Virtual courts, real justice

The lockdown has shown that online courts are here to stay. Neasa MacErlean looks at the experience of local government lawyers over the past few months and the lessons to be learned.

Not much is certain about the post-covid future but one legal area would be worth having a bet on — that virtual courts will continue. They kept many parts of the system going during lockdown; have proved popular in numerous quarters; and, in local government, offer cost and time savings and widen out the possibilities for in-house teams to carry out their own advocacy.

But even the most enthused users can see the downsides and limitations. And, while technical difficulties can largely be solved, it is harder to imagine virtual courts hosting trials, inquests and civil cases where the demeanour of witnesses is itself part of the evidence.

What happened in lockdown and after
Remote courts began even before lockdown. Four days before the prime minister made that fateful announcement on 23 March to cloister our society, Sir Ernest Ryder, Senior President of Tribunals, and colleagues, switched the usual two-to-three member panel hearings in Tribunal Hearing Centres and hospitals to remote single judge hearings. Covering 14 different types of tribunal (from the inquisitorial Mental Health to the adversarial Immigration and Tax), these fora had processed 4,000 hearings a week before. Using BT MeetMe for audio hearings and Kinly CVP and others for video, the tribunals managed to carry out over 2,500 a week (63%) as well as bail and some face-to-face hearings, as Sir Ernest explained in a webinar organised by the Administrative Justice Council.

Internationally, remote courts were up and running in 56 countries by mid-July 2020 (including Nigeria, Brazil, Azerbaijan, China and the US), according to a study by Richard Susskind, President of the Society for Computers and Law, and the remote courts website.

In the UK, the Supreme Court, according to Professor Susskind’s study, put the technology in place within a week, had its first remote hearing on 24 March and had heard 17 cases by video and given 24 judgments remotely by the start of August. The Lord Chief Justice gave a statement in July, saying there would be “more audio and video hearings”, “new IT equipment” for remote hearings, and that the “full functionality of the Cloud Video Platform (CVP) would be rolled-out across Criminal, Civil, Family and Tribunals.

Over seven in ten (71%) of local government legal teams have participated in remote trials, according to the Local Government Lawyer/LexisNexis survey of heads of legal departments.

Overall Views
Local government legal teams stand to gain significantly from a continuation in virtual courts, says Tim Briton, National Lead for Litigation and Licensing at LLG (Lawyers in Local Government). “If the Courts were to dispense with remote hearings at this point, the majority of local government litigators would see this as a backwards step,” he says. “Using technology to enable remote hearings give us extra time in our working day so we get more done – and there is more work to be done now than ever.”

An early survey (based on research in April) from the Nuffield Family Justice Observatory found less enthusiasm on family courts — with 22% of respondents positive, 21% negative and 57% with mixed views. A later survey (published in June) from Lawyers in Local Government, Snap Shot Survey - Virtual Court Hearings, found 90% rating their remote experiences positively, and only 10% negatively. And 83% of respondents wanted virtual hearings to continue. Many other surveys have been carried out and reached similar conclusions.

Gerard Forlin QC, of Cornerstone Barristers, acting for nine of the 11 families in the Shoreham Air disaster inquest, took part in a preliminary hearing through Zoom in June this year. Giving a response that many will share, he says: “It was a very good idea to do it at that stage. It would have been too dangerous to have all those people — perhaps 100 — in one room…. I can see that being repeated after the vaccine becomes available in certain situations. But in more substantial hearings — especially where witnesses are involved — there will be less desire.”

Advantages
These are mainly seen as: more efficient scheduling and time management of cases; time and cost savings; easier last-minute liaison among clients and representatives; the ability to improve the online experience (by, for instance, providing second or third screens to lawyers); giving more opportunity to local government lawyers to develop their advocacy skills; and the fact that proceedings are usually recorded.

Anna Dannreuther, a barrister at Field Court, says: “Local government lawyers and social workers have a busy caseload, and circumstances can change last minute. Remote hearings make it easier for the whole team to communicate online prior to, and during, the hearing, meaning the most up to date and informed instructions are acted on. The ease and reduced cost of attending remote hearings also means that more members of the team can attend hearings than before, which can assist with the efficient resolution of the case, as those with detailed knowledge of a particular aspect of the case can feed in as appropriate.”

