Shortly before the UK’s coronavirus ‘lockdown’ was announced by the Prime Minister, I spoke to one of my clients, Rebecca (not her real name) about an upcoming court hearing in her case. At the time, the guidance by HM Courts and Tribunals Service (HMCTS) was that hearings should continue as normal but the situation was changing every day, with increasing numbers of confirmed cases of the virus.
I suggested to Rebecca that we could ask the court to hold the hearing by videoconference or telephone in the event that it became impossible for everyone involved to attend in person. It was to be a preliminary hearing, and I thought it would be feasible – although not ideal – for the hearing to proceed ‘remotely’ so that we could try our best to make progress with the case.
Rebecca is the mother of a young woman who died in the care of the state. Her case is the inquest into her daughter’s death, to be heard in a Coroner’s Court. I call it ‘her case’, but of course these are court proceedings which no parent ever wishes or expects to experience and which no family ever chooses to be involved in. Hearing evidence about how a loved one died, as well as about how different decisions or actions may have prevented their death, can be unbearably painful.
Understandably, Rebecca’s main concern was whether a remote hearing, during which she, her family and her legal team would be physically distant from the Coroner and the other interested parties in the inquest – the public bodies which may bear responsibility for her daughter’s death – would be as effective as an in-person hearing.
For me as a lawyer, an ‘effective’ hearing is likely to be one in which we achieve the outcome we seek, regardless of how or where it takes place. However, for the people who are really at the heart of the case, it is something more than that, and justice being done – and being seen to be done – must include their effective participation in the hearing. After all, what is a hearing if not an opportunity for the parties to be – and feel that they have been – heard?
I could not promise Rebecca that her views would be heard (or seen to be heard) by the Coroner in the same way if the hearing was held remotely.
As the coronavirus-related restrictions increased, in late March the Coroner decided that it would not be possible to hold the hearing in person, and that rather than holding it remotely, the hearing would be re-arranged for a date at some point after September. By that time, sadly over three years will have passed since the death of Rebecca’s daughter.
As with the rest of society, the justice system has had to adapt swiftly to the unusual and unsettling situation which this pandemic has created. At first, before the imposition of the lockdown, the message was that the operation of the courts should be ‘business as usual’. This soon became untenable, and the HMCTS guidance now is to avoid physical hearings and arrange remote hearings wherever possible.
In the criminal courts, new jury trials have been suspended since 23 March (although a limited number are due to resume from next week with safety measures in place), and as much work as possible is being carried out remotely, including applications for bail and sentencing hearings. An ‘interview protocol’ has been agreed between the police, Crown Prosecution Service and representative bodies for criminal defence lawyers as a guide to how and when suspects should be interviewed in police stations, including provision for virtual interviews.
This has not been easy: when deciding whether to attend police station interviews in person, some criminal lawyers have described a tension between prioritising their health or the interests of their client. It will be vital to ensure that the safety of everyone participating in jury trials – as well as all other in-person court hearings – can be ensured.
In the civil and family courts, priority is being given to the most urgent cases, and hearings are proceeding remotely where possible. The public health emergency and the government’s response to it has also given rise to litigation, often in relation to vulnerable groups and those who interact with or rely on the state, such as people with disabilities, prisoners and those detained under immigration powers. There are proposed legal challenges relating to personal protective equipment for healthcare staff, the need for a public inquiry into the government’s handling of the pandemic, and even the lawfulness of the lockdown restrictions.
Prior to this crisis, the Ministry of Justice had announced the investment of £1bn to reform courts and tribunals in order to build “a modern system for administering justice”, including the resolution of simple disputes online and increased digital working across the criminal, civil and family courts. For the justice system, the need for physical distancing to slow the spread of the virus has fast-tracked a vast and immediate expansion in the use of virtual and telephone court hearings.
At present, this is an emergency response to a crisis: an exercise in making the best of a difficult situation. However, as the lockdown restrictions are eased and life starts to return to something closer to normal, there will have to be careful consideration of the extent to which the justice system continues to use technology as an alternative to in-person court hearings.
Everyone with a stake in how the justice system operates – that’s all of us – should reflect on what we believe to be important for justice. What are the absolute principles at the core of our idea of justice? Do we prioritise a just outcome over cost efficiency, and if so what implications does that have for when and how hearings can take place remotely? What does the principle of open justice – that the public should be able to see and scrutinise how the law works – mean for the use of technology?
When we talk about people having access to justice, this cannot simply be the ability to attend court, and must surely include being able to participate effectively in proceedings – whether the case concerns criminal charges against you, your family, your home, your job or any other dispute about your legal rights. Effective participation may require legal representation, and it may require physical presence in a courtroom with the judge or jury deciding the case.
There may also be types of hearing which can be effectively dealt with remotely, but we should not sleepwalk into prioritising efficiency or administrative convenience over justice. We should think carefully about when remote hearings are appropriate – and ensure that what is lost does not outweigh the financial savings – before emergency measures adopted during this lockdown become a ‘new normal’.
Respect for and compliance with the rule of law depend on citizens believing that we have a system which delivers justice: that if they need it, they will have a fair hearing before an independent court which results in a just outcome. If the justice system becomes more ‘remote’ from the people who use it, our collective faith in it may be at risk.