Before the COVID-19 pandemic, it was perhaps not widely contemplated that courts and tribunals would soon have the capability and capacity to conduct the majority of their hearings on a virtual platform as a matter of course. However, due to the necessity of the hastened roll-out of the Cloud Video Platform (CVP), remote or hybrid hearings soon became the norm. With the pandemic behind us, it has become apparent that remote hearings in one form or another are here to stay. In fact, they may possibly even increase in future as economic realities dictate that further efficiencies (both in terms of ways of working and providing value for money) are found within the wider justice system. Could virtual hearings be the saviour of a justice system already crippled by years of underinvestment and funding cuts? Or is it a case of virtual justice being justice denied?
By Lynne Townley, barrister and part-time lecturer on the Bar Vocational Studies Course at City, University of London.
During the COVID-19 pandemic’s ‘lock-downs’, ongoing restrictions, and ‘social distancing’ in public buildings, many courts and tribunals nevertheless continued to sit in person, albeit at reduced capacity. Some Crown Court hearings continued with courts making their own adjustments to permit social distancing, such as juries being placed in separate court rooms from the legal parties while making use of existing video link technologies to relay the proceedings. However, hearings in other courts and tribunals, most particularly those that sat in hospitals or in other public buildings, had to be halted either due to difficulties in mitigating the risk of the spread of COVID or as a result of restrictions on entry that were imposed by the authorities controlling the buildings in question. Her Majesty’s Courts and Tribunals Service (HMCTS) responded by rolling-out its cloud video platform (CVP) for video enabled hearings. Within the criminal justice system, the CVP platform connected to the existing justice video network which linked police stations and prisons to court. Therefore the CVP undoubtedly played an invaluable role in allowing cases to continue to be heard during this unprecedented time. However, so-called ‘remote justice’ has its many critics who question whether, in the post-pandemic world, virtual hearings should continue at all.
While ‘remote justice’ raises its own unique and important considerations, it has to be viewed within the wider debate about remote working in the public sector more generally. While flexible and remote working have been available on a so-called ‘business needs’ basis for those working within the private and public sectors for many years, it was the unprecedented increase in those ‘working from home’ within civil service departments, who continued to do so as the country moved out of its pandemic restrictions, that brought the matter to the attention of the mainstream media. In April 2022, the then Leader of the House of Commons, Jacob Rees- Mogg, was filmed taking a tour of apparently abandoned Whitehall offices, leaving his much criticised ‘Sorry you were out when I visited – I look forward to seeing you in the office very soon’ notes on empty desks. This fuelled a campaign in certain sections of the media to get public sector workers ‘back to work’, based on the premise that if a worker is not physically present in the building, they are not working or at least not working at an acceptable level of efficiency, whatever that may be. Those who do not favour remote hearings deploy similar arguments and there is also the important added considerations about access to justice and the principle of open justice. Something which is severely impeded, or at least appears to be so, if such hearings can only be accessed through an online platform coupled with the use of a passcode.
While the Rishi Sunak Government has now embraced the idea of hybrid working in the wider public sector – and a recent study across government departments concluded that there was no difference in the productivity of those working remotely and those in the office – the future of the virtual hearing remains a conundrum currently confronting policy makers in the justice sector. A number of courts and tribunals are currently reviewing and revising their policies on remote hearings. While it may be the position of many members of the Bar and the judiciary that the face to face hearing remains the gold standard, this aspiration has to be viewed in the light of the latest HMCTS Estates Strategy (which sets out its priorities for the court estate for 2021 – 2031). Within that strategy, the key priority is to reduce the backlog of cases across the justice system over the next decade. In order to help achieve this aim, HMCTS says that it will be considering further ways to support fully video and hybrid hearings. Therefore, it is apparent that virtual hearings are not just here to stay, but may even increase in number in the future. For those of us who lament the resultant decline in face to face hearings, is there any cause for any optimism?
There just might be. Firstly we are better at doing virtual hearings than we thought we would be. In September of 2022, I was invited to give a presentation to a delegation of judges visiting London from the First Federal Court of Rio de Janeiro. The theme of their visit was remote justice and what became clear as the discussion progressed was that remote court hearings had become a worldwide phenomenon and that there was a lot that we could learn from each other about how best to conduct them. We shared many amusing anecdotes about our experience of conducting these hearings during the course of the pandemic – some being way too embarrassing to recall here but suffice to say that it was very common for hearings to be interrupted by pets and children entering the room. While the virtual lawyer/cat appearing in front of Judge Roy B Ferguson of the 349th District Court of Texas due to the application of filter during an otherwise routine hearing has now found its place in legal folklore. Thankfully, recording of hearings in this jurisdiction being a criminal offence, our blushes would be spared on that score. Nevertheless, we were all agreed that, even if we didn’t like appearing virtually to begin with, we just got on with it and it seemed that litigants and other court users have admirably been doing the same (however this is not to overlook the principle of access to justice and it has to be acknowledged that virtual hearings may not suitable or even appropriate for some court users).
In conclusion, virtual hearings may just help to keep our beleaguered justice system afloat. We cannot sugar coat the current challenges that the system is facing, many of which were apparent even before the pandemic but have since become much worse. These include, but are not limited to, a much depleted and increasingly dilapidated court estate (HMCTS’s Court Estate Reform Programme implemented in 2010 oversaw the closure of 140 courts (92 magistrates courts and 48 county courts) across England and Wales and since then a further 121 court and tribunal buildings have been closed); barristers threatening to strike (and actually striking) due to unsustainable pay in publicly funded cases; and budgetary cuts decreasing the administrative capacities of courts and tribunals which has resulted in court and tribunal rooms lying empty, further increasing the backlog of cases which HMCTS has pledged to cut. While the virtual hearing may not provide a magic solution to all these problems, in appropriate cases, the role that it could play in reducing current case backlogs should not be underestimated.
Lynne Townley is a barrister and part-time lecturer on the Bar Vocational Studies Course at City, University of London.