Opposition is growing to the government juggernaut of scrapping live courts, even for trials, with the judiciary in particular expressing its clear and certain view that austerity and cost-cutting, not access to justice, are behind the move.On 25 January 2019, Lord Burnett, the Lord Chief Justice and Sir Ernest Ryder, Senior President of Tribunals, issued a joint message reporting on the response of the judiciary to proposed changes: Jurisdictional responses to the “Judicial Ways of Working” exercise.
Responses were received from or on behalf of over 10,000 judges and office holders, with nearly 800 attending local meetings.
The Heads of Jurisdictions summarise the responses in four documents, relating respectively to crime, civil, family and tribunals. Here I look at the civil jurisdiction, with this section being prepared by the Master of the Rolls and the Deputy Head of Civil Justice.
The judiciary was highly critical of the move to video hearings for contested trials:
“One common theme was that they were being proposed in the name of cost reduction, but at the risk of justice.”
Most judges expressed the firm view that final hearings, that is trials involving oral evidence, are not suitable for video hearings, as judges needed to watch as well as to listen. That meant being able to watch not just the witness, but also the parties, representatives and supporters in court.
Judges are concerned that evidence could be manipulated or tampered with, as it would not be clear who else was in the room or behind the camera. Another concern related to security and confidentiality of the court process, including the ease with which they could be recorded and posted publicly on social media. Concern was also expressed about the lack of gravitas of hearings conducted by video.
In a small pilot in the First-tier Tax Tribunal running from March to July 2018, over one third of cases could not proceed due to technical issues.
There was widespread acceptance that matters such as directions hearings, and some specified interlocutory applications were suitable for video hearings.
Few query the need, and potential benefit of IT, but the “… trenchant view, shared by many, was that IT of sufficient quality, and the provision of proper training was vital to the success of reforms.”
Dame Elizabeth Gloster, former Court of Appeal Judge and now an arbitrator, in a recent article in the Harbour Litigation Funding journal (Technology In Commercial Arbitration – Time To Throw Away The Comfort Blanket?), while accepting the benefits of IT in the context of arbitration raised key questions:
- Does the arbitrator, on the side, print out hard copies of all the documents that he or she thinks relevant to the case?
- Can counsel as effectively cross-examine a witness by video-link?
- Is an arbitral tribunal able adequately to judge credibility of a witness by seeing that witness “perform” on screen?
- Should a losing party feel resentful that he or she has not had a fair hearing where all or part of the arbitral process has been conducted in a remote virtual environment as opposed to in person?
“While some, perhaps minor, witnesses can usefully be cross-examined in a virtual environment, where a substantive challenge is mounted to a witness’ evidence, both the tribunal and cross-examining counsel may need to have the witness there in person. That is not only so that the tribunal can more adequately assess credibility and reliability, but also so that counsel can maintain the impact and momentum of cross-examination. Both can be lost where cross-examination is conducted remotely.”
No one is suggesting a return to the days of a two-hour round trip to court for a 10 minute agreed directions hearing, but trials are something different. The reason appeal courts so rarely interfere with the findings of fact of trial judges is that the trial judge has seen and heard the witnesses. The same is true of juries. Video trials risk throwing all of that away. Justice done on the cheap is not justice, and the old phrase about justice needing to be seen to be done, as well as being done, was not a reference to trial by YouTube.