Hafsah Masood

| @ | May 16,2020

Courts all over the world are struggling with an appropriate way to hold fair hearings of trails that are open to the public. The author outlines efforts made in the United Kingdom (UK) to ensure that all elements of a fair trial are maintained while hearings are conducted remotely.

 

THE Coronavirus pandemic has posed, and continues to pose, unprecedented challenges for the continued administration of justice in England and Wales as it has across the globe.

This was inevitable not least because, until recent events, the enduring model in England and Wales remained a physical court-based model. Telephone hearings were used in some civil cases but only, typically, for case management and straightforward interlocutory matters, or urgent out of hours’ business.  And despite some advances, such as electronic filing of claims in certain divisions of the High Court and the use of electronic bundles in the Supreme Court, court business remained heavily paper based.

As the situation progressed in March 2020, culminating in a full lockdown from 23 March, the message from the Lord Chief Justice was clear: although it would not be business as usual, every effort would be made to maintain a functioning court system in support of the administration of justice and rule of law, including arrangements for the use of telephone and video technology to continue as many hearings as possible remotely. Among other things, a protocol was quickly published to provide guidance as to the conduct of remote hearings in civil cases. Operational guidance was published separately by individual courts and tribunals addressing practical issues such as electronic filing of applications and claims and the use of electronic bundles for hearings.

In practice, decisions about whether to proceed with hearings during lockdown, and how hearings should be conducted, have been taken by judges on a case by case basis, having regard to the parties’ views where appropriate. The overarching criterion, it has been said, is that whatever mechanism is used to conduct a hearing must be in the interests of justice, to be assessed by reference to the unusual circumstances that prevail.

While a limited number of in-person hearings have taken place, the majority of hearings during lockdown have been conducted remotely. Figures from the courts and tribunals collated in March and April 2020 showed that the numbers of cases being heard remotely each day in England and Wales, with the use of audio and video technology, increased from 1000 in the last week of March 2020, to approximately 3000 by mid-April.

The hearings that have taken place remotely have naturally included urgent hearings, as well as case management hearings and straightforward interlocutory applications. But not all have been of this nature. On 24 March 2020, the Supreme Court conducted its first ever remote hearing. The Supreme Court has since continued to hear appeals remotely, as has the Judicial Committee of the Privy Council. Trials, involving witnesses, have also taken place remotely, though this has been less common. Between 26 March and 1 April 2020, a 7 day trial of a claim by The National Bank of Kazakhstan took place in the High Court, with all participants (judge, legal representatives and witnesses, factual and expert) participating by video conference from England, Belgium, Kazakhstan and the United States. According to the judgment, which was recently handed down, “The hearing was conducted without any technical hitch and all parties co-operated to ensure that the hearing took place efficiently and fairly.”[i] No doubt emboldened by this experience, the High Court has recently refused to adjourn a 5 week trial due to take place next month, rejecting arguments that the technological challenge of conducting a 5 week trial remotely was too great, that it would expose parties working behind the scenes to an unacceptable risk, and that there was a real risk of unfairness[ii].

The preference has generally been for video hearings using video conferencing technology, rather than audio hearings by telephone. Figures show that in April 2020, video technology accounted for just over one-third of the use of remote communications technology across courts and tribunals, and audio technology accounted for just under two-thirds. The task has no doubt been made easier by the fact that the vast majority of the population in England and Wales have access to internet and/or a phone in their home.

The challenge, however, has not only been to keep the wheels of justice in motion, but to ensure effective justice and, so far as possible, open justice.

Unsurprisingly it has been emphasised that every hearing, whatever form it takes, must be a fair hearing. The Courts have been conscious of the need to ensure that parties, particularly lay parties, are able to participate effectively in remote hearings. This issue has arisen most acutely in family cases involving the welfare of children. The Court of Appeal has recently delivered a decision providing guidance on the use of remote hearings in family cases[iii], and amongst the factors to take into account when deciding to proceed with a remote hearing, listed the following: ‘[t]he ability, or otherwise, of any lay party … to engage with and follow remote proceedings meaningfully. This factor will include access to and familiarity with the necessary technology, funding, intelligence/personality, language, ability to instruct their lawyers (both before and during the hearing), and other matters.’

