Jessica Jarvis

In March 2020 courts rapidly moved online. The three Covid lockdowns accelerated HM Courts & Tribunals Service’s existing digital plans, with the roll-out of the Cloud Video Platform in July 2020. Since then remote hearings have become part of the legal landscape. But feedback has been mixed, depending on the type of court, case and client. There are particular concerns surrounding crime and family cases. Yet the widespread use of remote hearings is clearly here to stay.

With the worst of the pandemic hopefully over, remote hearings look set to remain a feature of the justice system. According to the latest figures from the Ministry of Justice, as of 11 July this year, over 7,700 remote hearings were taking place each week – 32% of all non-paper hearings.

The lord chief justice, Lord Burnett of Maldon, gave guidance to judges in February on how to determine which hearings it is appropriate to conduct with some or all parties attending remotely.

He said it was ‘not a prescriptive practice direction’ but intended to assist in promoting consistency and predictability in the Crown courts. Accordingly, a variety of protocols has been issued by resident judges to suit local conditions and circumstances.

Lord Burnett said: ‘The decision as to whether participants attend a hearing remotely or in person is a judicial decision and a matter for the discretion of the judge in each case applying the “interests of justice” test in the light of all the circumstances.’

In general, he said that any hearing in which a witness is to give evidence, whether in person or remotely, will normally require the advocates to be present in court, as will all hearings where a defendant is required to attend in person. All hearings where the defendant attends remotely will require defence advocates to be able to communicate confidentially with their client immediately before and after the hearing.

Hearings generally suitable to be conducted remotely include mentions, bail applications, ground rules hearings, custody time limit extensions, uncontested Proceeds of Crime Act hearings and others involving legal argument only. Sentencing hearings ‘will require consideration on a case-by-case basis’.

Giving evidence to the Commons justice committee last month, Lord Burnett said that in the Court of Appeal Criminal Division, ‘almost all of the appellants’ and ‘lots of advocates’ attend remotely.

In the Crown and magistrates’ courts, he said, lawyers and others attend many preliminary and routine hearings remotely, adding that even in trials, witnesses, defendants and advocates have attended remotely. He said: ‘Most advocates are not very keen to have their witnesses give evidence remotely because there is a lack of immediacy and a lack of engagement with the jury or the decision-maker, but nonetheless it can happen.’

Burnett told MPs: ‘It is not suitable for everything, but I think the use of technology is as widespread as it should be.’ He added that ‘it can be really advantageous, particularly to make life easier for those attending’, but cautioned that ‘it is a mistake to think that it necessarily speeds things up’.

While the technology to enable the Cloud Video Platform, through which remote attendance is facilitated, is ‘pretty good’, Lord Burnett said ‘it is not perfect’. He gave an example of a recent Court of Appeal Criminal Division case he had been hearing when the bench had to stop to sort out a technical problem. ‘That, I am afraid, is a feature of using remote technology,’ he said.

To ‘step up on what we are using at the moment’ and improve reliability, he said, HM Courts & Tribunals Service has been developing a bespoke ‘video hearing system’. This has been piloted in a number of jurisdictions, but has ‘run into some technical difficulties and so it is a little stalled at the moment’.

Lawyers say the use of remote hearings depends on the attitude of the bench, with some judges more averse to it than others.

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Loss of respect – and connection

Recently, a virtual hearing was interrupted by the sound of a couple having sex, prompting one senior judge to clamp down on the use of remote hearings. Jeremy Richardson KC, the honorary recorder of Sheffield, adjourned a hearing in which it transpired that one of the advocates attending remotely had been simultaneously watching pornography.

Last year, a case concerning Swindon Town FC, heard virtually before the High Court, was interrupted by online observers. The Swindon Advertiser reported that members of the public blew raspberries, swore at the judge and shared obscene images.

This year, the tribunal chairwoman hearing the case brought by barrister Allison Bailey against the campaign group Stonewall and Garden Court Chambers, had to warn viewers not to sign in using offensive names, which could be seen by others.

A report in April showed that three-quarters of magistrates were not in favour of using remote hearing links as often as they had during the pandemic.

Carried out by the Magistrates’ Association, with the legal charity Transform Justice, the study canvassed 865 magistrates and concluded that audio and video links negatively affected communication and participation, particularly for vulnerable court users.

One respondent said: ‘I doubt that I have ever had a day’s sitting without at least two or three breaks due to technical problems.’ Another noted that some defendants appearing remotely ‘had a complete lack of respect for the court, staff and process, including but not limited to: appearing while in the bath, being half-naked, smoking and treating the process like social media’.

An 2020 survey of around 300 court users by Transform Justice found that 58% thought appearing on video made it more difficult for defendants to understand what was going on and to participate.

Meanwhile, research published by the MoJ last December revealed that 58% of judges and 54% of lawyers felt their health and wellbeing were negatively affected by online hearings. It showed that judges felt more pressured and tired, magistrates felt less confident about decision-making when the legal adviser was not in the same room, and lawyers working from home found managing boundaries between work and home harder.

This followed Law Society research from 2020 that found that only 16% of solicitors felt vulnerable clients were able to participate effectively in remote hearings, and just 45% were confident that non-vulnerable clients could do so.