One effect of Covid 19 is that it brings the world together. We all want to know if anyone can produce a viable vaccine. We all want to know about its transmission. And, in the legal world, we all want to know about remote courts and digital justice. Courts and tribunals everywhere have had no choice but to go online. What have jurisdictions learnt in the month of so of accelerated experience? Commendably, the Civil Justice Council (CJC) has entered the fray with a rapid study of the impact of Covid 19 on the civil justice system of England and Wales. This was publicly announced on 1 May and is intended to report on the 22nd, Friday.
Let someone who has not been afraid to criticise the court digitalisation programme in this country (and Her Majesty’s Courts and Tribunals Service) pay tribute to this process. The review has the backing of the senior judiciary and was announced by Sir Terence Etherton, the Master of the Rolls (the senior civil judge). It is to be independent (someone did some fancy footwork) and to be carried out by Dr Natalie Byrom. Her day job is head of research at the Legal Education Foundation.*
The CJC states that its aim is ‘to provide an overview of the operation of current measures and offer practical recommendations to inform the ongoing response to COVID.’ That is important enough but Sir Terence is clearly aware of the broader impact: ‘This review is a chance for users to give feedback on how the changes are impacting them and to suggest areas of improvement. The evidence collected by this review will be invaluable in shaping the way forward for the civil justice system, both immediately and in the longer term.’ Wherever you are in the world, if you have an interest in remote courts, you really should read Dr Byrom’s report when it comes out. Covid 19 has set up a textbook experiment in digital courts whose lessons will be, at least in part, universal.
The consultation prior to the review has involved the gathering of responses, an online event and an online survey. These will inform the final report. Presumably, the rather unusual announcement of a publication date right at the beginning is a device to prevent suppression or delay (nice footwork again, somebody). This is the commendable application of the UK government’s Brexit negotiation principles: set an artificial deadline to hassle everyone into agreement. We will see how well it works in relation to Brexit later in the year and remote courts at the end of this week.
One response to the consultation justifies individual coverage ahead of publication. Young Legal Aid Lawyers are in a particularly good position to report on what is happening. It will have been apparent from previous posts that I am one of their fans. YLAL has 3,500 members and describes itself as ‘a group of aspiring and junior lawyers committed to practising in those areas of law, both criminal and civil, that have traditionally been publicly funded’. Its membership is diverse both in terms of roles – ‘students, paralegals, trainee solicitors, pupil barristers and qualified junior lawyers throughout England and Wales’ – and, if its committee is representative of its members, ethnicity and gender.
The great advantage of the young lawyers as a source of information on remote courts is that they are the ones actually doing the grunt work for low income clients. Understandably, the more established specialist bodies within the legal profession represent those more senior – and more distant. Furthermore, as the YLAL says itself, ’The majority of … members are junior lawyers who have grown up with technology and are generally quick to embrace the use of it. It is not the use of technology itself that our members are concerned about …’ And their overall line is balanced: ‘There are some welcome changes, such as the increased use of technology where appropriate and the savings in both time and costs for all parties where, for example, straightforward directions hearings are held over the telephone or by video conference.’
The immediate focus of the young lawyers’ report, as of the consultation, is on the emergency arrangements in response to Covid 19. These are as patchy as you would imagine – and as variable as they are probably in any other jurisdiction. There are issues – in relation to the use of technology or differences of judicial approach – which need to be sorted out. The review hopefully serves as a reassuring indication that there is a commitment within the judiciary and HMCTS to do this.
But, as the Master of the Rolls noted, a major benefit of this review is that not only will it deal with the Covid 19 response but shape the longer term future. And, there are three issues in particular which are raised by the young lawyers and which require attention:
- open justice;
- minimum technical requirements;
- the cases that are unsuitable for digital hearing.
Open justice was discussed in the immediately previous post and will not be considered again here.
On technology, it is clear that there needs to be considerable improvement: ‘The consensus is that video hearings are preferable to telephone hearings in that parties can see each others’ faces and this helps to build rapport. However, participation in video hearings is often stymied by connection issues which affect sound and/or video quality and can lead to participants being ‘kicked out’ of a hearing due to a technological glitch, leaving them unable to take part for some time or, in some cases, for the rest of the hearing.’ There are niggles such as the inability of the court video software to pick up non-speakers, leaving a signer for a deaf applicant literally in the dark. Connections to prisons and police stations are often poor. More structurally, there appears to be a problem on the number of cameras in the court and the provision of separate virtual rooms for confidential client-lawyer discussions. We need a transparent statement of standards that can be debated and agreed by all concerned.
The young lawyers summarised their position on suitability as follows :
Remote hearings are seen as unsuitable where significant client engagement is needed before, during or after the hearing.
Additionally, respondents reported concerns that some clients may feel their non-attendance at a remote hearing will be detrimental to their case. Respondents stated that clients ought to be involved in any decision-making as to the suitability of remote hearings now and in the future.
Practitioners who work with vulnerable adults or clients who have multiple or complex needs expressed particular concerns with remote hearings. They reported that some clients need to know they have been seen in order for justice to effectively be done and that some clients do not understand remote technology. There is a concern that this will reduce an individual’s ability to access and understand the justice system; a problem which is exacerbated when practitioners are unable to meet their clients and take instructions face to face.
In certain practice areas, justice is seen as a process, not just an outcome and it is viewed as vital to the efficacy of that process that clients feel as meaningfully involved as possible. There is scepticism as to how far this can be achieved remotely by removing the ‘human element’.
It really is time for high level supporters of the principle of remote courts to join the debate on what is not suitable for a digital hearing. The young lawyers summarise their position on civil cases as: ‘Our members, as legal aid lawyers, are used to working with vulnerable clients, who often need a holistic approach to their legal problems, but also the professional support and reassurance that face to face advice and hearings give. For this reason, YLAL believes that remote hearings should proceed on a case by case basis, and then, only if all parties and the Court agree that it is appropriate that the hearing be held remotely.’ Do we agree?
The great danger is that the court administration has its own interests – particularly in England and Wales where (unless it can do more fancy footwork and sucker the Treasury into accepting that its cost overruns are all part of the Covid 19 response) actually it pretty soon has to put away the ‘Mr Nice Guy’ approach to deliver some real cuts to meet its targets. The National Audit Office has already been on its case for some time.
The young lawyers’ evidence might suggest an approach that allowed an assumption of digital hearings in all civil tribunal and court cases except those which involve:
- cases where consent of all parties is required and where there are conflicts of fact, litigants in person, and parties who for a variety of reasons from their capacities with technology or mental health issues are unable effectively to participate in a digital hearing;
- matters where there is a public interest in the transparency of a public hearings eg inquests and asylum cases.
In addition, there should be minimum technical standards and measures for the protection for open justice. This is where part of the debate now has to focus even while we clear up the glitches caused by Covid 19. HMCTS, the judiciary and Government ministers might not agree: they might want powers to impose digital hearings to save money. Well, let’s hear their alternative formulations of rules to which we should be working in the longer term. And which may allow government expenditure savings as well as preserving (or, Heaven forfend) the extension of access to justice.
*full disclosure: also funder of this website.
The main illustration is of contractors on Hampstead Heath, North London early this morning. They are spraying a tree in response to an outbreak of oak processionary moth. It has a tenuous – but hopefully traceable – link to responses to epidemics. It might not be a great photo but it was – still is – a beautiful day.