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In the UK the Covid-19 lockdown has accelerated the use of virtual court hearings, but will it bring permanent changes to the judicial process?


Will there be virtual court hearings in the UK after the exceptional circumstances of lockdown and social distancing have been put behind us?



COVID-19 HAS LED TO VIRTUAL HEARINGS IN THE UK SUPREME COURT
COVID-19 HAS LED TO VIRTUAL HEARINGS IN THE UK SUPREME COURT
The COVID-19 pandemic has led to unprecedented restrictions on social and family life, and to a world-wide increase in virtual business meetings and home-working. The UK is no exception. There have been virtual sessions of the UK Parliament, virtual consultations by doctors with their patients, virtual lectures and seminars for university students who have continued their studies while excluded from campus, and virtual hearings in tribunals and courts in the various legal jurisdictions in the UK. Home-working by employed adults, normally involving about 12% of the workforce in the UK, climbed to 44% of the adult workforce during the lockdown.
 
As lockdown has eased, the overwhelming sentiments of the UK population are a wish for normality, a need to be reunited with family and friends, and a desire for memories of crowded pubs and restaurants to become reality again. Most people would also welcome a return to working life as they knew it before the pandemic, as soon as possible, even if subject to social distancing to keep people safe. Yet some of the changes we have seen during lockdown, like more home-working, and more virtual meetings, may be a foretaste of changes which were in the making in any event, and have been accelerated by the Covid-19 crisis. That is the case for the judicial process, and for the way lawyers represent their clients before courts and tribunals in the UK.

Lockdown brings virtual hearings to UK courts

Covid-19 has had a huge impact on the judicial process in the UK. The UK has three distinct legal jurisdictions: England and Wales, Scotland, and Northern Ireland, and each has its own court system, though that of England and Wales is by far the largest of the three, serving 90% of the UK population. The Supreme Court is the final court of appeal for the whole of the UK.
 
Over the three jurisdictions, thousands of court hearings have been replaced by virtual hearings, via telephone, or video conferencing links. For most judges and lawyers, working from home and connecting to the virtual courtroom through platforms such as Skype, Zoom or the Kinly Cloud Video Platform,[i] has been a wholly new experience. There have been stories of small children making surprise appearances in the virtual courtroom, and rumours of lawyers and even judges wearing business attire from the waist up, while dressed in jeans or even pyjamas where the laptop camera cannot see. In some cases, all those involved have participated remotely, while in others, judges have been present in the courtroom, with social distancing in operation, with some parties and/or witnesses and/or legal representatives participating remotely.

Criminal trials

In England and Wales, serious criminal trials, which involve juries of 12 members of the public, were initially suspended, but cases started again in the second week of May, with social distancing measures in place in the courtroom. In Scotland, it is expected that jury trials (which involve 15 jurors) will start again in July, with social distancing measures in place. In England and Wales, some trials in lower criminal courts had been conducted with virtual hearings before the coronavirus crisis, as part of an updating of the court system designed to make it more efficient and to use technology to best advantage. After lockdown most such trials have been conducted using virtual hearings.

In the UK the Covid-19 lockdown has accelerated the use of virtual court hearings, but will it bring permanent changes to the judicial process?
Justice of the Peace (JP) Ben Yallop (pictured here) described on the website of the Courts Service of England and Wales his experiences sentencing minor offenders from home.[ii] A JP, or Magistrate, is an unpaid part-time judge who normally sits with two or more other JPs in court. For minor offences such as travelling without a bus ticket, or TV licence evasion, a single JP sits in court, assisted by a legal adviser. On 28 April, Ben exercised his jurisdiction for the first time virtually, using Skype for Business, sentencing offenders who had pleaded guilty to the offences with which they had been charged.

Virtual hearings in the UK supreme court part of global trend

The UK Supreme Court held its first remote hearing on 24 March, and all hearings since then have been virtual hearings. Justices and lawyers for the parties participate from home, and the proceedings are live-streamed via the Supreme Court website, in the same way as actual hearings are live-streamed. To put this in a global context, as one expert, and technology adviser to the Lord Chief Justice of England and Wales, reports: “The supreme courts of Brazil, China, India, and Singapore are working similarly… the migration from physical courts to digital alternatives is taking place on five continents and in most advanced jurisdictions.”[iii]

Virtual hearings already a feature in England and Wales

Virtual hearings have been conducted with success in the civil courts, and in appeal courts, in all three jurisdictions in the UK, and have been employed in the majority of cases which have been heard since lockdown.
 
One reason the court system in England and Wales was able to react so speedily to lockdown was that an ambitious £1 billion programme of technological reform had been initiated in 2016. This reform was designed to make the court system work better for everyone, from judges and legal professionals, to witnesses, litigants, and the vulnerable victims of crime, as well as to make it more cost-effective.
 
