How do you see the current state of play on court modernisation and remote hearings?
The Covid 19 crisis has seen a rapid acceleration of three main alternatives to physical court hearings. Video or audio hearings may be used fully or partially to resolve a case. The paper hearing provides a further option. This has some advantages: it allows an asynchronous process for the presentation of argument and evidence which I believe is good at bringing out issues and identifying areas of agreement. It is what I originally had in mind as potentially transformative in a digital court process. We have developed remotecourts.org as a website to track developments and it currently gives details of courts in some 56 jurisdictions. This gives a strong sense of how remarkably judges and courts have adapted. Five or so months ago, you could have identified all sorts of reasons why remote procedures wouldn’t be put in place. These have become largely irrelevant in the middle of the C-19 pandemic. There has been rapid adaptation. The huge question is what happens when the pandemic ends. Everyone will have to take stock.
What lessons have been learnt so far?
We have had what amounts to a massive unscheduled experiment. I fear that we might not be capturing enough data to learn the lessons fully. Implementation of remote procedures has come far sooner than anyone expected. This has led to all sorts of strains. We have to take this opportunity to learn what works. At the moment, there are key problems at three different stages. The first and most immediate is how we get through the time during which physical courts will be fully or partially shut as an emergency response to the pandemic. We also have to be realistic about a second wave of infection that may bring close court closures once again. We need to make sure that systems developed in an ad hoc way continue to be serviceable. The medium term challenge is how we might industrialise systems that have worked during the crisis and deal with the backlog of cases that will inevitably have built up. Finally, the longer term question is whether the global access to justice crisis can, to any extent, be addressed by these changes.
The Immediate need is actually not that ambitious. We need to bed down sensible practices. We must make the most of current technology. There has not been very much rigorous and systematic study of what is happening. The most extensive has been of civil cases in the English and Welsh courts by Natalie Bryom for the Civil Justice Council (CJC). There was an earlier smaller Nuffield study of the family courts. What emerges clearly from the CJC study – and confirmed by much anecdote – is that video hearings are better than audio ones. The right sort of video can allow the conduct of an appropriate process. It is harder to control proceedings when using audio alone.
We are learning that is far harder to sit for a long period of time and concentrate in digital hearings. We need to accommodate that. And we need to have processes that allow private communication between lawyers and clients out of the court room. WhatsApp is often being used to this. I think that many people are surprised that, with proper procedures, you can actually do some difficult things like cross examination and assessment of credibility better than you might have expected.
But I don’t want to draw conclusions too soon. I want judges and court users to engage in debate and discussion. I do think that there is also a public perception issue of which we should take account. Remote court hearings are not yet seen as the equivalent of traditional ones in a physical court house. The public will be uneasy about, for example, remote hearings of serious criminal cases. But we need to encourage much more discussion of what works and what does not. That is why we set up a “user stories” part of the remote courts site.
What is your assessment of our own court service?
I think that it has done remarkably well over its various jurisdictions and with a depleted workforce. My understanding is that around 30-40 per cent of its case load is being conducted. That is more than most jurisdictions around the world. Covid 19 struck in the middle of the existing reform project. The Courts Service was not that many months away from rolling out video. It has had to accelerate that delivery. The one factor that no one foresaw when planning the reforms was the pandemic. But quite a lot of what needed to be done was in place or on the drawing board. HMCTS has struggled on criminal but so has everyone else. The service is under immense pressure.
Can we yet say definitively that some cases are suitable and some unsuitable for remote hearings?
I would not yet rule anything in or out. We now have the possibility of gathering empirical evidence to inform our views. Individual observers will be on a spectrum between, on the one hand, neutral social scientists and, on the other, passionate social entrepreneurs. So their starting place might vary in looking at reforms but their views could change over time as influenced, I hope, by the growing amount of evidence.
The key to suitability may be more about the nature of processes rather than jurisdictions. Non physical courts could deal with high volumes of civil cases. It is, however, a common instinct that you might want to have a physical hearing if the value of the case is high. But, on the other hand, some high value cases have recently been dealt with very satisfactorily by video hearing. Value may not be the barrier that we thought it used to be. Many people will feel that the public nature of criminal proceedings important. It is not, however, clear that our grandchildren will think the same. We might want to revisit issue of public hearings or, at least, how we understand them.
There remain a number of cases where my instinct would favour physical hearings subject to the evidence. For example, if the case is about relationships, I feel that it might be best for the parties to be to be gathered in same room. Another class of difficult case for remote hearings are those where there are a lot of documents. It seems to be hard to handle these because of the lack of a suitable platform. Multi-party cases and those that deal with big issues of public concern are other areas to look at carefully before we allocate them to remote courts.
I don’t think that any types of case should yet be exempt from remote hearings on principle. We do not have sufficient evidence to be dogmatic either way.
The future direction needs a public conversation and investigation of the magnitude of a Royal Commission. I am concerned at how fast things are going and how pressing is the backlog of cases. We have had an unscheduled pilot of remote courts. Any changes to fundamental elements like jury trial need public debate. It is important that the judges’ views are solicited – though judges in this country are understandably reluctant to get involved in what might be seen as political decisions. But, if we are at the gateway to the most fundamental changes to courts since the 1870s, then the views of the judges are important. The consultation needs to be a major collaborative effort between the judges, lawyers, court users and litigants.
In looking at reform, there is a fundamental distinction which I have always made between automation and transformation. It is the former that has been the story of the first fifty years of court procedures. Transformation, in contrast, might lead to new ways of doing things. All the previous big reviews – by Woolf (Civil), Auld (Crime), Leggatt (Tribunals) started off with transformational ideas and ended up more as efficiency projects. We need to ensure that this not happen again.
That is why the asynchronous paper hearing is so important and can amount to transformation. There is not much point in looking only at automation and digitisation of the court system. The spirit behind any reform should also be genuinely transformational. That is the lesson of the Solution Explorer in British Columbia. It extends the court service and provides tools that help bring about settlement. It is a genuine game changer. It can be empowering to help people formulate their arguments and to understand simple things like the value of a chronology for their cases. A court service should have a function beyond the resolution of disputes: it should also be about prevention. The most important thing in the Briggs report was the need for a rewrite of the procedure rules.
You have always emphasised the possibility for greater access to justice with digital procedures. Do you still see this as viable?
Some of my critics have accused me of only wanting to cut court costs. Of course, that may be a government concern. But it is not my focal point. My prime emphasis remains the potential for increased access to justice. Online courts can reduce unit costs of the disposal of cases but may increase volume. I hope they will. I could accept higher overall cost for a better service that would take account of a latent legal market thus opened up. We might attract many more deserving cases through the system. That may be a net increase in cost for the taxpayer but it would be a net benefit for the citizen.