Covid 19 is causing disruption to courts around the globe. There has been a rush to go online. The House of Commons Justice Committee held a hearing this morning to establish the consequences. For us, there are, it would seem at least three. First, time should be up on articulations of national exceptionalism by domestic politicians – let’s leave these to President Trump. Second, the impact of technological change is inevitably based on pre-existing and underlying economic trends and government policy. These have to be separated out. Third, courts’ rush to digital occasioned by Covid 19 is providing experience by which we can begin to judge the conditions for its success or failure.
As to the first, British exceptionalism, one of the ministers (albeit the junior one – Chris Philp MP, a lowly Parliamentary Under-Secretary) argued that ‘We have done pretty well compared with Europe. We are hearing a fair number of cases. Most of Europe has shut down’. It is, of course, rather quaint that a minister in this Brexit-fixated government should place any value on pan-European comparison. It is not entirely clear that the assertion is actually true. The European Union produces a general page on Covid 19 measures in the justice systems of its members. There are details on the digital tools used by the judiciaries of EU member states. This is not complete: Germany is missing for example. And some of the answers are opaque: you don’t learn much from Finland: ‘The courts are holding hearings by remote means to the largest possible extent provided by the law. Necessary and critical cases are given priority.’ Yeah. And we, like Finland, are upholding the standards of apple pie and motherhood.
Other countries give more cause for thought. For example, Estonia reports: ‘Firstly, all courthouses have remained open, although with limited opening hours. The judges and other court staff are able to carry out most of the proceedings in writing from home thanks to the information system and digital court file application. Secondly, to raise the capacity to hold video conferences virtual meeting rooms have been created for the ministry, courts, prosecution offices and prisons. Thirdly, judicial cooperation in both civil and criminal matters is carried out via e- mails as much as possible.’ It is difficult again to make out what this means but it would seem to be beyond what you could truthfully report from here: all courts are not open for a start – perhaps, Heaven forfend, Estonia has done better in the battle against the virus – or it has just not struck them as hard. The Netherlands and Sweden appear to be a couple of other countries who are quietly getting on with the use of video-conferencing and other digital tools. It is a pity that English political culture does not allow you to boast that, hey, we are almost as good as Estonia, the Netherlands and Sweden. For that is more likely to be true than blurting out that we are the best.
The Ministerial source may be an article on Bloomberg Law headed ‘UK courts carry on while virus halts EU cases, lawsuits’. That, however, was dated 16 March and points to a different issue. Prime Minister Johnson only announced the UK lockdown at 8.30pm on 23 March. It is generally thought that this was at least a week too late.
The truth is that the virus has hit different EU countries with a varied impact and that the courts of each have responded differently. Evidence is hard to get but there is little to suggest that England and Wales was ahead of any curve here. It should have been because our plans for court digitalisation – developed for reasons primarily of administering severe cuts in staffing and resources for the courts – are pretty well advanced.
The second point raises more substantial issues. The Justice Committee took evidence from a number of representatives of both branches of the English and Welsh legal profession. The President of the Law Society, Simon Davies, was particularly articulate on the impact of Covid 19. Firms dealing with conveyancing, housing, immigration and family (which was admittedly more mixed) are facing near catastrophic declines in income. And, at the other end of the profession, the ‘pipeline of global work’ was beginning to dry up so that incomes and staffing in the largest commercial firms were reducing sharply.
The two Queens Counsel to give evidence (Caroline Goodwin QC from the Family Bar Association and Amanda Pinto QC, the Chair of the Bar) took up the theme. Young barristers were just not earning enough to survive and the chambers system as a whole was under threat from the reduction of income to those who were usually the busiest and most lucrative earners.
The collapse of crime was the most spectacular area of work, a point made by Bill Waddington of the Criminal Law Solicitors Association. There has been a recent drop of almost a half in prosecutions; a steep fall in legal aid remuneration; and a collapse in duty solicitor calls during the Covid 19 outbreak of around 40 per cent’: ‘Very little is coming through at arrest stage. Very little is going on after arrest. And post lockdown, the floodgates are not going to open. There was already a massive backlog before lockdown. People will not be paid until the backlog is cleared. It is a very perilous situation.’
