Remote hearings are here to stay, thanks to Covid-19. That might have happened anyway, sooner or later, but the pandemic has made it both sooner and more certain.
On 3 March 2020 the government’s coronavirus Action Plan declared that “The Ministry of Justice’s HM Courts & Tribunal Service have well-established plans to deliver key services to protect the public and maintain confidence in the justice system.” By 23 March the Coronavirus Act 2020 was on the statute book, enabling rules and directions to be made permitting public and media access to remote hearings broadcast via the internet.
A flurry of practice directions and guidance documents duly followed. Jury trials were halted, most courts were closed, and the majority of litigation moved online. What was noticeable about all this was how much it was led by practitioners and court user groups, and how little of it was being managed by HMCTS – despite the fact that it had spent almost half a decade in a massive £1bn-plus court modernisation and digitisation programme apparently designed with this very eventuality in mind.
Court reform and coronavirus
HMCTS seem to have been caught on the hop. Their preferred remote hearing platform, known as the Kinley Cloud Video Platform (CVP), is now being rolled out, three months later, but in March it was simply not ready. Instead, they were offering two video platforms, Skype for Business and Microsoft Teams, as “approved” platforms, both available to judges via the eJudiciary cloud network, subsequently adding BT Meet Me for telephone meetings.
Meanwhile the rest of the world, it seems, was using the video platform Zoom. There had initially been data security concerns with Zoom, with stories about “Zoom-bombing” (unauthorised intrusion or posting of content during sessions) and the risks of data being routed via servers in China; but Zoom rapidly upgraded and refined their product to calm these jitters and made itself the preferred remote meeting platform. It’s widely used by universities, schools and businesses, as well as for court hearings.
CVP was something HMCTS had planned eventually to integrate into their Common Platform for end-to-end digital court filing and case management. The HMCTS Reform programme (see my article in the September 2017 issue of the Newsletter) is not a single monolithic project: it is a patchwork of 50 or so smaller projects, all of which have been working independently, and while that brings the advantages of agility in development (each project can “fail fast and be fixed”, as the saying goes, without holding up other developments), it also poses the challenge of joining up all the developments, integrating them into the whole. In the case of remote hearings, this hadn’t yet been done.
What HMCTS did do was to close most of the courts. Some buildings remained open for administrative work, and some had working courts in them, but they were the minority. The courts which remained open were for urgent business, such as domestic abuse, child protection care orders, non-molestation injunctions, and bail hearings.
Magistrates courts continued to deal with minor offences, but jury trials were postponed. Almost anything else, including many civil and family cases, went online.
Remote hearings: user experience
At first with remote hearings it was a case of “all hands on deck”, using what one judge called a “smorgasbord” of different approaches and platforms, often managed by law firms or advocates using their own app accounts. See, for example, The Remote Access Family Court issued by Mr Justice MacDonald with input from practitioners and groups such as the Family Law Bar Association and the Transparency Project (see the latest updated guidance). That meant it was often practitioners who carried the responsibility of recording the hearing, managing the data, and ensuring that it was properly passed on to the judiciary for archiving and possible transcription.
An example of this ad hoc approach was the hearing, in the Business and Property Courts, of National Bank of Kazakhstan v Bank of New York Mellon  EWHC 916 (Comm) before Mr Justice Teare. This was supposedly the first fully virtual High Court trial. The case was listed with links to several sessions on YouTube, the recording and publication of which appear to have been managed by one or more of the solicitors’ firms in the case. You could link to the hearing during session, and see counsel and the judge in their own living rooms or studies. A daily transcript was later provided by Stewarts, the claimants’ solicitors, and this remains accessible but the video (which was not streamed via the official Judiciary YouTube account) is no longer available.
Despite occasional technical hiccups, the general perception of remote hearings within the profession was extremely positive. One of the key findings of the Civil Justice Council’s Rapid Review: The Impact of COVID-19 on the Civil Justice System, led by Dr Natalie Byrom (June 2020), was that while most lawyers were satisfied with their experience (over 70 per cent said it had been positive or very positive), the experience of lay users was more mixed. Almost half (44.7 per cent) of all hearings experienced technical difficulties or problems with the technology, and nearly a third (30.4 per cent) of respondents reported that no-one had provided technical support. There was evidence that lay users, particularly litigants in person and participating clients who might be considered vulnerable in one way or another, were more likely to suffer from a lack of technical support and guidance.
Lay users were more likely to be participating in family cases, and a good example of the less positive early experience of non-lawyers was a case in the Court of Protection heard remotely via Skype. The hearing was felt by the judge and all the lawyers to have gone well. One barrister reported that it seemed “very effective, and allowed for full and fair participation by all parties”.
