Practical Law

An uptake of technology by the courts during the COVID-19 crisis has implications not just for current proceedings, but also for the future of the judicial system and the rule of law. In this blog, we explore how remote hearings are likely to have lasting effects on the judicial landscape.

Short term: pressure for business as usual

HM Courts & Tribunals Service (HMCTS) has had to alter radically the way it operates within a very short period of time. It severely restricted the operations of courts, which are classed as open, staffed or suspended. (However, there are signs that things are beginning to open up again.)

Yet despite these restrictions, 80% of civil and family hearings have been able to proceed in some form since the lockdown began, and most criminal courts remain open: the Old Bailey, for example, is proceeding with three ongoing trials. Other hearings, such as for pleas and sentencing, have continued by Skype or telephone.

However, the Crown Prosecution Service has advised prosecutors to consider accepting guilty pleas in order to help manage a mounting backlog of cases: 1,400 are reportedly already awaiting transfer from the magistrates’ court to the Crown court. Short-term options which are being explored include reducing jury sizes, judge-led trials, and using sports halls and hotels for court hearings. Furthermore, it has been reported that judges have suggested that there may be plans to abolish jury trials for triable either-way offences. Instead, the cases would be heard by a judge and two magistrates. This would be a real erosion of our criminal justice system.

Prosecutors are also keen to limit the effects of the crisis as far as possible. The Financial Conduct Authority is still gathering evidence and has been interviewing witnesses through video links. The Serious Fraud Office has issued guidance explaining that case teams will send “relevant information relating to adapted ways of working” to defendants.

Medium term: a shift in patterns

With the push to continue business as usual, parties have had to get to grips quickly with etiquette and best practice for remote hearings, in part with help from HMCTS guidance. Awareness of different time zones, juggling multiple screens and even working out if a participant has dropped off a call are all issues with which practitioners have had to grapple over the past months.

But the effects extend beyond the virtual courtroom, with a noticeable shift in some of the usual litigation trends:

• An increased demand on the court system has led to the promotion of alternative dispute resolution, such as mediation and arbitration.
• Parties to civil litigation can now agree longer delays between themselves without court approval.
• Parties are facing increased costs (including legal and business fees) due to the delays. Parties must still act reasonably to avoid costs sanctions.
• New claims have fallen. In the commercial courts, this has been by as much as 50%.

In short, as litigation becomes more difficult, lengthy and costly, parties are finding ways to resolve their disputes that don’t require recourse to the courts.

Long term: a permanent change to our well-known courts system?

The Lord Chief Justice has expressed doubts that the courts will operate in quite the same way ever again. Many judges have found virtual hearings convenient and (on the whole) successful, leading to suggestions that the technology could be here to stay. Such technology could also help to alleviate the financial pressures increasingly faced by courts.

This triggers crucial questions, not only for the courts, but for judges, practitioners and clients.

First, the impact of remote hearings on the proceedings (and their shortcomings when compared to traditional, in-person hearings) must be considered by parties, and ultimately by the presiding judge.

Although the common theme from cases operating remotely is that judges are doing all they can to make such hearings open, it is well documented that virtual meetings are more draining than those carried out face-to-face. When the novelty of advocating from home has worn off, barristers who spend most of their day in court may start to feel the effects of long stretches of advocacy that require even more concentration than before. A mix of virtual and in-person hearings could lead to mad rushes to and from court, as well as confusion about whether a particular hearing is scheduled to take place in court or at home.

When deciding whether to apply for a hearing to be virtual or in-person, parties will have to consider a number of factors. Would it be impractical for witnesses or parties to travel to court? Would witnesses be more effectively cross-examined in person, rather than on a fuzzy video with occasional (or regular) drops of audio? If one party supplies the technology for the hearings, would it be able to recover those costs? In many cases, there are a number of rules determining the location of a court where a claim must be filed (for example, that they must be near to where the defendant is based). Will these still be relevant if hearings can be held online?

When considering whether to agree to an application for a virtual hearing, the judge will also have to juggle several competing factors. Would a remote hearing free up time for other hearings to be listed that day? Should there be a presumption that more supposedly serious or important hearings are held in person? Will the judge use his HMCTS laptop, or one provided by the parties? If the latter, is it practical for the judge securely to store and manage different laptops, each pertaining to one of the various matters over which they are presiding?

Second, we could well see a permanent shift in the use of courts to settle disputes. The drop in new claims and the increase of ADR has already been noted. If virtual hearings turn out in the long term to be fiddly, time consuming and unsatisfactory, parties may think again about whether English courts, which have traditionally been the forum of choice for clients all around the world to settle their disputes, are more trouble than they are worth.

The courts will also have to convince parties (particularly those with sensitive matters that might normally be held in court behind closed doors) that their conference software is sufficiently robust and secure.

Finally, and even more broadly, the government and courts will have to consider carefully the impact of virtual hearings on the rule of law and the interests of justice.

Without fair and equal access for all to tech equipment, the rule of law could be diminished. By enforcing virtual hearings, are the courts in effect only open to those who can afford high-end laptops and fast internet connections?

Furthermore, open courts reflect the wider values of democracy and public spaces. The courts are not only spaces where people go to be tried and give evidence, they are physical symbols of the rule of law. They express the aspiration for justice and provide a physical interaction between the rule of law and the public it serves.

Conclusion

The answers to these questions will take time, if they are indeed ever resolved. In the meantime, courts, lawyers and litigants will continue to navigate the tricky waters between compromise in the face of necessity and practicality, and protecting their own interests.