On 25th January 2019 JUSTICE launched its latest working party report, Understanding Courts, chaired by Sir Nicholas Blake and supported by Allen and Overy LLP.
This Working Party was built on the What is a Court? report which was published by JUSTICE in May 2016 and has since directly influenced the transformation of the court estate. What is a Court? recommended a re-focus of the court estate on the needs of the user; with flexible justice spaces that can be located closer to the communities they serve and accommodate multiple jurisdictions; and enhanced services through investment in technology for remote and virtual proceedings and appropriately trained personnel.
According to the Crime Survey for England and Wales, less than half of people have confidence in the effectiveness of the justice system. Research has identified a disconnect between professional court users and lay people engaged in the trial process. Legal processes and constructs are confusing and distressing for the parties in cases, yet little effort has been made to truly address this. The court remains in the first instance the work place of legal professionals. As we reconfigure the court estate, and accommodate far more litigants in person, the role of the adversarial trial and legal professionals in communication of justice must be reviewed.
The Working Party
The aim of this work has been to improve the participation of court users in their own proceedings, which have a significant impact upon their lives, but from which they are often excluded by what JUSTICE considers to be overly legalistic processes.
The Working Party has looked at the language, interaction and questioning processes engaged during the adversarial trial, from the user’s perspective. Four initial aspects has been considered:
- Digitisation of the court process and ensuring this places the lay user at its centre, and will be assisted where necessary.
- Special measures that allow for pre-recorded examination of witness evidence: the professionals involved, process utilised and its impact upon the tribunal of fact.
- The continuing relevance of traditional and adversarial culture.
- Adversarial questioning compared with a more investigatory approach as a means to obtaining fair and accurate evidence.
The members of the working party were:
- Sir Nicholas Blake (Chair)
- Professor Jackie Hodgson
- Solicitor Richard Blann
- Magistrate Louise Bryant
- Judge and Solicitor Advocate Leslie Cuthbert
- Theo Huckle QC
- Professor Linda Mulcahy
- Professor Felicity Gerry QC
- Dr Jessica Jacobson
- Dr Amy Kirby
- District Crown Prosecutor Michael Mallon
- Retired Judge Carlos Dabezies
- Barrister and Fellow Emeritus, David Wurtzel
- Former Personal Support Unit CEO Nick Gallagher
- Jodie Blackstock
- Pouneh Ahari (Rapporteur)
- Natalie Kyneswood (Rapporteur)
We are very grateful to Allen & Overy who have pledged their support to the working party.
This report seeks to place lay people at the heart of the justice system – across all courts and tribunals – so that these are places not simply where legal professionals work but where the public can participate effectively in the resolution of their legal problems and feel that they have fully received access to justice. Courts and tribunals are arenas in which the public resolve legal disputes. If they cannot understand and feel connected to the legal process, access to justice is undermined.
Despite many attempts to simplify the process, in an era where cuts to legal aid mean that many more people go unrepresented, studies continue to cast doubt on how our justice system is currently operating. Previous research and the work of other JUSTICE working parties has revealed a disconnect between professionals and lay users in court, with the at-times chaotic nature of proceedings creating a culture that marginalises the public using our courts.
The Working Party recognises that a huge amount of work is already underway to help lay users to understand the legal system – from the clear and simple guides and tools developed by NGOs to the training in vulnerable witness handling for judges and advocates. However, these efforts are currently piecemeal and targeted at certain categories of lay user. We consider that a change in approach is required by HMCTS, lawmakers and court professionals to place all lay users at the heart of legal process, so that every effort is taken to enable lay people – according to their role − to understand and take part in legal process. As the title of our report, Understanding Courts, implies, a two way process is required: lay users need to understand what is happening in court and courts need to understand why the position of lay users, especially the unrepresented and vulnerable, needs thoughtful consideration and adjustment of practise.