Marina Wheeler QC considers the future of remote hearings post pandemic: should they stay with us?

So much has changed. In mid-March in the midst of a public health emergency, the Courts slammed their doors shut. Judges, court staff, lawyers, litigants, the press and the public, we were all told to go home and stay put. But the system kept going. After a brief intake of breath (it had all happened so fast), remote hearings began.

For many practitioners handling the tech meant a steep learning curve. We shared tips and tribulations. Our underappreciated IT support came into their own. The digitally literate guided the fearful and the frustrated (most people, some of the time). In a transcript doing the rounds, a High Court Judge regretted his “crustiness”, “because anything technical” he confessed to Counsel, “I’m not very keen on”. But cases were heard. Correction. Some cases were heard.

The technical feasibility of a hearing was one thing. A separate question was whether it would be  effective and fair. Responding to COVID-19 gave us chance to think about the essentials, about what  we are doing and why. The Bar Council and others are already considering what we might keep in a post-emergency world. Here at 1 Crown Office Row we have been doing the same. The Family Courts had to think fast. Lockdown placed additional strain on struggling families adding to the urgent workload. The President of the Family Division gave guidance that cases where the court needed to assess the credibility of witnesses, may be ill-suited for final resolution online.

Getting to the truth is at the heart of the system and cross-examination of witnesses is central to this. The advocate observes body language and subtle variations in speech as possible signs of  discomfort. This is not possible remotely. The delay in transmission, the absence of proximity, dulls the encounter. A judge has various tools to assess credibility. Witness demeanour is one. As the President explained, a judge observes the behaviour of a person facing allegations in the witness box but also sitting in the well of the court. Even in hearings with no witness evidence, members of  Chambers reported that something vital was lost when conducted remotely. Oral advocacy also suffered from the absence of immediacy. Without a rapport with the judge, you can’t assess the reaction to a submission and tailor it accordingly. Some compared it to appearing before the Courts in Luxembourg or Strasbourg where proceedings depend heavily on written submissions. There, a colleague observed “the Judges sit so far away. You can’t see the whites of their eyes.” The judicial perspective is similar. A colleague/ arbitrator reported, “the time lag made it harder to ask Counsel  questions or clarify a point. Interrupting causes confusion so you don’t. Counsel get an easier ride but the quality of the hearing probably suffers.”

During full-lockdown some Public Inquiries continued to take oral evidence remotely. Others such as the Grenfell Tower Inquiry considered that doing so would compromise the process too much. They placed a high value on those affected by the tragedy being physically present (some needing the help of interpreters) while public officials were asked to account for their actions. The dignity and solemnity of the Inquiry’s physical space was also considered vital to the Inquiry’s work.

Many personal injury and clinical negligence trials were adjourned, but members of chambers managed other types of hearings remotely. Round-table meetings (RTMs) appeared to work well. Opinion though was divided over hearings to approve settlements. Some felt that in high value cases, interaction with the family should be in person. One colleague explained “many families want to hear a Trust issue an apology in public and explain that lessons have been learnt. Often the local press sits in and reports what has happened. That is important.” Another colleague would happily forgo travelling hours for a 10 minute hearing which, she says, many Claimants would prefer not to attend.

This raises two issues. First, in designing new systems we shouldn’t assume we know what parties want. Second, how do we ensure adequate access for the public and press? Open justice is well-established in some kinds of proceedings. Others are just starting to let in some light. In some members’ cases the press successfully dialled in but they were ad hoc, imperfect solutions. A question for the future will be whether a reduction in openness is an acceptable price for the convenience of remote hearings.

Hearings without live evidence which are not final determinations, but involve significant travelling and waiting should, many suggested, continue to be dealt with remotely. These might include  appearances before the Interim Orders Tribunals in GMC disciplinary proceedings (leaving plenty of  seats free on the future high speed train service to Manchester). There is scope too in judicial review. A colleague who defended (remotely) many challenges to immigration detention during the pandemic was converted to remote hearings for permission applications. “If you are in the RCJ permission list” he reported “you can sit about all day waiting. That time could be better spent  working in Chambers and appearing – electronically – when the Court calls the case”.

Unsurprisingly, there is a strong support for remote case management hearings continuing post-emergency. A huge HMCTS-led reform is already underway to digitalise justice. Paper bundles are on the way out, although patchy experiences underline that none of this can be done on the cheap and Judges at all levels need proper support. “Online Courts” to resolve low value civil disputes are also in the pipeline.

Recognising the great advance made in responding to COVID-19 there are now calls to extend this much further. In responding we must avoid “crustiness” and be open to new ways of doing things. This is a chance to do better, to inject more impetus into arbitration and mediation, clear the backlog  of cases choking Employment Tribunals, find ways to use technology to bring in, and protect, vulnerable court-users. But we must also be clear about what it would be wrong to give up. This includes the part of the system where direct human interaction is essential to delivering justice.

Marina Wheeler QC specialises in Administrative and Public Law and family law cases with a cross-border or national security angle. Read her articles on the UK Human Rights Blog and listen to her discuss Radicalisation and Prevent Duty Guidance on ep. 75 of Law Pod UK. 

First published in the 1COR Bundle 2019-2020