Coronavirus is touching all our lives. Agencies, institutions and governments are rapidly seeking to adjust to the consequences. Advice centres around the globe are sending out messages that they are closing for visits and their staff working from home. Courts are having to respond. Today we learnt from the Lord Chief Justice that, for the courts, it ‘will not be business as usual’: ‘The default position now in all jurisdictions must be that hearings should be conducted with one, more than one or all participants attending remotely.’
Some of the longterm consequences may actually turn out to be positive. Advice agencies will seek to reconcile staff working from home with users who are similarly unable to get out to offices. There will be momentum behind more use of video to deliver services remotely. Potential users will have become habituated to use of FaceTime, Skype, Zoom etc through a prolonged period – looking like more than three months – of relative isolation of at least some of the population. After all, even my book group is migrating to Zoom. This move to video will be a shift that remains after the present cloud is lifted. Already tech evangelist Richard Susskind, (alas, behind The Times paywall) is writing that ‘technology is key to stopping coronavirus wiping out law firms’.
Professor Susskind has extended his welcome to remote working to the courts, tweeting this morning: ‘Courts will close & judges will work remotely. I’ve spent my working life on this (see my book, ‘Online Courts and the Future of Justice’) & am confident judges can deliver just decisions working online. In E&W [England and Wales] we have been preparing …’
The urgent need for speed in implementing changes to the courts’ usual ways of working is clear. Potentially, the lives of judges, lawyers, litigants, witnesses and others may be literally dependent on remote working. However, the dangers of changes made in haste and regretted at leisure are all too clear. You just have to look at the string of anti-terrorism legislation that the Blair government pushed through Parliament in the 00s in response to the panic after 9/11. Most of it did not survive judicial scrutiny and much of what did was relatively little used. The Bills were revealed as more about public image than actual effect. So, we need keep a grip on principle.
The fundamental issue is the preservation of the principle of fair trial – the corner stone of civil liberties and human rights. It appears that different rules will apply for criminal cases with, for the moment, short criminal jury trials proceeding. However the principles remain the same for all judicial cases. The Legal Education Foundation (full disclosure: it funds this blog) has produced a memorandum on the safeguards that need to be introduced. These should be valuable for other jurisdictions: there is nothing inherently domestic about them. They fall into three distinct categories:
- Vulnerable litigants should be pro-actively identified and non-urgent trials involving them should be delayed: ‘Individuals who are neurodiverse, have a learning disability or are experiencing mental ill health that impacts on their communication or comprehension skills should be excluded from trial by video hearing.’
- Video and other necessary facilities should be made available for all who need them to participate. What is more, users of remote access to the courts should be provided with access to free advice: ‘Successive studies have indicated that in cases where hearings are conducted remotely by video-link, parties are less likely to seek legal advice and representation.’ This is the one that Ministers will hate because it involves cost: ‘parties to video or telephone hearings who are eligible for legal advice must be given support to understand the implications of remote participation and provided with an opportunity to access free legal advice in advance of their hearing.’ This is likely not to be done – which makes the last category of recommendations all the more important.
- There should be safeguards on due process to include.
- All judgements made after remote hearings should be in writing and publicly available.
- All remote recordings should be recorded with transcripts available.
- ‘The failure rate of the technology used and the nature and extent of technical difficulties encountered must be monitored and recorded.’ This proved a major problem in a small demonstration project.
- The impact of video hearings on the ability of legal representatives to effectively communicate with their clients must be monitored.
Dr Natalie Byrom, the Foundation’s Research Director said, ‘We think that the adoption of the safeguards is absolutely critical to support the government, HMCTS [Her Majesty’s Courts and Tribunals Service] and Judiciary to achieve their aim of maintaining access to justice in the very difficult circumstances.’ Who would not agree?
Image from Pixabay.