The lockdown forced courts in the UK to resort to virtual hearings wherever possible in order to keep down the backlog in criminal, civil and family cases. But just because a virtual hearing is possible, in technological terms, in a particular case, it does not follow that a virtual hearing is the best option in the interests of justice. The Ministry of Justice had made it clear in September 2016 that in England and Wales virtual hearings would become a feature of the judicial system, but only in appropriate cases:
 
“Over time, the work of the courts and tribunals will use online, virtual and traditional hearings as best meets the circumstances of the case. As new technologies bed down, we anticipate that more and more cases or parts of cases will be carried out virtually or online (emphasis added).”[iv]

Virtual hearings are not the best option in all cases

Virtual hearings work better in some legal contexts than in others, and particular care must be taken not to lower standards in criminal cases, where changes might affect the human rights of defendants.
 
Since June 2018 some hearings to decide whether accused persons in criminal cases should be detained pending trial have taken place remotely. A video platform has allowed the attendance of detained defendants, defence and prosecution lawyers, probation officers, and interpreters. Researchers at the University of Surrey produced a detailed evaluation of the use of virtual hearings in such cases. Their report was published in March 2020, [v] shortly before actual hearings in court buildings became impossible because of the lockdown, and there was a sharp increase in the use of remote hearings. The researchers revealed features of the virtual hearings which might reduce the quality of the process and the rights of defendants. These included:
 
  • The loss of non-verbal communication in the virtual hearing might inhibit the ability of defence advocates to know when defendants might wish to speak to them.
  • Appearing over the video link could make defence advocates less effective.
  • Video court was seen as being more impersonal and former defendants commented on the inability to see family members sitting in the public gallery during the hearings.
 
Practical solutions to problems like this might be found within the virtual hearing model, but in the criminal justice context in particular, maintaining the quality of the judicial process and the human rights of defendants must always be a priority.

Virtual hearings in some cases part of a “service to consumers” approach to the judicial process

The position in many civil and family cases is very different. In such cases, the courts reform programme for England and Wales sees litigants as users of a service provided by the courts system, and aim for that service to provide “a seamless end to end journey for users,” which “is sensitive to their needs, and enables them to start their case and set out their dispute as simply as possible.”[vi] The aim has been described by the Ministry of Justice as being “to build on consumer-focused models.” The Ministry of Justice explains:
 
“Users will be able to opt to resolve simple disputes online with the support of a mediation service, and if that is not appropriate, progress it under the case management of judges to resolve the dispute online, or at a hearing they can attend by video, or in person in a court or tribunal room.”
 
Here we see a glimpse of a future judicial process embracing a mix of online dispute settlement procedures, mediation, virtual hearings, and hearings in a conventional courtroom setting. The Covid-19 lockdown accelerated the use of remote hearings in civil and family cases, at all judicial levels, and in all three UK jurisdictions. In some cases the experience has been favourable, and the use of virtual hearings been seen as an advantage. It is said that one specialist tribunal, dealing with special educational needs and disability, has worked so well with virtual hearings, that it has actually reduced its backlog of cases.[vii] But how typical is this?
 
In some cases a remote hearing may not be as good as an actual hearing at delivering the quality of justice litigants are entitled to expect. In family cases concerns have been raised that the lack of face-to-face contact made it difficult for participants to read the reaction of a party or witness and to communicate in a humane and sensitive way. Problems have also been identified in cases involving domestic abuse, parties with a disability or cognitive impairment, or where an intermediary is required (an intermediary is a person who supports a vulnerable person involved in court proceedings).[viii]
 
Remote hearings perhaps work best in cases where there are few witnesses, and most of the arguments are legal arguments. This would include many cases involving commercial disputes, judicial review of the legality of government action, and appeal cases. The Covid-19 crisis led to the first virtual hearings in Scottish appeal cases, and the Chief Executive of the Scottish Courts Service commented:
 
“While this is an immediate response to Coronavirus there is no doubt that the learning will inform our thinking to make virtual courts a permanent addition to our Scottish courts.”

London’s commercial court uses virtual hearings to link lawyers, parties and witnesses in different countries

The Commercial Court in London hears and decides a wide range of commercial disputes, including contracts, insurance, banking and financial services, and carriage of goods by sea. Seventy-five per cent of the Court’s work is described as international, so it is common for one or more parties and for witnesses to be based outside the UK. One such case was the National Bank of Kazakhstan v. The Bank of New York Mellon. The case was heard virtually between the 26 March and the 1 April, and judgment was given on 22 April. The judge, counsel and solicitors participated from their homes by video link and the witnesses did so from their homes or offices abroad in Kazakhstan, Belgium and the USA. The proceedings could be watched on screen in an actual courtroom and they could also be viewed online.[ix] It is difficult to avoid the conclusion that, in some commercial cases at least, virtual hearings could provide an effective and cost-effective option, even though the subject-matter might be complex, and witnesses are involved.
 

