Since the introduction of social distancing rules in England and Wales, the courts have seen an increase of over 500% in audio hearings and 340% in video hearings.
The Court of Appeal has issued guidance which makes clear that it may not always be appropriate to proceed with a remote hearing. Consideration has to be given to the nature, length and complexity of the case as well as any specific issues, such as the need for urgency, the ability to utilise relevant technology or whether a witness is particularly vulnerable. Inevitably, some cases have to be adjourned.
Following the introduction of social distancing rules, there was a widely publicised hearing understood to be the first remote trial in the Family Court. It concerned a dispute into the end of life arrangements for a stroke victim. Taking place over three days, it involved five parties evidence from 11 witnesses.
Whilst the feedback received on the hearing from the legal representatives involved was universally positive, it emerged that the experience of one of the parties was much less encouraging. This was a reminder that, whilst lawyers may feel a sense of achievement at managing to keep courts running during this time, the actual purpose of a hearing is much more fundamental.
More recently, there has been a rapid consultation into the remote court which aimed to gather evidence not only from professionals working in the family justice system, but from families who may have been affected by the move to remote courts.
The following key challenges of the remote court have been highlighted:
- The 'gravitas' attached to the courtroom – The loss of the formal layout of the courtroom can impact the "seriousness" attached to the case. It is no longer necessary to perform the rituals of rising when the judge enters and leaves the courtroom. Remote hearings risk being transactional and impersonal.
- Loss of communication with legal team – Although a separate method of communication can be arranged, for example by WhatsApp, you are no longer in a room together, resulting in the loss of the immediate ability to convey messages to one another. There are also concerns about security and privacy.
- Lack of support for litigants in person – Litigants in person in particular have suffered a loss of support before, during and after hearings, having to navigate the new rules of the remote court with little to no guidance.
- Inability to read or convey body language – A litigant cannot look someone in the eye. Assessing demeanour or credibility of a witness is more challenging. Someone's distress or need for a break may be less obvious to the court. This is even more so during audio hearings.
- Loss of vital human connection – Technical delays make it difficult to ensure someone has finished talking before continuing, often leading to people speaking over one another. The natural skills of face to face communication can be lost. The recent consultation considered that this was a key reason that remote hearings were not a suitable alternative for all hearings in the Family Court.
- Fairness – Some parties may be advantaged, for example there is a risk of abuse of process by witnesses who may have aide memoires out of sight of their camera. Other parties may be significantly disadvantaged, for example those with a cognitive or hearing impairment who may find it difficult to actively participate in a telephone hearing.
- Concentration – The feedback has been unanimous that the requirement to listen intently and look at a screen for hours requires much higher concentration levels in comparison to sitting in a courtroom.
Whilst there are challenges, the remote court is not without its advantages:
- Access to the court – A computer and internet connection is all that is required to access the courtroom. It is no longer necessary to plan travel arrangements or make provisions for extended childcare with potentially long days outside the home. It can be much less daunting to appear in court remotely.
- Access to documents – Whilst in a traditional court setting, litigants are often unable to follow the documents being referred to, as they do not have access to the same documents as the legal professionals, remote hearings provide the ability to share documents on screen, giving access to all.
- The comfort of home – Although it may seem less formal, the comfort of attending a hearing from home does have its benefits. Courts are often overcrowded, with insufficient space for individual waiting rooms to allow parties to have privacy throughout the court day. Often, courts do not have access to food or drink within the building. Simply having a cup of tea in familiar surroundings can make the experience of court much less stressful.
- A cost effective solution – An immediate saving to parties is the cost of travel, not only for themselves, but for their legal team and any experts who may need to attend.
- Greater efficiency – Less time is wasted waiting to be called into the courtroom. Remote hearings tend to start and finish in a timely manner.
Preparing for a remote hearing
If you have a remote hearing, there are some factors to bear in mind:
- Make sure you are comfortable with the technology – Download any required software ideally at least the day before the hearing. Test your microphone and speakers before the start of the hearing. If you have access to headphones, use these for better sound quality and less feedback. Make sure your laptop is plugged in – do not rely on the battery.
- Make sure, insofar as possible, you are alone with no chance of interruption or background noise.
- Make sure you have pre-arranged communication methods with your legal team, including a way to let you lawyer know they need to take instructions. Typing a full message can take time, so a single word prompt may be more suitable.
And during the hearing…
- Make sure your phone is on silent.
- If you are not speaking, mute your microphone.
- If you need a break, tell your lawyers.
- Have water available for the hearing and snacks available nearby for breaks.
In the era of COVID-19, there is little alternative to remote hearings. It is hoped that the increased use of remote courts will offer a more accessible and inclusive platform.
Whilst the recent consultation was overall evenly balanced in terms of the positive and negative reactions to the remote court, only 3% of the respondents were non-legal professionals. What must not be lost sight of is the user experience and need to ensure the delivery of justice is preserved.
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