Keeping Control During Remote Hearings

Jessica Kimbell, GovNet
September 17, 2021

In an earlier blog, we discussed the latest figures from the Ministry of Justice (MoJ) with regards to the growing backlog of crown court cases as a result of the COVID-19 pandemic. This number reached a record 56,000 in January, leading to several watchdogs to share their “grave concerns” over the long-term implications.

 
Tackling the backlog of crown court cases

This post also explored what initiatives have been put in place in response to these alarming figures, including key insight from Gemma Hewison, Strategy & Change Director for HM Courts & Tribunals Service (HMCTS).

As part of this drive, the MoJ stated that 60 Nightingale court rooms will be setup and that they will be enabling more socially distanced trials by the end of this month. A spokesperson for the Department said: “The pandemic has posed an unprecedented challenge to our criminal courts, but hard-working staff and professionals have strained every sinew to continue to deliver justice for victims. Major challenges remain which is why we are spending hundreds of millions to drive the recovery further, deliver swifter justice and support victims.”

 

The rise in remote hearings

The HMCTS investment has included the provision of equipment to host more remote hearings, and, in fact, the MoJ said last month that more than 20,000 are now taking place each week compared to around 550 in March last year, which represents a rise of 4000% (figures correct as of February 17th).

Whilst the increase in remote hearings is deemed to be a positive move, it isn’t without its caveats, it seems. Texas lawyer Rod Ponton was left embarrassed after a video clip of him appearing on a virtual court session as a cat made headlines around the world. Thankfully the judge in question, Judge Roy Ferguson, saw the funny side, stating: “These moments are a by-product of the legal profession’s dedication to ensuring that the justice system continues to function…”

 

Remaining in control during a remote hearing

On a more serious note, however, Sir Julian Flaux, the Chancellor of the High Court warned last week that the sector will need to “guard against unintended consequences of informality”, as it considers adopting remote hearings on a permanent basis post pandemic.

In a speech at the Chancery Bar Association, he stated that “an element of formality in a courtroom is important, and serves to demonstrate the seriousness of the decisions being taken. Particularly in cases involving individuals and the economically disadvantaged, the outcome of a hearing can, and frequently does, have life changing consequences”.

Within a report from The Law Society Gazette, Sir Julian noted that some barristers now take instructions via WhatsApp during proceedings, parties are now speaking more freely among themselves, and that litigants are behaving less appropriately.

The Chancellor of the High Court also expressed his concern that five years from now, those new advocates with less experience of live hearings may lose an “inherent sense of how to behave in court”. He added: “As well as the detrimental impact on their professional development, that might be accompanied by less regard for the rules of the court such as deadlines for filing documents with a risk that the system would slowly become less fit for purpose.”

The benefits of remote cases vs live hearings are likely to be subject to extensive debate over the coming months, and could influence how the MoJ chooses to use virtual technology once normality resumes and the backlog begins to shrink.

What is your opinion? Should remote hearings be here to stay? Do you share Sir Julian Flaux’s concerns? Please leave a comment below, or contact us at info@modernising-justice.co.uk