UK supreme court adept at virtual hearings, but actual hearings, in London and regional capitals, are seen as a means of direct connection with the public in all

The Supreme Court has already been mentioned as one of the UK Courts which has been using virtual hearings during the lockdown. Since the Supreme Court’s caseload involves deciding points of law, its work might seem ideally suited to the use of virtual hearings. Perhaps particularly so in cases where the appeal is from an appeal court in Northern Ireland, or Scotland. In such cases, a virtual hearing would save the travel and hotel costs of lawyers presenting the case in London, who were based in Northern Ireland or Scotland. Yet virtual hearings may not for constitutional reasons be felt appropriate in all such cases. In recent years the Supreme Court has held hearings in Scotland (Edinburgh), Belfast (Northern Ireland), and Wales (Cardiff), as well as London. The then President of the Court, Lady Hale, emphasised in 2019, on the occasion of the Supreme Court’s first sitting in Cardiff, that the Supreme Court is the Supreme Court of the whole of the United Kingdom, and made it clear that she thinks it important that people in all parts of the UK can attend actual hearings of the Court if they wish to. This sounds like the voice of a Supreme Court which is determined to maintain direct public accessibility to its hearings, and I would be surprised if, after the Covid-19 crisis, the Supreme Court chooses to make extensive use of virtual hearings.

A positive future for virtual hearings in the UK

So, will there be virtual court hearings in the UK after the exceptional circumstances of lockdown and social distancing have been put behind us? I think that there will. Virtual hearings were being increasingly used in England and Wales anyway, as part of the plan for a more flexible justice system, in which virtual hearings could reduce cost to the taxpayer, and increase convenience for litigants. In Scotland, we have heard that first-hand experience with virtual hearings in appeal cases is likely to lead to their continued use, at least in some cases. Virtual hearings can work well at different levels of the judicial system, when they are seen as a practical alternative to hearings in the physical courtroom setting. The ideal case is perhaps one in which the parties themselves see a virtual hearing as a more convenient alternative than an actual hearing. This could be as true, for example, in some family cases (where, say, the parties are essentially in agreement but a hearing and court order are required), as it is in some international commercial cases, such as that referred to earlier, where all concerned are professionals likely to be at ease with the virtual environment. More care is required in using virtual hearings in those cases where it could make a difference if the nuances of body language were lost in the virtual environment, and where there is a risk that communication between parties and their legal representatives may be obstructed by the lack of physical inter-action. But on balance my forecast for the future of virtual hearings in the judicial process in the UK is a positive and optimistic forecast. Technology, including virtual hearings, has got a lot to offer to the justice system, and it is up to judges and lawyers to make sure that it offers better justice, cheaper justice, and faster justice.


[[i]] Peter Begbie at Scottish law firm Brodies LLP has written that there is an emerging consensus about the platforms that can be effectively used for a hearing and these include WebEx, Skype, Zoom, Microsoft Teams and Blue Jeans.  In May the Courts Service for England and Wales announced the roll out of the Kinly Cloud Video Platform (CVP) for Criminal, Civil and Family courts.
https://brodies.com/blog/dispute-resolution/a-virtual-reality-hearings-in-a-covid-19-world/
[ii] https://www.judiciary.uk/announcements/supporting-the-justice-system-from-home/
[iii] Richard Susskind
, Financial Times, 7 May, 2020, p. 23.
[iv] 
Transforming Our Justice System, by the Minister of Justice, the Lord Chief Justice, and the Senior President of Tribunals, p. 6.
[v] 
http://spccweb.thco.co.uk/media/4807/university-of-surrey-video-enabled-justice-final-report-ver-11.pdf
[vii] Richard Susskind, Financial Times, 7 May, 2020, p. 23. Richard Susskind is Technology adviser to the Lord Chief Justice of England and Wales.
[viii] Remote hearings in the family justice system: a rapid consultation, Nuffield Family Justice Observatory, p.1,
https://www.judiciary.uk/wp-content/uploads/2020/05/remote-hearings-rapid-review.pdf

Professor Derrick Wyatt

QC.
Emeritus Professor of Law, University of Oxford. Member of International Committee, FIDE Fundacion.
At Oxford Derrick taught EU Law, Constitutional law, and International Law. Until recently, he also practised law. He appeared in numerous cases before the EU Courts in Luxembourg, and represented and/or advised businesses in the UK, Ireland, USA, Germany, and Iran, and the Governments of the UK, Northern Ireland, and Cyprus.




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