Her Majesty’s Courts and Tribunals Service (HMCTS) has published the final report of an independent evaluation of video hearings in England and Wales by researchers at the London School of Economics. HMCTS’s summarises: ‘new report shows video hearings service convenient, robust and easy to use’. Deep students of the subject may remember that this report was preceded by an earlier one, also declared a roaring success by HMCTS, but where the team actually found that ‘the majority of video hearings experienced technology difficulties’. So, as would in any event be good practice, you really should read the report for a full picture not just the relentlessly ‘on brand’ summary. On the crucial issues to be researched on the use of video hearings, the academics have rather more to say than is reported by HMCTS. They are not necessarily more critical: just more nuanced.
We are all now the children of Covid 19. So, it would be pretty surprising if a court service could not knock up a video system capable of handling simple cases. After all, we are all online using zoom, Teams and other programmes to do the equivalent every day of the week. The crucial issues lie in the detail. For example, how well did the technology work? What are the lessons on best practice? Do users see video as the equivalent of physical presence? Is there any difference between the experience of professional and lay users?
The rapidity of change during the pandemic means that the research needs to be precisely located in time. It took place between March 2019 and March 2020. So, it will be out of date in relation to developments since. There remains a problem of number. The research team observed 23 hearings, ‘six of which were unable to proceed due to technology problems, including product outages and parties unable to log on to the platform. Three additional hearings were adjourned to a later date so that the judge and other party would have time to read documents that were produced at the hearing.’ So that is a total of just 14 – you would be pushed to declare this sufficiently large to be representative and we must await the definitive research exercises that are, hopefully, to follow.
The technology failed in a quarter of the cases – that is a higher failure rate than I would regard as acceptable in personal usage of video software. This is particularly so because these cases were selected at a time when there was a pre-hearing call with a video hearings officer – you now get ‘an automated online self-test that checks their equipment and internet speed.’
It turns out, on further analysis, that only eight hearings actually started on time: ‘Nine hearings had slight delays (between five and 15 minutes) as parties needed to restart the platform and log on again.’ Logging on clearly caused problems even for Her Majesty’s Revenue and Customs in tax hearings. This presumably can be remedied in due course.
It should be noted that these hearings were, for the most part, fairly simple: ‘This report examined the development, implementation, and user experience of the video hearings service and platform across four different hearing types in the civil, family, and tax jurisdictions: Set Aside Judgments, First Direction Appointments, Short Notice Hearings, and Basic Tax Appeals.’
It is pretty clear that the litigants in the research were not entirely typical of many self represented parties or benefit claimants: none were struggling with mobile phones, for example: ‘Most participants had previous experience of using video conferencing technology, the majority already use such platforms regularly for work or at home. Ten used a laptop to access the hearing and three used a desktop computer.’
These are, however, qualifications within the report rather than external sources of criticism. HMCTS would be justified in arguing that the technical platform can only get better and has, indeed, improved since March. We just do not know from this research if the new automated test is any good: ‘Due to the elapsed time between a hearing being listed and taking place, we did not interview participants who experienced the automated self-test.’
The overall appreciation of users was positive but probably reflective of the type of case chosen (eg tax rather than benefits). ‘Most users commented on the ease and advantages of having their hearing via video. However, they thought that video hearings would be a disadvantage for users who do not have access to technology or a stable internet connection in their home. The service currently requires a desktop or laptop computer, and a minimum internet speed. Users also thought that a video hearing would be difficult for people who struggle with hearing or who might be anxious or unfamiliar using video technology.’
One helpful element in the report is a list of recommendations of best practice. It would be so useful to pull together international experience on a definitive draft code. Those chosen by the researchers are practical and clearly good sense – ‘Users, including judges, should be at a distance from their camera so that their head, shoulders, and some of their torso is in view. This will allow for gestures and other movements to be seen. Users should avoid backlight or harsh direct overhead light.’ Some are likely to raise issues for poorer users, such s ‘We recommend advice given that external microphones and/ or headsets are advisable to avoid distortion and feedback’. The researchers also commend judges to manage the hearings with care: ‘ such as strategies to support effective turn-taking and prevent parties from talking over one another. This may include investigating the introduction of a function that signals who is speaking.’
The overall summary of their conclusions by the researchers was cautiously positive: ‘Most users commented on the convenience of having a video hearing and the time and cost it saved them. Some users also reported reduced stress and anxiety due to being able to take part in a hearing from their home or from their solicitors office. Legal professionals felt the cases selected for the pilot were appropriate and also recognised this option as a benefit for parties. Users reported finding their video hearing easy, effective and straightforward. However, some recognised a challenge with communicating over video and felt that it might be difficult for people who are not familiar with or do not have access to the suitable technology. Users maintained the view that pre-hearing support was highly valuable and helped them navigate the technology on the day of their hearing. All users were highly satisfied with how the judge managed the hearing and the formality of the hearing. Users who experienced technological issues did not report these as unmanageable and thought that judges dealt with any disruption effectively.’
HMCTS is, thus, justified in reporting the positivity. Let us hope that the caution is not forgotten or dismissed. This report authorises cautious development: it does not justify wholesale implementation of video hearings for all – particularly benefit claimants and those on low incomes with inferior technology and access to the internet.