Remote Hearings – is access to justice still being done and been seen to be done?

 

Covid-19 has had a colossal impact on the judicial process in the UK. We have seen the implementation of a widespread and unexpected pilot of digital courts using Teams, Skype, Zoom and the Cloud Video Platform, as well as increased telephone hearings as a direct result of the Pandemic. Prior to the pandemic there had been a slow uptake in this regard albeit there were plans by the Ministry of Justice for digital transformation of the UK legal system.  However, the lockdown sparked a technological innovation in the courts, which enabled them to continue to operate during lockdown.

The rapid uptake of remote courts begs the question – is access to justice still being done and been seen to be done?

Fairness and justice must be experienced by lay parties or there is a real risk that they may be left with a prevailing impression that justice has been sacrificed at the behest of technology. In the unprecedented circumstances the nation has faced, it remains fundamental that “Not only must justice be done; it must also be seen to be done”.[1] 

Technology is a fantastic tool that promotes benefits to people’s lives, at least at some point anyway. It follows then that most people will have also faced the issues that technology can bring when something goes wrong – the virtual courts have been no different in that regard. Unfortunately, 9 times out of 10 these issues cannot be predicted, as I have seen throughout my growing virtual practice. There have been many battles, lawyers, judges and service users of the courts have faced over the last 12 months. The initial struggle was the start-up of “remote hearings”. As with all new start-ups there were some teething problems. I must say however that I have been impressed at the expedience of all court users (including myself) getting up to speed with how the new software, systems and procedures worked which now appear to be running smoothly.

However, there are still some problems. Internet access is a big issue. This has created notable limitations of virtual hearings. Things such as: being able to evaluate witness expressions, particularly when someone’s camera has frozen, or they simply don’t have camera facilities, parties dropping off at crucial moments of the trial and that part of the trial having to be re-done, or simply not being able to connect to the hearing at all which has led to lost court time and increased expense for the parties.

There has then also been issues of informality. I have observed in remote trials varying human responses, notably from witnesses who are not giving evidence at the time, which can be seen by all those participating. When people are sat at home in their natural surroundings they may not act or react in the same way as they would in a court room setting. These reactions may have the effect of assisting or distracting a witness who is giving evidence. Judges have been robust in this regard and I must say it is rare, but it can certainly serve to leave the impression of those effected that justice hasn’t been done.

Witness cross-examination is particularly challenging under these circumstances. Many barristers have commented that virtual courts are “not usually an effective forum for examination of witnesses for a host of reasons”. From my perspective I agree with this. It is difficult to get that rapport with a witness and fluently make your point when virtually cross-examining, and your point can sometimes be lost in transit for some of the reasons I have mentioned above. This however very much depends on the complexity of the case.

There is suggestion that virtual courts may be here for the long-haul for appropriate cases to assist with the court’s backlog. With that in mind from my experience some remote hearings can sometimes take much longer than they would in person, again for a whole host of reasons. One main factor of this in my opinion is digital literacy. Some cases which involve taking witnesses to electronic bundles can be very time consuming particularly in document heavy cases. Finding, and navigating one’s way through electronic bundles appears to be the most time-consuming task in the hearings that I have been instructed especially where the witness is not a custom to technology, or the electronic bundles are not sufficient. To put this into perspective I was instructed on a Preliminary Hearing in an Employment Tribunal matter which was listed to take one day, but which involved the parties giving evidence. Following the pandemic this was then listed for a remote hearing which in the end lasted a total of 3 days. The length of the hearing was extended as a result of many factors including technology issues, but the main issue was navigating the very large bundle. In that particular case, hearing the matter virtually only served to increase time and costs which is in stark contrast to the reasons being suggested for the indefinite implementation of remote courts.

The Ministry of Justice did however make it clear in September 2016 that in England and Wales virtual hearings would become a feature of the judicial system, but only to be used for appropriate cases. It is identifying which cases are appropriate and those which are not that seems to be the overarching problem from my experience. An unsuitable case being heard remotely severely undermines the rule of law and prevents access to justice.

