LittleLaw Looks At…How the courts have operated through lockdown

December 12, 2021

7 min read

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What’s going on here?

The Covid-19 pandemic has made measures such as social distancing mandatory, resulting in a sudden reduction in face-to-face hearings and an implementation of Remote Hearings.¹ These changes were part of a long arduous process of bringing the Courts into the 21st century, shifting from a paper-based to a digital system, as part of the Her Majesty’s Courts and Tribunals (HMCTS) Reform Programme.2 This crisis initiated real progress and did what various initiatives previously could not.

Be that as it may, the backlog of cases in the courts, predating the pandemic, has now reached record levels. This was a stark indication that the courts were not in a good position to manage the unprecedented challenges posed by Covid-19. Government funding fell by 21% in real terms in the last decade, court buildings closed, and days were reduced for HMCTS employees.3 This poses the question of how did the courts actually operate through lockdown? Did continued operations implicate progress when actually, the Courts were struggling? To contextualise how the courts operated during lockdown, we must first consider pre-existing challenges.

Pre-pandemic court operations

The diminished investment in the justice system in the decade preceding the pandemic arguably exposed the justice system’s vulnerabilities. Derek Sweeting QC, Chair of the Bar Council highlighted “we are virtually alone in western Europe in not having maintained or increased the funding of our justice system over the last 10 to 15 years…we are well behind comparable jurisdictions”.4 A report produced by law firm Mischon de Reya highlighted the comparable inefficiencies to other jurisdictions, notably Singapore, which has recently made significant advances to enhance dispute resolution offerings.5

The need for an overhaul was evident, but there was a struggle to deliver. Additionally, the pandemic’s unexpected effect on the courts was not duly considered by those responsible for maintaining the justice system. The preparatory endeavours of the 2016 Exercise Cygnus, which is the Government’s simulation of a flu outbreak, did not adequately scrutinise the potentially adverse impact of a pandemic on the courts.6

The uptake of technology during lockdown

As a result of this, when the pandemic hit, the abrupt need to shift to remote hearings magnified the issues the courts were already dealing with. Remote Hearings meant resources had to be stretched even further to invest in costly technology. In addition to legalese (the formal and technical language of legal documents), technology now added another barrier to communication between lawyers and lay clients. Technical difficulties were also rampant which arguably undermined the mandate that Hearings be fair. These all threatened to undermine the efficiency of the courts’ uptake of technology during lockdown.7

Yet, the shift to remote operations was the most meaningful change during the pandemic. This was attributed to the speed at which the courts jumped into action to respond to the challenges of the pandemic. Implicit in its success is questioning the reasons for not implementing these changes sooner. The reasons may be due to the complex theory driven approach to implementation. Practicality through the form of a pandemic highlighted that the Evaluation Framework being used, although feasible, was seemingly not the best or most effective approach.

The Lord Chief Justice contends the courts have acted remarkably,8 especially when speaking in relative terms to many other jurisdictions. Similarly, the Lord Chancellor said: “we were able to keep the wheels of justice turning in a way that I do not think any of us could have foreseen at the beginning of this crisis…The numbers of cases that were being heard were impressive.”

These opportune developments were essential to the continued survival of the justice system and will bring long term benefits to their operations. Given the benefits, Remote Hearings may invariably be the required avenue for some types of cases as it improves efficiency in delivering justice and facilitates court processes with an element of transparency.

How have Remote Hearings dealt with the backlog of cases?

However, has this progress been undermined by the sheer backlog of cases? The backlog in the Crown Court for example, which was at extreme levels before the pandemic, has reached what is now deemed crisis levels.9 The implementation of Remote Hearings has arguably hurt rather than helped, given the requirements of a second courtroom joined by technology, causing one case to employ the space of two.10 Furthermore, a wait time of several years for a hearing can significantly detract from the quality of justice as victims’ and defendants’ memories wane over time.11

However, some courts are better adapted than others. In Commercial Courts there is a welcoming attitude from business parties towards the shift to Remote Hearings for commercial litigation and support for expanded use.12 This may be evident from the nature of these cases, given the international element that is almost always present in commercial disputes.

The environmental and economic justifications have resulted in a consensus across all areas of law that Remote Hearings continue. However, although Remote Hearings are undoubtedly beneficial as a vital tool for courts, it also raises questions about the effects on litigants’ rights and their access to justice.13

Impact of Remote Hearings on the interests of justice

The essence of Remote Hearings thwarts public inclusion and can interfere with the public’s observation of justice.

