One more body – the Nuffield Family Justice Observatory – has published a rapid review of court remote hearings. This supplements that by Joe Tomlinson and the Public Law Project on administrative law and by Natalie Byrom on civil. The Observatory study has the advantage of judicial involvement – around a quarter of respondents to a consultation were judges or magistrates. It precipitates at least three questions. First, what issues did this study uncover that need to be taken forward in the longer term.? Second, should we not have – as Phil Bowen of the Centre for Justice Innovation has suggested – a study to fill in the gap in reviewing what is happening with criminal cases? Third, should not these reports lead to a comprehensive long-term policy response from the judiciary, the Ministry of Justice and Parliament?
The Observatory Study covered time quite early in the Covid-19 outbreak – from 14-28 April. As might be expected (and, indeed, perhaps forgiven), some degree of confusion and mess reigned: for example, ‘A wide range of different telephone and video platforms are currently being used to conduct remote hearings’. Just in terms of telephone conference technology, the courts were using at that time BT Meet Me and BT Meet and Greet, PowWowNow, LegalConnect, Kidatu and WHYPAY?. Videoconferencing platforms included Zoom, Microsoft Teams, Skype for Business, Cloud Video Platform and Lifesize. Procedures varied to a similar degree.
The Family Court covers a range of cases that include public and private law. At their apex in terms of seriousness are decisions about those relating to the removal of children from their parents (sometimes new-born babies) and their parents. For a fictional account of the stresses o the work, you can consult Ian McEwan’s The Children’s Act which I have to confess that I have only just belatedly read. The overall line of the court has been expressed by the President: ‘In pushing forward to achieve Remote Hearings, this must not be at the expense of a fair and just process’.
The report found a mixed picture on justice: ‘Significant concerns were raised about the fairness of remote hearings in certain cases and circumstances, and there were some worrying descriptions of the way some cases had been conducted to date. These concerns chiefly related to cases where not having face-to-face contact made it difficult to read reactions and communicate in a humane and sensitive way, the difficulty of ensuring a party’s full participation in a remote hearing, and issues of confidentiality and privacy. Specific concerns were commonly raised in relation to specific groups: such as parties in cases involving domestic abuse, parties with a disability or cognitive impairment or where an intermediary or interpreter is required.’ It gives detail.
The report was concerned not only with the emergency arrangements made as an immediate response to Covid 19 but also the longer term: ‘Many examples of emerging good practice are provided. These largely related to the management of the process—the preparation and running of hearings, and making the most effective use of technology. Respondents to the consultation also gave feedback as to the types of cases that they felt should or should not be heard using telephone and video technology.’ Many of the proposals are repeated in the other studies – for example, the value of an opening introduction by the judge.
It is at this point that consideration of the report needs to be linked with that of the two previously considered. And, indeed, the benefit observed of a similar review for criminal justice. There may be some advantage is setting out issues that, in my view, have emerged so far:
- Open justice
- Minimum technical requirements.
- Best Practice
- Litigants in person
- Data and Information
These would benefit from a comprehensive approach not only across subject areas but also in relation to each other. Some of them, such as open justice, may require statutory protection.However, much can be done through guidance on such matters as minimum technical requirements and best practice. The key issue of which cases are suitable for remote hearings might perhaps best be dealt with by a combination of statute and judicial discretion (mandatory offer of physical hearings in certain situations; judicial discretion in others). The difficult point here for the Ministry will be its potential desire for savings of staff and court expenditure if, for example, litigants in person are allowed to choose not to have a digital hearing – which would seem to be the implication of the three reports published so far.
We need, therefore, a joint paper from the Judiciary and the Ministry of Justice putting out for consultation their suggestions on how explicitly to address these issues. This is not a matter which can appropriately be left to Her Majesty’s Courts and Tribunals Service: its role is to deliver the required administrative structure to meet the needs defined elsewhere. It could certainly have observer status on any oversight committee that the judiciary and the ministry wish to convene. But it should not be the effective decision-taker – that is an abrogation of the constitutional role of the judiciary and the political role of the Minister.
So, let’s have:
- A rapid review of crime by whatever independent body the Lord Chief Justice selects to report by 1 October.
- A paper by the same date on comparative lessons from other jurisdictions: in the UK, the Nuffield Observatory has started the work of collating global developments and producing a map which illustrates them. I would give them a bit of money to develop this.
- a consultation paper to be released by 1 December. This needs to provide drafts of elements like best practice guidance to give a concrete base for the discussion.
- Return date for the consultation on 1 March.
- Announcement of Ministerial and judicial decisions by 1 June.