Lockdown and Remote Court Hearings

The term “remote hearing” is a catch all phrase to describe court hearings when some or all of the participants are not physically in the court room, either because they are joining by video or telephone link. Traditionally these have been seen to have many drawbacks, not least that parties cannot communicate with each other and with the judge as effectively, and in particular that when a court has to decide important questions, it should be able to look anyone appearing before it “in the eye”.  In today’s article, Kevan Hankinson takes a look at some of the limitations of remote hearings, as well as the positives.

There have, for a while now, been many commentators who have been predicting that in the future courts would need to make extensive use of video or other technology and various pilot schemes and ideas had been put forward. Video links for routine hearings have become quite common in criminal cases, where transporting detained defendants is a complex process, made much easier by video links from prison. 

In civil and family cases, video or telephone calls used to be rarer, and probably only commonplace where a key witness could not be present for very good reasons, and the evidence straightforward. 

Before the current lockdown, there were already procedures for telephone calls in simple civil cases, and providers like BT willing to set these up for a fee. Some courts had experimented with video hearings, not just in the well-established case of a witness giving evidence by video link for their protection, but running the whole case on a screen, advocates, clients and all.

In the last year however, these ways of conducting hearings became the only means for a court to effectively deal with its work in many instances, and the virus lockdown left courts, IT professionals and lawyers scrambling to keep up.

The experiences have been mixed to say the least, and the position, best practice advice and the rules for the court have had to evolve rapidly. There seem to be as many people embracing this change in practice as those who cannot abide this way of working. Most practitioners however accept that remote hearings will be a feature even when the lockdown is gone, but not everyone is convinced of their merits more broadly.

Remote Hearings – The Good

1. It prevents infection. Obvious, but clearly the main selling point at the moment. Without the wonders of modern technology, the current restrictions would have made progress on family court case difficult and certainly many more serious delays would have occurred as the court simply cannot now safely hold as many hearings in the court building as before.
2. You do not have to travel, or pay the cost to do so. This can be a money and time saver, and means that lawyers can work more efficiently. Especially if your court is in a city centre, not having to wade through endlessly snarled traffic is a definite plus, even before the overall ecological benefits are taken into account.
3. You can more easily have resources to hand and use time waiting for the court more efficiently. Even with a laptop in hand as most court lawyers now have, there aren’t always the facilities or the privacy in a court building to do other work, when, as often happens, there are waiting periods before going into a court hearing. With remote working this is far less of a problem and indeed potentially not just the file but everything in the office is at arms reach, something that it would be impossible to have in a court building.
4. People are perhaps more focused. Courts have been asking for position statements and other documents and some will say people are preparing better for this kind of hearing rather than leaving it the last minute to talk things over at the doors of the courtroom.
5. It can feel less formal, and is thus less intimidating. Although in particular the family courts try to be less imposing, they are still quite unfriendly places, beginning with the full security search at the door, and extending to the rooms themselves. As much as courts want to be respected, there are many people for whom access to justice is hampered by either disability or other problem that makes physical hearings hard to deal with, whereas they can be made much more comfortable in another more familiar setting.
6. Some of the video software has been very impressive. Some of it allows for virtual “waiting rooms” and breakaway discussions. People have overall been quite surprised how, when you get used to it, the technology works reasonably well. Even if not adopted wholesale for every court hearing, the use of this kind of software for meetings of all sorts in likely to remain much higher after the lockdown than before.
7. In some cases with simple or straightforward matters to resolve or discuss, remote hearings have been quicker and cheaper. When difficult points are not being discussed, or evidence taken, some of the disadvantages set out below fade, and without all the process and fuss that starting and ending court hearings can involve, what remains is the possibility of quick, cheap and efficient means to deal with aspects of a case.

 

Remote Hearings – The Bad

1. You cannot see people at all (telephone hearings) or as clearly (video conferences). It has surprised some people to realise just how much they rely on a gesture, a look or maybe just a feeling that something isn’t quite right. It is often said that a large amount of the way people communicate is non-verbal – in how they look or their body language. People have realised that it can be hard to be speaking and not seeing the reaction to what you are saying. For many lawyers, changing tack in what they say based on the Judge’s expression is a useful skill. For many clients, understanding what it going on is just much harder with the barriers that remote hearings put up. Many Judges have been worried that testing a person’s honesty in questioning without being able to look them in the eye simply isn’t going to be effective.
2. In some cases it can take a lot longer. Apart from the need to take more time to clarify what is being said, making and ending calls back and forth, dealing with IT problems and technical hitches, and needing to stop and start can all make a hearing a much more long winded and exasperating.
3. The problems are doubly clear when there is a need for special measures. Cases involving interpreters, support for vulnerable witnesses or parties with learning difficulties or special needs are very hard to conduct this way.
4. Security and privacy. There was a not entirely resolved issue around Zoom being secure that led to it being less favoured by the courts, and even setting hacking or other such concerns aside, the fact that anyone can secretly record a hearing, or have others listen in has been a major concern. It is also easier for people to misbehave in other ways, shouting or talking over other participants, perhaps as a result of the less formal feel of this kind of hearing.
5. Especially for those working at home, the perils of children or pets intervening are all too clear. And this is before you consider the case of the senior and very stern lawyer who had set up their impressive looking study for video calls, without realising that everyone on the call could see their well thumbed copy of ’50 Shades of Grey’ on the bookshelf behind them.

Overall, the conclusion seems to be that anything is better than nothing, and the complete shutdown of the court system would cause untold harm to children and families. We are fortunate to have such alternative means to conduct hearings available at all.

There are some cases that might be improved by remote hearings, others not particularly affected. In others, remote hearings have significant drawbacks. The debate on each case now before the court is about whether those drawbacks outweigh the disadvantages of a long delay for a traditional face to face hearing.

Once the virus passes, there will be significant debate about when and in what way remote hearings will feature in family cases, but there seems little doubt that they will remain an option, and that the debate between administrators and others who see them as cheaper and more efficient versus those who feel they risk unfairness, miscommunication and lost opportunities for agreement and settlement, will continue.

The main point now for anyone with a remote hearing to attend is to make sure you are aware of the strengths and weaknesses of the format, the rules you must follow, and how to communicate before and during the case with lawyers and other participants. We do now have significant experience in making the most of hearings, whatever format they may have. 

Butcher & Barlow LLP

Butcher & Barlow remain available for advice and guidance on any existing or new matter and please do not hesitate to get in touch via enquiries@butcher-barlow.co.uk or directly with your legal adviser. Kevan can be contacted at khankinson@butcher-barlow.co.uk or on 07760 669263

To view Butcher & Barlow’s own working practices, please visit www.butcher-barlow.co.uk/news