The reported experiences of lay parties have been interesting. In March 2020, the first remote hearing took place in the Court of Protection[iv]. Though the response of the barristers involved in the case and journalists was overwhelmingly positive, the reported experience of the lay party, named as “Sarah” (whose father’s medical treatment was at the centre of the case) was very different indeed. A fascinating piece written by someone who attended the hearing to support Sarah, describes Sarah’s experience, which included feeling as though she was not “seen” in court even when she was giving her witness statement, and feeling that she was unable to get her message across as she would have done in person, stating: “Skype took away from me the ability to look these people in the eyes – these people who have their opinions about my Dad and only knew him through third-hand notes. I wanted to look them in the eyes and make them hear the truth but I was looking at a computer screen.”

A survey has recently been conducted by an organisation called “the Transparency Project”, asking parents and family members who have been involved in remote family court hearings about their views and experiences. The interim results of the survey show that experiences have been mixed. Negative comments included: “[f]elt not listened to and that it was not serious enough” and “[i]t felt distant and at times disengaging.” Some respondents stated that they had preferred a remote hearing, citing reasons such as: the saving of time and money and not having to be in the same room as the other party. One respondent stated that she found a remote hearing less daunting than being in court, and would prefer to complete all future hearings remotely.

The ability of parties to effectively participate in proceedings is of course vital. Also important however is the ability of the wider public to participate in the administration of justice. Open justice is a fundamental principle of English law, safeguarding the ability of the public to participate in and to observe justice being done. The general rule, which reflects this important principle, is that hearings are to be in public. Under normal circumstances this is achieved through hearings taking place in courtrooms which are open to members of the public. Hearings in the Supreme Court are also broadcast live on the Court’s website, and a recording is available to view on the website after the hearing has ended. There are otherwise stringent restrictions on the recording and broadcasting of court proceedings (which, only last year, a court ruled also apply to broadcasting by live-streaming[v]).

How then is open justice to be achieved with the use of remote hearings? The protocol regarding remote hearings, mentioned above, rightly makes clear that “the principles of open justice remain paramount”, and that remote hearings “should, so far as possible, still be public hearings.”  The protocol goes on to explain that this can be achieved in a number of ways, including: (i) one person (whether judge, clerk or official) relaying the audio and (if available) a video of the hearing to a courtroom open to members of the public; (ii) allowing a media representative to log in to the remote hearing[vi]; and/or (iii) live streaming of the hearing over the internet, where the broadcasting of hearings is authorised.

To get around the stringent restrictions on the recording and broadcasting of court proceedings mentioned above, the Coronavirus Act (which came into effect on 25 March 2020) temporarily permits courts and tribunals to direct the broadcasting of proceedings which are conducted wholly as video or audio proceedings, for the purpose of enabling members of the public to see and hear the proceedings (it also permits courts and tribunals to direct that a recording of the proceedings is made). The 7 day High Court trial, mentioned above, was live-streamed online pursuant to this power.

Live-streaming hearings is the optimum solution in open justice terms, but as far as the author is aware, there are few examples of remote hearings in the lower courts and the tribunals being live-streamed. On the other hand the Court of Appeal is live-streaming selected remote hearings, and the Supreme Court continues to live-stream appeals.

As we emerge from lockdown, it is likely that in-person hearings will slowly start resuming in the coming months. But recent events will no doubt leave an indelible imprint on the administration of justice. Indeed, in a recent appearance before the House of Lords Constitution Committee, the Lord Chief Justice made clear that there would be no going back to where we were before the pandemic. Greater use is likely to be made of remote hearings than before and events in the past few months will inevitably accelerate the modernisation of systems and practices. That, at least, can be no bad thing.

 

(Hafsah Masood is a Barrister at Landmark Chambers, London)

The views expressed are personal.

 


[i] National Bank of Kazakhstan and the Republic of Kazakhstan v The Bank of New York Mellon & Others [2020] EWHC 916 (Comm), at para 6.

[ii] Re Blackfriars Ltd (in liquidation) [2020] EWHC 845 (Ch).

[iii] A (Children) (Remote Hearing: Care And Placement Orders) [2020] EWCA Civ 583.

[iv] The Court of Protection has jurisdiction over the property, financial affairs and personal welfare of people who lack mental capacity to make decisions for themselves.

[v] R (Spurrier) v Secretary of State for Transport [2019] EWHC 528 (Admin).

[vi] Pursuant an amendment to the civil procedure rules, where a media representative is able to access proceedings remotely while they are taking place, the hearing is deemed to be a public hearing.

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