A virtual judicial system: could COVID-19 change the way we work forever?

During the first week of lockdown, as we were all suddenly launched into a world lacking human contact and increasing conversations with our screens, I represented a client at the Supreme Court’s first ever remote hearing: Fowler v HMRC.

It was a privilege to be part of the solution to keep the justice system moving in the midst of disruption. The justices were very conscious that it was an unfamiliar and unusual situation, and there was a real sense of humility and sensitivity. It was heartening to see how adaptable everyone was, and a great deal of care went into ensuring everyone felt that they had a fair and proper hearing.

A new normal?

The success of the case raises the question of whether a virtual justice system could become standard practice in future, and even a preferred option in some cases. I believe it could have lasting positive implications for the legal sector and our clients.

Let’s take the tax tribunal system as an example, where the backlog is already significant. Of course, emergency cases should take precedence. However, it would be unnecessary and unacceptable to push back hearings that are already related to transactions executed a significant period of time ago, when we can collaborate and use remote working technologies and practices to work through it. There are obvious procedural and practical challenges. We’ve been thrust into an artificial world of communication where you can’t take in someone’s body language in the way in which we are used to. Yes, it’s slightly artificial, but we need to get comfortable with it. And that includes cross-examining a witness. There’s no real reason why it can’t be done by video link; tribunals would (relatively) routinely take video link witness evidence before COVID-19.

There is a huge opportunity here for the system to become more accessible and agile. From what we have seen, across the judicial system, the courts and tribunals are responding positively and flexibly to the challenges we are facing. When we get to the other side, everybody will be changed by what we’ve been through and greater use of remote hearings could be the way we can offer our clients a better, cheaper service.

Tips for virtual cases

  • Test your IT. You may find that your WiFi doesn’t support high-quality video streaming at the same time as having numerous other programs open. (I also reminded my kids not to consume high levels of WiFi at the same time as the hearing).
  • Test your lines of communication. Not being able to have the usual dialogue with my barrister took some getting used to. There were no yellow sticky notes, and no taps on the shoulder. But thanks to the practice runs beforehand, I found that using 4G to text and leaving the WiFi to stream the hearing were simple workarounds.
  • Have a contingency plan. Prepare for the worst and assume your IT could go down completely. Have two laptops open in case one goes down, and have a colleague on hand who can take over for you in another location.
  • Find somewhere quiet. This may sound obvious, but take note of local building works. When Fowler v HMRC was heard, building activity had not officially ceased, but my neighbour’s builders were happy to agree not to use the hammer drill during the working day! You’ll also need co-operation from your family or housemates. Find a quiet room, and stick a note on the door!

One thought on “A virtual judicial system: could COVID-19 change the way we work forever?

  1. As counsel for Mr Fowler, I echo Angela’s comments. There is no doubt however that being in a courtroom where the interaction with judges is more natural is a lot easier. The quality of every participant in the hearing’s camera, computer and broadband capacity shows.

    I have also previously cross-examined an expert witness who was in California by video link. That also posed some challenges as it was difficult for the court to observe the witness’s demeanour (that evidence was ultimately and correctly ruled inadmissable on appeal Macklin v HMRC [2015] UKUT 39 (TCC) at paragraph 37).

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