Covid 19 may be a new problem but that does not stop some old solutions being taken out into the light again. John Bache, chair of the Magistrates Association, had a couple of old chestnuts. Why not, he asked, allow magistrates to retire at an older age than the current 70? This has been a Magistrates Association campaign for some time and was warmed up last in January 2019. And letting magistrates give sentences for a year rather than the current six months has been a campaign for even longer. Lord Irvine, lamented Mr Bache, had even put it in legislation nigh on 20 years ago. Oh that it had been implemented by the stream of tough-talking (but ultimately pussycat) Home Secretaries and Justice Ministers since Labour lost the 2010 election. We all know why no one has done anything. Everyone is too scared that magistrates will sentence too many people for the prisons to cope – as chairman of the committee Sir Bob Neill gently reminded Mr Bache.
Covid 19 clearly presents an emergency situation in which, after a bit of an uncertain start, the Courts Service is, by and large, managing as well as it can. For what it’s worth, I thought that the two ministers sounded both well briefed and as well intentioned as they could be, bearing in mind that they were downstream of Treasury decisions. But the key issue in the longer term is the lessons to be taken for the future, post-Covid world. This is where we need the input of such as Richard Susskind – in the detail.
Some problems still need resolving. There is a particular concern with users who are vulnerable for one reason or another. This is a an even more particular issue in the Youth Court but also in relation to access to advice more generally. Ellie Cronin of the Law Society said: ’There is a problem with access to advice from a representative. This relies too much on judicial patience. There may need to be regular adjournments.’ The structural answer to this would be to allow clients and lawyers to access private side rooms in the way that you can in zoom and to make it absolutely clear that adjournments should be given if requested by a party in a digital hearing for the purposes of advice.
Another point was the issue of which cases are unsuitable for digital resolution. Ellie Cronin suggested trials with witnesses should not be digital. A family solicitor raised the impossibility of dealing with major bundles of documents for people whose only access is through a mobile phone. Reference was made to the damning report of Professor Kitzinger on the first Skype trial in the Court of Protection: ‘With a hearing conducted wholly over Skype, all that gravitas is lost. Court architecture is replaced with the backdrop of barristers’ and witnesses’ living rooms. The judge appears up close and personal, just like anyone else with his face in a little square on the screen. And what we found in practice was that a preoccupation with the technology distracted people’s attention from the substantive content of the case.’
Professor Kitzinger had harsher words for the judge than the technology but felt over all ‘a face-to-face hearing would not have left [the father’s daughter] wondering if justice had been denied her father because of the circumstances of the hearing, or feeling that she missed out on her opportunity to influence the court.’
There were practical questions too which enthusiasts will dismiss as teething ones but which must be addressed: ‘Due to bandwidth problems, the judge asked everyone (except himself) to turn off video-cameras unless they were giving evidence or questioning a witness. This meant it was easy for lawyers to forget that Sarah remained in the virtual courtroom throughout the hearing. They spoke about her in her presence – nothing uncomplimentary, but just the fact of hearing yourself talked about in the third person is quite unsettling.’
There are other problems too – such as effective public access to single judge decision-making. This is currently addressed by releasing decisions once made but the process is not yet publicly accessible in a general way.
So, remote courts raise issues about the requirements of human rights and the rule of law. They also bring out a question of consent. How relevant are the wishes of a participant? Can a participant refuse refuse a digital hearing? It would lock in some measure of safeguard if they could.
There are now two Court of Appeal judgements which were published on 30 April and well summarised here. These set out the criteria to be considered by a judge in deciding whether a remote hearing is appropriate. These will be the subject of a further post because they offer the possibility of being drafted into a general policy to be applied rather than individual considerations for an individual judge.
One unavoidable consequence of more digital hearings is that there will be less need of personal appearances by lawyers. Despite the best efforts of the representatives of the Bar and the Law Society, the future of the legal profession is surely not a legitimate reason to hold back the tsunami of technical change. If the Government accepts the case for nurturing the legal profession then it should have policies directly relating to that – as did the Legal Services Commission in its subsidised training contract programme. If it doesn’t, then it is not a legitimate consideration in looking at the use of technology. The post-Covid world is going to be pretty brutal for us all. And Covid 19 has made more credible the assertion that one fifth of all UK children will go to bed hungry tonight. It is difficult to argue that remedying that should not be a priority for a scarred – and probably scared – post-Covid government yet to implement its beloved Brexit.