But the perception of the lay parties was very different, according to Celia Kitzinger, in a post on the Transparency Project blog. The informality and the barristerial banter (which everyone could hear) detracted from the respectful formality of a court hearing, she said, and the visual concentration on those speaking made others feel invisible and ignored. More disturbing still, in one notorious family case, a mother was heard to ask the judge: “Are you going to take my child away from me on an iPad?” (Moved by her plea, the judge arranged a physical hearing.)
In criminal cases, remote hearings have been used for case management or sentencing matters but not for jury trials. However, a series of mock “virtual Crown Court” trials was organised by the law reform group JUSTICE, with assistance from Corker Binning solicitors and the tech company AVMI, in order to assess the possibility of holding remote criminal trials. In each case, a defendant was tried for a comparatively straightforward offence, such as assault, with witnesses giving evidence in chief and being cross-examined by barristers on each side, under the watchful gaze of a judge and an array of jurors – not in a single jury box, as in court, but each in their own little postage-stamp sized box on screen. Not surprisingly there were occasional technical hitches – jurors would drop off the grid from time to time – but the experiment was certainly worthwhile.
Whilst not all cases have turned out to be suited to remote disposal, the crisis has forced both practitioners and the judiciary to get used to the idea and to accept that it works for a lot more cases than they might previously have thought. Its use is likely to continue and grow even after the pandemic itself has abated.
Transparency and access to justice
Some remote hearings have also been “attended” by members of the public, in a sort of virtual public gallery, and reported by the news and specialist media – including law reporters. Cases in many courts are listed with an email address for those wishing to access the hearing to find out how to join. However, while coverage by news media and law reporters has generally been well catered for, the provision made for access to hearings by the public, including academic researchers and justice campaigners, has been decidedly patchy.
Where cases are streamed on YouTube it is easy for large numbers to watch remotely; but if they need to join a call on a video-conferencing platform, there is a limit on the number who can attend. Moreover, while it has generally been possible to attend remote hearings in the High Court and Court of Appeal, the information provided in respect of courts outside London has been much less consistent. The cases listed on CourtServe that include remote joining details have been the exception rather than the rule; most don’t.
Part of the problem appears to be an assumption, enshrined in a temporary Practice Direction under the Civil Procedure Rules, that providing access for media coverage is somehow equivalent to open justice. CPR PD51Y para 3 states: “Where a media representative is able to access proceedings remotely while they are taking place, they will be public proceedings.” This fails to acknowledge the legitimate reasons, such as legal education and research, for attending cases which, for want of newsworthiness, the media may not think it worthwhile to cover. On this point, see also Judith Townend’s updated article on “Covid-19, the UK’s Coronavirus Act and emergency ‘remote’ court hearings: what does it mean for open justice?”.
An open letter from NGOs and academics on open justice in the Covid-19 emergency, published on 29 May 2020, noted that while efforts were being made in some courts to enable non-media public attendance, “In reality, in many cases, members of the public – including many of the signatories to this letter – have encountered severe obstacles when trying to observe the justice process, particularly in the lower courts”. The signatories “urge the government, judiciary and court service to engage with groups beyond the traditional media to improve the public’s ability to see that justice is done”, and to “expand the range of data collected on remote proceedings in order to better monitor experiences of court users, and the implications for fair and equal access to justice.”
With the gradual easing of the lockdown, more physical courts have reopened, but substantial adjustments have been made to maintain appropriate distancing. Measures are being considered to address a mounting backlog of criminal trials, which the remote court revolution has left largely untouched.
Remote hearings for civil litigation look set to continue for some time, however, and the feedback provided by legal professionals suggests that, for some types of litigation (perhaps where the human factor is less critical), they will be the preferred option. At a recent meeting of the Commercial Court Users Group (conducted via Microsoft Teams), Mrs Justice Cockerill reported that “judges, court staff and users were actively thinking about whether to keep remote (or even hybrid) hearings as a default position or at least an often used option for some types of hearings post Covid”. This accords, too, with the vision for the future of litigation predicted by Professer Richard Susskind in his fortuitously timed recent book, Online Courts and the Future of Justice (OUP).
If this is the case, then we will need to take steps to ensure that a more consistent and reliable approach is taken to maintaining open justice, to ensure that justice is not only done but seen (by anyone who wants to watch it) to be done.
Paul Magrath is Head of Product Development and Online Content at the Incorporated Council of Law Reporting. He is also a member of the Transparency Project which seeks to improve access to information about the court process. Email firstname.lastname@example.org. Twitter @maggotlaw.