charity Transform Justice, also showed magistrates' concerns that entering a plea on a computer would mean there would be missed opportunities to identify whether a defendant has vulnerabilities that might make it hard for them to understand how best to plead.
Because many people facing criminal charges do not have a lawyer, magistrates are worried about vulnerable people’s ability to navigate online pleas and video hearings without advice. So far in proposals Her Majesty's Courts and Tribunals Service (HMCTS) has described the process being completed by a lawyer but there do not appear to be any guarantees.
Magistrates said: “Where a plea is currently taken in person by a court, there is the opportunity to ensure they understand the law (for example relating to equivocal guilty pleas) as well as making sure they understand the consequences of a guilty plea if equivocal. Similarly, a not guilty plea could be entered in the mistaken belief that an individual has a defence, when it should actually be seen as mitigation rather than a defence.”
BuzzFeed News revealed in December 2017 that the number of people facing criminal charges without a lawyer in magistrates' court was on the rise. A survey of magistrates found 30% of all criminal defendants they saw at their last session had no lawyer, up from 24% in 2014.
The means test cutoff for qualifying for legal aid in magistrates' court has not kept pace with inflation, remaining unchanged since 2008. It was reintroduced for criminal cases by the Labour government in 2006.
Jon Collins, chief executive of the Magistrates Association, told BuzzFeed News: “Of course we’re concerned about the future of the court system … no one wants to stand in the way of much-needed modernisation of the courts system but it is a complicated programme and I think it’s important that at every step of the way we’re evaluating how it’s going and that it’s delivered in a way that prioritises access to justice and a fair system for all court users.”
The document also shows the level of disquiet about plans to close more courts and get rid of court staff. More than 250 courts across England and Wales have been closed since 2010, a move the government justifies by arguing it is part of a shift towards virtual justice. The department is also planning to axe more than 6,500 court and backroom jobs by 2022.
The association said magistrates were “very concerned about proposals to further reduce the court estate, as well as a very significant reduction in staff. Centralisation risks losing local justice and justice becoming remote from all parties as well as the public — which can only damage public trust and confidence in the system.”
Magistrates also expressed scepticism as to how often video hearings — a key part of the proposed reforms — will be practical or agreed to. The government’s own impact assessment showed that just 36% of people in all age groups use the internet to make calls or web chat. Magistrates said this figure “indicates the percentage of people who might be willing to use video-link technology to give evidence or otherwise engage with legal processes is likely to be low.”
The quality of existing technology is also worrying many in the judiciary. The association said of video-links already in use: “Magistrates report difficulties with establishing connections, as well as the fact that sound quality can be poor. Both of these could severely limit the effectiveness of using the technology.”
Penelope Gibbs, director of Transform Justice, who was given the leaked document, said: “Another consultation response, this time from the Magistrates Association, shows just how unhappy many judges are about plans to close courts and put cases online and on video. It looks as if staff in courts will be reduced by at least half and many more courts will be closed. The MA is understandably concerned that if the local justice is eroded, trust in the justice system may erode too.
“Magistrates worry that most criminal charges will in future be dealt with via the closed ‘single justice procedure’ process. This means that defendants who plead guilty of the least serious offences will not see a magistrate or the inside of a court. Magistrates rightly question how a vulnerable defendant might be identified if they have only ever filled in an online form and how victims might see justice done in these cases.
“The MA identifies many potential problems with proposals to encourage defendants to plead guilty or not guilty to crimes online. Let's hope HMCTS has heeded the warnings of magistrates and lawyers who fear vulnerable innocent people may swipe right to plead guilty. In response HMCTS has indicated that only lawyers will be able enter pleas online for defendants accused of serious crimes. But what is serious? All convictions lead to criminal records. So I fear the scope of offences deemed suitable for online pleas by unrepresented defendants will only increase.”
The reforms are becoming a concern to MPs of all parties. The justice select committee launched an inquiry last week into the access-to-justice implications of court closures and the reform programme.
The chair of the committee, Conservative MP Bob Neill, said following its announcement: “There is no doubt that the HMCTS reforms represent a significant change in the delivery of justice across all areas of the system. While we welcome the intention of modernising the courts and tribunals, the public accounts committee has already raised concerns about the deliverability of the reforms.
“We are worried about the access to justice implications and will take this opportunity to put those at the heart of our inquiry.”
After reporting on other judicial opposition to the reform programme, the communications director of HMCTS suggested that BuzzFeed News should have mentioned an independent evaluation that showed “a high level of satisfaction” among users of video hearings. While the study included a total of 31 interviews with court staff, lawyers, and users about phone and video hearings, he neglected to mention that the sample size of appellants actually interviewed after a video hearing was just two.
A HMCTS spokesperson said: “The judiciary and government are working collaboratively on a £1 billion reform package to deliver a more accessible, flexible and efficient justice system that is fit for the 21st century.
“The use of fully video hearings will be carefully developed and tested before being rolled out. They will only ever be used in certain types of hearings, at the discretion of the judge when they consider that it is in the interests of justice to do so.
“The first pilot took place in the Tax Tribunal last year and was subject to an independent academic evaluation which recommended that the pilots ‘be expanded’.
“All court closures to date have been because they are underused, dilapidated or too close to another court, and only after a public consultation.”