All courts which have shifted to remote hearings as a result of the Covid-19 pandemic will be monitoring progress. On Friday, we should get the (slightly delayed) report of the Rapid Consultation on this topic by the Civil Justice Council in England and Wales. Meanwhile, four authors associated with the Public Law Project* (PLP) led by the excellent Joe Tomlinson of the University of York have published a paper on a small empirical study of judicial review in the Administrative Court. They have also published an excellent summary as a blog. These are worth consulting directly: this post is an attempt to use their findings to draw what seem to be four lessons – particular in their origin, general in their application. This is important because as the authors say in their paper: ‘there is … a chance that any emerging practices and precedents regarding remote justice may outlast the COVID-19 pandemic.’ The four issues emerging from their work seem to me:
- There must be agreed specified minimum technical requirements.
- There should be best practice procedures
- Open justice requires easy external access
- Litigants in person should be offered physical hearings.
The Administrative Court is a specialist court dealing with around 4,000 judicial review applications a year. These are a mix of major public law challenges – for example to the building of a third runway at Heathrow – and more intimate cases that challenge matters like the immigration or asylum are settled or withdrawn. The researchers report that in 2018 there were only 275 hearings. The Administrative Court was affected by law and guidance covering the move to remote hearings, the first of which was on the 18th March.
This was a small study, based only on interviews with 13 practitioners. These were undertaken in the week beginning 6 April. So, this was still at a time when one would expect the arrangements to be bedding down. For that reason, some of the observations are likely to be more the result of unavoidably rapid implementation and will, no doubt, be addressed when there is more time. The researchers acknowledged that they could not interview court staff or clients.
It is important to record that the practitioners appreciated the efforts of the court and its staff in very difficult circumstances: ‘They … were grateful that judicial reviews were still able to go ahead … Many expressed their appreciation for the efforts of Court staff to facilitate this. The responses reflect patience and problem-solving attitudes from all parties towards technical or practical issues. This ‘just get it done’ approach and sense of goodwill in difficult circumstances was appreciated by many. Interviewees also valued the flexibility of being able to conduct hearings listed all over the country from their own homes.’
Specified technical requirements
There were, as you would expect, technology problems galore. Pictures froze. Audio and visual dropped. Minimum hardware seems often to require ‘a need for two screens when engaging with extensive paperwork or lay clients without access to a computer’. Video was greatly preferred to audio. This is consistent with wider experience – large US firms are reporting the same, even in communication with clients. That is going to be a problem for people forced to operate only by phone with restricted access to the internet.
There do some practical lessons. It would seem that one camera should be permanently fixed on the judge: ‘Many interviewees highlighted the challenge of not being able to see how submissions were being received, particularly by the judge, during both telephone and video hearings. Consequently, it was hard to establish whether the judge had grasped a certain point, or to spend longer elaborating on it. It was also harder to get a sense throughout the hearing of the judge’s likely decision on the case.’ Other requirements will no doubt emerge.
Best practice procedures
Remote hearings call for adjustment to usual procedures. First, participants appreciated what one of them called a ‘tech rehearsal’ process ensuring that ‘all parties were familiar with each other (which was particularly important for an audio-only hearing) and the technology.’ Second, a specific judicial introduction to the remote hearing was desirable: ‘Comprehensive introductory remarks by the judge were appreciated by interviewees who experienced this. This generally included introducing the participants, outlining how the hearing would proceed, and noting any changes to Court etiquette that were required, such as muting microphones when not speaking. Alongside a pre-hearing test call, a thorough introduction by the judge was felt by many to suitably frame the hearing and set the tone for the ensuing proceedings.’ This seems a good idea to incorporate as standard – though its need for professional participants might diminish as everyone becomes more familiar with the process.
There was a fascinating suggestion that ‘remote hearings called for ‘“ slightly different style of advocacy,’” but that without feedback from other participants, it was difficult to gauge what this style was.’ Advocates may benefit from some work on this. As we know, medium does affect message and we can all see, for example, (or am I alone?) that zoom encourages short contributions rather than standard form lectures. Avocates may have to modify their style for video: it would be surprising if they did not.
Litigants in Person
Litigants in person are just so inconvenient for courts wishing to move digitally: ‘Two interviewees had conducted judicial reviews in the Administrative Court where a litigant was unrepresented. This presented a number of issues. For example, one litigant in person did not have access to the bundle or to video conferencing technology, which meant that the hearing had to take place via telephone and at a slower pace to compensate for their lack of bundle access. One litigant in person began to cry during the hearing, while another was cut out mid-way through their submissions by technical problems. In each case, it was difficult for the judge to respond effectively to these problems within the timeframe of the hearing.’
The interviewees are pointing to two dangers in relation to litigants in person – technological limitations on their access and emotional distress – emerging in other areas of public law affecting individuals. This suggests the longer term conclusion that great caution should be exercised in requiring litigants in person to have a remote hearing. At the very lowest, it would seem that a litigant in person must have the option of a physical hearing without penalty.
Open justice is emerging as a challenge for digital courts. Given the high profile of some judicial review cases, there is no surprise that it was raised by some of the interviewees: ‘A number of the interviewees’ hearings had a press or public presence. While some saw the process of gaining access to remotely observe hearings as ‘quite easy to arrange,’ others noted instances where there was a struggle immediately before a hearing for press to be given the login details to observe the hearing remotely’. The problem may actually be less acute in the Administrative Court given the low number of cases than further down the court chain where campaigners like Professor Celia Kitzinger and Penelope Gibbs of Transform Justice are getting stuck in. But this an issue which needs to be comprehensively addressed.
This was a pretty small study and we need much more. The researchers themselves want, as researchers always do, more research and a commitment by the court to more data: ‘Further engagement with lay clients, legal representatives, Court staff, and judges is crucial.’ And they have to be right that ‘The developing experience of the judicial review process in these unusual circumstances may, if properly studied, provide insights about the future of the system, and digital justice more generally, after the pandemic.’ But we can also begin to take this forward. Add in the findings from the larger study due in a couple of days time and we should be able to talk about moving from observation to filling in the detail of requirements in the four big issues that come out of this study and, indeed, any further ones that emerge from the work of the Civil Justice Council.
* Joe Tomlinson, Jo Hynes, Jack Maxwell and Emma Marshall