What just happened?
As a result of Covid-19 restrictions, the judiciary in England and Wales has published a slew of measures to promote remote hearings in order to reduce the backlog of cases. The Lord Chief Justice set the tone in March by urging for an increased use of telephone and video technology.[1] This was quickly followed by the Coronavirus Act 2020, which legislated for a broader range of audiovisual court proceedings.[2]
Then in July, HM Courts & Tribunals Service (HMCTS) extended its Cloud Video Platform to civil, family, and tribunal hearings, thus creating a virtual courtroom.[3]
What does this mean?
All in all, the number of cases involving remote technology has shot up by 90% since the beginning of the pandemic.[4]
The judiciary hail this as a cause for celebration as it ensures decisions are still being made, justice is being delivered and all at a fraction of the cost of face-to-face hearings.
Debates about the merits of virtual hearings tend to lean heavily on practical considerations. Certainly, there is no precedent or framework for how to overcome this rapid switch from court to the computer. Where should everybody sit? Which tech should be used? What happens when someone rings the doorbell to deliver a parcel? Or when the internet connection inevitably drops when a barrister is making his or her rousing, valedictory speech?
Then there are altogether less trivial questions of legal procedure. As one anonymous Circuit Court judge pointed out, the impetus is on the judge to make decisions on virtual hearings based on guidance that is often contradictory - should it be for urgent cases only? What if a case is not deemed suitable for a remote hearing yet an attended hearing is not feasible? Or if one side refuses to participate unless court proceedings are conducted in person?[5]
See below for an example of a remote hearing in America.
These practical and procedural issues are not insuperable in and of themselves, provided there are enough people willing to find workable solutions. It certainly helps that the judiciary itself, historically reticent when it comes to adopting technology in the courtroom, has become a consistent advocate of virtual hearings.
Playing up practicalities, however, risks putting the cart before the horse.
At stake is the very question of justice - can a fair result be delivered over Zoom, or even HMCTS’s new Cloud Video Platform, as it can in court? Opposition comes in many guises but tends to bring out hidden problems.[6]
For a start, internet access is not a universal right but depends on such factors as age, geography, disability, and income. At home, distractions (children, partners, flat mates, pets) are harder to avoid or predict and can increase stress for litigants. Some argue that virtual hearings downplay the gravity of the situation, though the impact of such a perception is difficult to quantify.
More seriously, conducting court proceedings behind a computer screen can make it harder to assess whether someone is telling the truth, lying, or speaking under duress.
For example from a partner listening inside the house or even coercively feeding answers in the same room.
What does this mean for the legal sector?
Moving courts online during Covid-19 is more a change in procedure than law, and in any case is part of a longer-term trend . Magistrates courts have been closing in droves over the past decade with the money saved being put towards a £1bn programme to modernise the justice system.[7]
Nevertheless, this shift is important for law firms, since litigants might be less inclined to settle in a virtual court if they hold doubts about the procedure. Further down the line, the lack of clarity surrounding remote hearings may lead to more appeals and thus more work for firms.
When restrictions of Covid-19 are lifted, Courts will face a large decision on the future relevance of remote hearings. As the UK continues to exploit new technology shouldn't its legal system follow?
Written by Tom Higgins Toon
Assessing Firms:
All commercial law firms involved in litigation, such as Stuarts Law, Hogan Lovells, Herbert Smith Freehills, DAC Beachcroft, Withers.
References:
[1] ‘Coronavirus (COVID-19) update from the Lord Chief Justice’, Courts and Tribunals Justiciary (17 March 2020).
[2] Simon Heatley and Charlotte Pender, ‘Remote hearings in the COVID-19 era: another new normal?’, Thomson Reuters Practical Law (28 May 2020).
[3] Elina Mockevicute, ‘Remote court hearings in the time of COVID - the ‘new normal’?’, Lexology (29 July 2020).
[4] HMCTS and Chris Philp MP, ‘New video tech to increase remote hearings in civil and family courts’, Gov.uk (1 July 2020).
[5] Anonymous, ‘Remote Jusice: A Judge’s perspective’, Transparency Project (7 April 2020).
[6] For a comprehensive list of factors that judges should consider in relation to remote hearings, see ‘Good practice for remote hearings’, Judicial College (May 2020).
[7] Anna Khoo, ‘Remote hearings for family courts horribly cruel’’, BBC News (4 June 2020).
Disclaimer: This article (and any information accessed through links in this article) is provided for information purposes only and does not constitute legal advice.