The Civil Procedure Rules Practice Direction 51Y.3 (CPR PD 51Y.3) seeks to solve the problem as it highlights that “where a media representative is able to access proceedings remotely while they are taking place, they will be public proceedings”. This is a good attempt, but in no way can media broadcasting duly be open justice’s counterpart. Mention need only be made of the implications of a report from a biased reporter and the effect that would have on the appearance of justice where that is the only account given of a particular case. With justice should come a great deal of scrutiny and qualifying proceedings as public on account of “a media representative” will not suffice.

Nevertheless, at present, Remote Hearings are the best way to counter the virus’ spread . They also promote the administration of justice by overcoming the courts’ present delays. Can open justice be reconciled to remote justice? The courts are exploring the prospect of live streaming, similar to the way cases are heard in the Supreme Court. This could be the reconciliation needed to uphold open justice if executed correctly.

LittleLaw’s verdict: The future of remote justice

Many judges, lawyers and judicial personnel believe the efficiency, convenience, and financial benefits of Remote Hearings mean they are here to stay.14 For the benefits of remote justice to be effective, it must be done in conjunction with virtual access to courts by the public to provide a relative degree of accountability.

However, Remote Hearings have not been thoroughly successful in decreasing the backlog of cases, as this is a problem that goes beyond a new avenue of serving justice. The nature of a Crown Court Prosecution for example, arguably requires a certain level of human interaction to appeal to the appearance of justice. Considering the liberties at stake, the need to be sure in criminal proceedings justifies the need for parties to be present in court, hearing, speaking, seeing that justice is done and appears to be advanced. It is believed smaller Hearings will be suitable for online platforms in the long run. But this does not mean every Hearing should be done remotely.15

In an attempt to make progress, there is advice from the Crown Prosecution Service to prosecutors, to look at accepting guilty pleas to manage the backlog. There are also proposals to change the trial structure, but this will inevitably incur a long wait for change. In essence, this backlog of cases seems to be fastened to the justice system to a point where it is now something we work around as opposed to pioneering real change.

There has been, however, an evident shift in litigation trends with an increased demand for alternative dispute resolution. This can inevitably deal with backlog to a certain degree and promote effective case management.

Report written by Kerianne Pinney

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Footnotes

  1. “Remote hearings in the family justice system: reflections and experiences” (Nuffield Family Justice Observatory, September 2020).
  2. David Williams, David Johnson “COVID-19: Litigation in the Time of a Pandemic Latest Updates, (6 January 2021).
  3. David Williams, David Johnson “COVID-19: Litigation in the Time of a Pandemic Latest Updates, (6 January 2021).
  4. HL, “Uncorrected oral evidence: Constitutional implications of Covid-19” (9 July 2020).
  5. Nick Hilbourne “Civil justice system “in desperate need of modernisation” (Legal Futures 4 November 2021).
  6. HL, “COVID-19 and the Courts” (22nd Report of Session 2019-21).
  7.  HL, “COVID-19 and the Courts” (22nd Report of Session 2019-21).
  8. HL, “Uncorrected oral evidence: Constitutional implications of Covid-19” ( RT Hon Lord Burnnett of Maldon 9 July 2020).
  9. COVID-19 and the Courts (Parliamentary Business, Publications & Records, 30th March 2021).
  10. Sooraj Shah ‘Lack of investment’ behind delayed court cases’ (BBC, Technology of Business 22 September 2020).
  11. COVID-19 and the Courts (Parliamentary Business, Publications & Records, 30th March 2021).
  12. Dr Natalie Byrom, Sarah Beardon, Dr Abby Kendrick, “The Impact of COVID-19 measures on the civil justice system” (Report and Recommendations May 2020).
  13. Alicia Bannon, Janna Adelstein, “The Impact of video Proceedings on Fairness and Access to Justice in Court” (Brennan Center for Justice, 10 September 2020).
  14. Christy Rush, Nabeel Osman “How COVID-19 has changed he way our courts operate” (Dispute Resolution Blog, 30 June 2020).
  15. Sooraj Shah ‘Lack of investment’ behind delayed court cases’ (BBC, Technology of Business 22 September 2020).

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