By Eleanor Durdy, barrister, Park Square Barristers

I wrote an article in early 2021 and in 2022 about the impact that CVP was having on the legal profession and I have been asked to provide a follow up article now at the end of 2024.

Since my last article in 2022, the use of CVP has changed. Some changes have arguably been for the better and some arguably have not.

As pointed out within The Bar Council’s review into remote hearings titled ‘A lens on justice: The move to remote justice 2020 – 2024’, the introduction of remote hearings is and has been one of the most significant changes to the mode of delivering justice in recent times. Whilst remote hearings had already been introduced, their applicability was forced to be used during the pandemic. They became judicially led in a robust and focussed way, and for the vast majority of the time worked as well as they could.

Now that the pandemic feels like a distant memory, the aim of this article will be to look at how remote attendance has changed over the last couple of years and whether it still has a place moving forwards. I also hope to touch upon the developments of technology in courts more generally as well. As a criminal and regulatory practitioner on the North Eastern Circuit, my experience with remote attendance and technology may be different to those on other circuits. In a recent survey conducted by the Bar Council, attitudes towards remote attendance differed across the regions and practice areas, and the majority of those in crime and family felt it should be used more frequently.

Despite being a pandemic pupil, my pupillage was busy, and progressively I was glad to be conducting hearings from home. CVP meant I was safe from potentially contracting Covid-19, it reduced my travel time, and it meant I could walk my dogs over lunch. In acknowledging that we all have a part to play in reducing our carbon footprint, a great benefit to remote hearings has also been avoiding the need for so much travel.  It has also allowed practitioners to be able to deal with their own cases and has reduced the impact on our own wellbeing. Our wonderful profession takes its toll in many ways, but excessive travel for short hearings reduces our precious preparation time and contributes to burnout. Convenience should not be undervalued and creating a more productive work life balance for ourselves should be promoted. In a time when we are being asked to be more environmentally conscious, remote platforms should continue to have a permanent place where deemed to be suitable. Whether we like it or not, we must strive towards being a more sustainable profession. Remote attendance at court often saves time, stress, and money. In particular it has allowed expert witnesses to dial in from their offices and then return to their work as soon as they have logged off, thereby saving funds in expenses and their convenience. It has also provided a legitimate special measure for witnesses who may otherwise be too apprehensive or unable to attend court to give evidence. As we have seen in the past four years, justice has continued to be done. Yes, there are times when appearing in person is paramount and justice has to be seen to be done, but remote law does work.

Since writing in 2022 my practice has developed and blossomed. In it doing so, I have come to appreciate the value of in person hearings. Not only because they give an invaluable opportunity to discuss potential pleas and any evidential issues arising, they also give you an opportunity to build a repour with the Judge and to discuss things with colleagues in the robing room. Sometimes a simple ‘what do you think about this’ gives you a perspective that you otherwise wouldn’t have had.

In addition, the convenience of dialling in from home has offered an opportunity to take on work all over the country but that has also left many, certainly at the Junior end, at a commercial disadvantage. Remote platforms continue to offer an open invitation to take on instructions in distant Circuits simply because they may never have to physically attend at Court. The judicial approach towards remote attendance has in some cases become inconsistent, making it difficult to assess whether an application may be granted from one Judge to the next. I recently prosecuted a sentence remotely from a conference room and was advised by the Judge that I should have found a quieter place to conduct the hearing because the tanoy in the building where I linked in from was distracting. Whilst I made every effort to mute myself at the appropriate time, and accepted that it will have caused some disturbance, I questioned how else I could have managed the hearing more effectively save for returning it to somebody else. The 2024 Bar Council review suggests that the approach to remote attendance in the criminal courts is now relatively uniform, with CVP being largely preferred for hearings where the defendant is not in attendance. Moreover, clerks are now expected to send reasons as to why counsel cannot attend in person which is then considered by Judges. When refused, the junior end up being sent to distant court centres to cover mentions and further case management hearings on behalf of trial counsel. In my experience, these hearings also include the need for counsel to explain why trial counsel could not attend and why clerks had sent misleading emails to the court.

Technology continues to improve in court but with many courts falling into disrepair and most having a bucket strategically placed under a ceiling panel somewhere, I question whether funding ought to be pumped physically into the system, rather than into the cloud with Common Platform.

I have only used Common Platform for its designed purpose once in the last four years in the Magistrates’ Court. Beyond that, it has and continues to be a glorified signing in tool…alongside the sidebar of the DCS, and Exhibit where it works. Created as a case management system, Common Platform has helped professional court users to link themselves to a case or defendant so the Legal Aid Agency is informed for payment purposes, to serve documents on the court and to self-serve case materials, yet in the Crown Court, it has still yet to fulfil its potential. Earlier this year, HMCTS scrapped part of the Common Platform programme, opting to retain the Digital Case System in the Crown Court. The system appears to have cost a lot of money and yet it remains unfit for its purpose. Having informally spoken to court clerks in the last 12 months, I know that the system has made resulting cases complex and time consuming. Furthermore, I was recently dealing with a case where the clerk told a Recorder that they could not make an order in the terms that they had ordered because ‘it couldn’t be done on Common Platform.’

I think everybody was glad to see the back of Clickshare but is its replacement any better? Now somewhere under counsel’s feet, there is a host of wires and the expectation that advocates know how to change their volume settings and the ability to squint at the second screen in order to successfully drag your media across to it.

Viewing section 28 recordings is not straight forward, Exhibit doesn’t work, logging into Common Platform is like solving a rubix cube and anything recorded on jury capture can easily be wiped off. If the government are pumping money into the criminal justice system, where is it?

We mustn’t forget that everybody has the right to a fair trial and we must continue to deliver a transparent justice system. Whilst practical, conducting hearings via CVP feels less real. It is one of the reasons that witnesses are preferred to give their evidence physically in court. Courtroom advocacy is theatrical and emotive, and whilst we might try our best, we all have to admit that we struggle to maintain such high levels of professionalism over the internet when wearing slippers with our gown. Advocacy and giving evidence aren’t just about the spoken words either, it is important to recognise the unspoken ones too which can often be lost on a screen.

Technology in court was there before the pandemic, held us up during it, and has survived afterwards. Remote platforms are able to improve the efficiency of courts by modernising processes and protecting Crown Court time. Remote participation in hearings has become an integral part of the system. Convenience should not be mistaken as laziness. Justice has continued to be done, and the profession has continued to function without compromising its long-term best interests. The profession can only continue to function efficiently if the buildings remain standing and the technology moves with the times.

 Eleanor Durdy, barrister, Park Square Barristers