Necessity is the mother of invention, and the coronavirus pandemic has given birth to what some regard as a monster and others a timely wunderkind. But however you view it, the remote court is not just the temporary solution to a present emergency. In one form or another it is here to stay.
So we need to ensure that it can accommodate the needs of justice, one of which is, in the words of Lord Hewart CJ in R v Sussex Justices, ex p McCarthy  1 KB 256 at 259 that “justice should not only be done, but should manifestly and undoubtedly be seen to be done”. However remote, it must be open, accessible and transparent.
A rapid response
Part of what concerns us is simply the terrifying speed of change. Barely a month ago I wrote an article in The Lawyer quoting the government´s then recently published coronavirus Action Plan, dated 3 March 2020, stating that “The Ministry of Justice’s HM Courts & Tribunal Service have well established plans to deliver key services to protect the public and maintain confidence in the justice system”. By 23 March what became the Coronavirus Act 2020 was on the statute book, amending earlier legislation and enabling rules and directions to be made permitting public and media access to remote hearings broadcast via the internet. A flurry of practice directions and guidance duly followed.
Jury trials were initially allowed to continue, but less than a week later, during which practitioners such as The Secret Barrister were complaining that “lives are being put at risk”, the Lord Chief Justice had changed his mind and said no new trials should begin and those in progress should be continued only if safe to do so. A month later, the latest HMCTS daily operational summary is stating that “There are no Jury trials currently underway” and that they “do not know when jury trials will start again”. A network of “priority courts” remains open, for what are described as “essential face-to-face hearings”. All other court business, if done at all, is being done remotely.
Open justice goes virtual
In the civil and family courts, proceedings conducted by Zoom, Skype, Teams and other platforms have not only been conducted with legal representatives, parties, witnesses all participating remotely, but these proceedings have been “attended” by members of the public, and reported by the news and specialist media – including law reporters hungry for precedents. Cases are now routinely listed with an email address or other details enabling those wishing to access the hearing to find out how to join. Efforts to involve journalists have been praised by the Press Gazette.
A striking feature of these developments has been the apparent lack of centralised planning and provision of suitable technology. This is all the more surprising given that HMCTS has been in the middle of a massive digital upgrade to the justice system and has been actively promoting the idea of online courts and virtual hearings for a number of years. The lockdown offered the perfect opportunity for a rapid roll out of remote hearing technology. However, it seems the projected Cloud Video Platform (CVP) was not ready. Instead, there has been what one judge called a “smorgasbord” of different approaches adopted by judges or even by law firms and advocates using their own app accounts.
In The Remote Access Family Court (guidance to practitioners already in its third edition), Mr Justice MacDonald explained that
“it is simply not going to be possible at this point, pending the introduction of CVP, to arrive at a common agreement as to a single ‘off the shelf’ software platform to be used in the interim in all cases. In the circumstances, this paper proposes that … the court and parties choose from a ‘Suite’ or ‘Smörgåsbord’ of IT platforms, subject always to the cardinal requirement that at the outset of each case the judge and parties consider and settle on the platform that is to be used in that case.”
An example of this free-for-all approach was what was reportedly the first fully virtual High Court trial, in the Business and Property Courts, in National Bank of Kazakhstan v Bank of New York Mellon before Mr Justice Teare. The case was listed with links to several sessions on YouTube, the recording and publication of which appears to have been managed by one or more of the solicitors’ firms in the case. You could link to the hearing during session, and see counsel and the judge in their own living rooms or studies. A daily transcript was later provided by Stewarts, the claimants’ solicitors, and this remains accessible while the video (which was not published via the official Judiciary YouTube account) is no longer available. (One hopes, however, that in line with the latest protocols, it has been saved in some official archive.)
There have been occasional technical hitches. In one case in the Queen’s Bench Division (ironically the hearing concerned open justice issues) the judge was audible but not visible to participants because his camera didn’t work. The remote hearing in the Judicial Committee of the Privy Council of an appeal from Trinidad and Tobago could not at first be live streamed owing to a technical problem, but eventually got under way and the video is available on catchup, like all that court’s recent cases.
There have also been problems of engagement for lay participants. A case in the Court of Protection heard remotely via Skype was felt by the judge and all the lawyers to have gone well. One barrister thought it “very effective, and allowed for full and fair participation by all parties”. But the perception of the lay parties was very different according to one of them, Celia Kitzinger, in a widely-read post on the Transparency Project blog, Remote justice: a family perspective. The informality and barristerial banter to which everyone was privy detracted, she felt, from the respectful formality of a court hearing, and the visual concentration on those speaking made others, including the lay parties, feel invisible and ignored.
The need for research
The coronavirus pandemic is global and so has been the response, with many countries adopting the same approach to the conduct of litigation by remote hearings as we have done here (and China, where the outbreak began, did before us). To chart these developments around the globe, the Society for Computers and Law has set up a new website, Remote Courts Worldwide, which will in time provide a useful body of research.
There have been calls for much more systematic data capture and research, however. In her briefing paper on Coronavirus Bill, Courts and the Rule of Law, Dr Natalie Byrom of the Legal Education Foundation (LEF) proposed among other things that “The impact of fully video hearings on the ability of legal representatives to effectively communicate with their clients must be monitored” and “All remote hearings must be recorded, with transcripts of remote hearings being made available as soon as practicable to parties to the case and third parties”.
Dr Judith Townend of Sussex University, on the Justice Gap, agreed. “Is there any valid reason why recordings can’t be made of all remote proceedings”, she asks, both to promote public access and open justice and for the purposes of later research. She proposes the National Archives as a possible host.
Penelope Gibbs of the charity Transform Justice drew attention to the fact that while there is some press coverage of remote criminal hearings in the Crown Court, magistrates’ courts (where the majority of criminal cases are heard) have become practically invisible to the public because of the difficulties of accessing information about hearings and “government guidance prevents travel to and attendance at court just for interest”. She asks, Is closed justice a price worth paying to keep courts running?
Fit for the future?
Although one of the lessons we will have learned from this crisis is that not all cases are suited to remote disposal, the experience will have taught us that for a lot of cases – far more than perhaps we imagined – remote hearing is a viable alternative to the traditional court hearing. While the platforms we have been using may not conform to the highest standards in terms of security and reliability, the fact that litigation has been made to work is itself an important proof of concept.
And there are other benefits, as family law solicitor-advocate David Burrows notes in one of series of blog posts from rural Burgundy reflecting on the effects of the current lockdown, including its economic and environmental benefits:
“On-line justice has worked for courts. The idea must be built on massively. Given internet access and electricity, immediately time is used more efficiently; less money is spent on travel and on fuel where travel is by plane, diesel train or by car. There may be issues of open access to courts – the open justice principle – but that is another subject for careful review…”
The preservation of open justice has certainly been an issue. But there are opportunities, with the recommended recording and transcription of remote hearings and the storage of such information for public access and academic research, for something even more accessible and open than the iconic public gallery in a physical courtroom. The question is not whether such a thing is possible but, as with other new developments, whether we are willing to embrace it.