HMCTS should ensure that court users are sufficiently able to follow and participate in virtual processes
The House of Commons Select Committee on Justice has issued a report following its inquiry into the effect of COVID-19 on the courts and tribunals in England and Wales. The courts and tribunals have continued to function throughout the pandemic, although there has been a significant rise in the number of outstanding cases in the magistrates’ courts and the Crown Court. The report considers various issues, but this article will concentrate on the technological issues.
The courts have rapidly adopted remote hearings in response to the pandemic. The judiciary and lawyers have largely been positive about the move to using video and audio channels. However, there is emerging evidence that remote hearings are less satisfactory for some lay participants (parties and witnesses) and vulnerable court users. Remote jury trials have not taken place in England and Wales.
Many of the measures taken to respond to the pandemic represent an acceleration of the ongoing court reform programme which began in 2016. The Committee says that any steps taken to increase the capacity of the courts to hear cases more effectively is to be welcomed. However, it is currently unclear to what extent the measures taken to respond to Covid-19 will become permanent and how they fit within the overall reform programme. There have been a number of rapid reviews of the impact of remote hearings. However, there is considerable concern over the quality of data being gathered by HMCTS. The Committee says it is vital that as the operation of courts and tribunals changes so rapidly, every effort be made to ensure effective public debate over the effects on access to justice.
The Committee broadly welcomes the greater use of technology which is an intrinsic part of HMCTS’s reform programme. HMCTS, judges, magistrates and legal professionals have done extremely well to keep the court system ticking over despite the restrictions imposed during the pandemic. A high proportion of hearings have gone ahead remotely in particular areas, eg for commercial cases. However, the Committee says that it would not want to see remote hearings maintained permanently without further assessment of the experiences and satisfaction of lay participants, including their access to the necessary technology and comprehension of proceedings. It is particularly concerned that disabilities or poverty can make it very difficult for some people to access justice properly via remote hearings.
There is a risk that technology exacerbates the sense of there being a two-tier justice system. The appellate courts at the top of hierarchy have moved fairly seamlessly to remote hearings. Large commercial law firms have welcomed the shift to remote hearings and advocated for the expanded use of remote hearings in commercial litigation.
At the coalface of the justice system, in the criminal justice system and the Family Court, technology has played a positive role in enabling the wheels of justice to turn where they otherwise might not have done. However, in terms of the overall impact of technology, the Committee’s sense is that it carries many more risks for those who are the most vulnerable users of the justice system. The magistrates’ courts and the Crown Court are ill-equipped to adapt to using technology when compared with appellate courts tacking commercial cases.
It says that it is particularly worrying that when it comes to evaluating the impact of technology, there is little known about those needing the most support. The Committee supports the call from the Civil Justice Review stating that “the most pressing priority relates to the need to understand the experience of non-professional court users, particularly those who are considered vulnerable under existing law and practice directions, those with protected characteristics and those who are litigants in person”.
The Committee recommends that HMCTS sets out a policy to ensure that court users, particularly those who are or may be considered vulnerable, are sufficiently able to follow and participate in virtual processes. This policy should specify how such checks are to be carried out and which official of the court is responsible for making them. A report should be made by that official to judges or others conducting proceedings to the effect that participants are able to understand what is being done and participate as appropriate before proceedings commence or continue.
It also recommends that HMCTS commissions research to establish how the principle of open justice should apply to remote hearings. That should include research into how the public—not just the media—can ‘attend’ hearings.