Richard Susskind who has advocated for digital transformation of the judicial system for some time said in his recent article – The Future of the Courts, “When we ask what types of cases and issues can be settled by remote hearing, are we trying to determine when remote hearings can be said to be better than physical hearings, as good as physical hearings, not as good but “good enough” (and when is “good enough” good enough?), or not as good but, with some investment and imagination, likely to be good enough, as good, or better? The commentary is currently silent on this issue, insofar as I can see. As a matter of urgency, that silence must be broken.”

However, as the impact of Covid-19 continues, a body of information is building up about how to run online cases better and which cases are suitable for remote hearings. HM Courts and Tribunals Service is also working on improving the technical aspects of remote hearings, so that these can continue in the future. Over the course of the Pandemic, as all users have gained familiarity with the way the remote hearings work, I have certainly seen more suitable cases being heard with very few, if any, unsuitable cases being heard.  This has been a significant learning experience, and by no means are the virtual court facilities a finished product, there are many things that need to be altered before I can say they may provide a fair access to justice in all cases.

There is still, for example, concerns about the mechanisms we can implement to guarantee a due and fair process. Undisputedly, there is a significant difference between remote and in-person hearings. Virtual courts have to ensure fairness for all parties and the process’s integrity when courts are online. One major factor with remote hearings for now and in the future from my point of view is the lack of client contact or limited client contact during the hearing. I am sure most lawyers will agree with me that there are many times throughout a trial where an advocate needs to take instructions from their client. This might be for example on what another party has said during cross-examination. This is particularly problematic in remote hearings when communicating with your client is not as swift as if they were seated at the side of you. This can lead to short adjournments by which stage the witness knows that what he has said has caused some sort of stir. He may then choose to detract from what he has said or alternatively has been afforded the opportunity to strengthen his answer.

Moreover, remote hearings take away or limit the opportunity to negotiate on “the court room steps”. This potentially has had the effect of more matters going “all the way” and taking up court time that may have been avoided had the parties had the opportunity to discuss the issues beforehand. I accept that is not the case in all matters as some advocates communicate with their opponents, but that is not always so.

We are certainly seeing more proactive and innovative ways of working in the legal sphere. Ways in which our ancestors may never have dreamed of.  I am certainly not against reforming courts in a way that works for the future, to help access to justice for all society but there are still things that need to be done if remote hearings are here to stay.

On the whole whilst there are still some issues, as I have highlighted, the only other alternatives were in person hearings or to stop access to justice until the Pandemic passed, they are clearly not, and were not, suitable. The majority of cases I have been involved in have gone ahead without any real cause for concern. It has been a very different way of working but ensuring those who need the justice system are still able to utilise it and seeing the rule of law being upheld is crucial. There is also consensus among the legal profession that remote hearings are a suitable alternative.  A review of remote courts was undertaken with the support of the Civil Justice Council in England and Wales, where 1,077 people (871 of whom were lawyers) were asked about their experience of remote hearings. These related to 480 civil hearings, mainly held at the start of May 2020. The research found that “broadly speaking, the lawyers who completed this survey were satisfied with their experience of remote hearings: 71.5% of respondents described their experience as positive or very positive.”

There is clearly acceptance by the legal profession of our new normal, certainly throughout the pandemic, but on a longer scale whether that will still be the case remains to be seen. Richard Susskind said that “There remain some sceptics and critics, but in light of the experience during the crisis, there is certainly greater acceptance now than in February 2020—amongst lawyers, judges, officials, and court users—that judicial and court work might be undertaken very differently in years to come. Minds have been opened and changed over the past few months. Many assumptions have been swept aside.” It is an exciting time to see our courts modernise and hopefully in time the issues I have mentioned above will be circumvented by new systems and technologies which will give our justice system a greater reach to society.

In summary, overall, I believe access to justice is being provided in the best way possible during these unprecedented times. However, there is undeniably room for change and adjustments to the current format if remote hearings are being considered for the future within the UK’s Legal System.

Chelsea Brooke Ward, Barrister
www.parksquarebarristers.co.uk

[1] R v Sussex Justices, ex parte McCarthy [1924] 1KB 256.

 

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