One local government lawyer whose staff prefer remote hearings says: “It has enabled us to do more advocacy and manage time better due to more certainty over court times. Electronic bundles have worked well and are preferred.” Harriet Townsend of Cornerstone Barristers says: “Remote working can be beneficial for training/sharing of information within the authority in that those who might not have been able to justify attendance in person, can join and observe the proceedings.”

Disadvantages
These are mainly seen as: the more tiring nature of virtual hearings; difficulties evaluating expressions and other human responses from witnesses; technological problems; loss of opportunity to negotiate on the court room steps; difficulties for technophobes and people without remote access; not being able to ‘hand up’ additional documents (though it can be done electronically if the parties co-operate); and a potential lack of courtroom gravity.

Dannreuther says that “submissions of mine have gone unheard as the connection has cut out, since, unfortunately, the technology does not yet fully replicate the live in-person experience”. She continues: “Equally, in-person hearings are likely to be more appropriate where the issues are particularly sensitive and the parties are lay persons, as it is likely easier to understand what is happening in the physical court setting, and the parties may not feel that a telephone hearing is appropriate to deal with issues such as child removal or decisions that affect their fundamental human rights.”

Townsend is particularly concerned about parties with no lawyers to help them: “If one or both sides are not professionally represented, the risk of unfairness, confusion, and delay is significant. It is possible these risks could be addressed by careful guidance and by costs sanctions, but in Aarhus claims (broadly speaking environmental claims) this may well not be effective due to the costs protection enjoyed by the Claimant. I would therefore suggest the courts proceed with extreme caution in cases where one or both parties is unrepresented.”

Witnesses
Witness cross-examination is particularly problematic, according to the Nuffield report and many users. A virtual court is “not usually as effective a forum for examination of witnesses for a host of reasons”, says Townsend. Two factors she highlights are that “the witness may be alone and unsupported/guided/controlled by their own advocate”; and that “it is harder for the tribunal to interpret the demeanour of the witness and therefore to judge any dispute of fact”. Nuffield raises specific concerns relating to “parties in cases involving domestic abuse, parties with a disability or cognitive impairment or where an intermediary or interpreter is required”.

However, there is widespread agreement that procedural hearings and the testimony of expert witnesses work well enough online to make them worth continuing in future. Sir Ernest Ryder says that the Tribunals are working on deciding “whether a remote way of working ought to be a sustainable additional channel for use for some of our users in some types of claim”. Procedural hearings would be included, he says, and even some kinds of substantive ones.

Forlin suggests a third route: “There may be hearings in the future that are hybrid — part live, part Zoom and possibly with some expert and technical witnesses appearing by Zoom.”

The future
A body of information is building up on how to run cases better in future. The Nuffield report includes a section on “Examples of good practice and suggestions for future practice”. And tribunal judges have been required to ask parties about their experiences and to include the issue in their judgments. One High Court decision that will frequently be looked at is A Local Authority v The Mother & Ors [2020] EWHC 1233 (See also: Guidance from the High Court on adjournments in care proceedings during the COVID-19 pandemic) in which Mr Justice Williams adjourned virtual care proceedings after concluding, on a balancing of conflicting human rights, that the evidence should be heard in person.

HM Courts and Tribunals Service (HMCTS) is working on improving the technical aspects of remote hearings so that these can continue in future. Early on in the covid crisis, HMCTS identified eight case and user types needing additional support (including domestic violence, probate, housing possession and social security tribunals), and published a ‘Vulnerable User Action Plan’. Such initiatives fit Ministry of Justice initiatives to support the “digital transformation of the UK legal sector”.

Local government lawyers are generally making the case for remote courts to continue. Briton, who is also Gateshead Council’s Licensing, Litigation, Employment and Education Manager, says: “We should not lose sight of the fact that [remote] hearings allow the parties to hear and be heard.”

Neasa MacErlean is a freelance journalist.