The Civil Justice Council has commissioned an independent review led by Dr Natalie Byrom, Director of Research at The Legal Education Foundation with the support of a wider virtual working group to gather feedback on the impact of COVID measures on the civil justice system. (A similar consultation in relation to the family justice system has been undertaken by the Nuffield Family Justice Observatory at the request of the President of the Family Division.) The aim of the CJC rapid consultation is
“to provide an overview of the operation of current measures and offer practical recommendations to inform the ongoing response to COVID. It will concentrate on the experience and reaction of court users. It will also provide useful ground work for any future wider review of the use of remote hearings, identifying areas where further evidence may be needed.”
Sir Terence Etherton, The Master of the Rolls, Head of Civil Justice and Chairman of the Civil Justice Council said:
“It is essential that we understand quickly how court users are being affected by the widespread changes adopted by the civil justice system in response to COVID-19. This review is a chance for users to give feedback on how the changes are impacting them and to suggest areas of improvement. The evidence collected by this review will be invaluable in shaping the way forward for the civil justice system, both immediately and in the longer term.”
The Transparency Project reported on the family courts consultation and its response to it in an earlier post: Justice on the altar
This post sets out the response to the CJC consultation drafted by Paul Magrath from his perspective as a law reporter, legal publisher and commentator, both with ICLR (publishers of the official Law Reports) and the Transparency Project. The consultation closed on Friday 15 May 2020.
Civil Justice Council Rapid Consultation on impact of COVID-19 measures on courts
Response by Paul Magrath, Head of Product Development and Online Content at the Incorporated Council of Law Reporting for England and Wales (ICLR) and trustee of the Transparency Project
This consultation has been commissioned by the Civil Justice Council to provide an overview of the operation of current measures taken by the courts in response to COVID-19, with particular reference to the experience and reaction of court users.
I am a law reporter (barrister), author and legal commentator with responsibility for the online publication of law reports and related legal information via the ICLR.3 platform. I write regularly for the ICLR blog on current legal affairs. I am also a trustee and member of the Transparency Project, and have contributed to its publications, including its Media Guide to Attending and Reporting Family Law Cases. I am also co-author, with Julie Doughty and Lucy Reed of Transparency in the Family Courts (Bloomsbury Professional, 2018).
This response to the consultation is therefore derived chiefly from my and my colleagues’ experience of attending and reporting or commenting on cases in court, as a law reporter or legal blogger. In response to the coronavirus lockdown, these cases have all been heard remotely.
The consultation seeks answers to a number of particular questions. I have only reproduced those to which my response relates.
What is working well about the current arrangements?
Reporters covering the High Court and Court of Appeal are able to access remote court hearings by contacting judges’ clerks and obtaining login details. In one case a reporter who had difficulty accessing the remote hearing platform (Skype for Business) was assisted by court IT support to obtain access by telephone instead.
Reporters in the Supreme Court / Privy Council are able to watch publicly broadcast hearings via existing live streaming links (using the courts’ own YouTube accounts).
An advantage of watching a case on a videoconferencing platform (or a live stream of the same) is that all the active participants are visible and audible and it is easier to follow who is saying what. There are no interrupted sightlines as in a physical courtroom. It is easy to take notes.
What is not working well about current arrangements?
Although court lists in the RCJ and Rolls Building are generally clear about whether hearings are in chambers / private or open to reporters, the provision of access details is inconsistent and in some cases non-existent. For example, the Family Division of the High Court provides details to enable accredited media reporters and legal bloggers to contact a judge’s clerk, but the Court of Protection list provides no such details, even for accredited media reporters.
Court lists outside London, eg via Courtserve, are generally not providing any such contact details, even for open hearings.
There needs to be a consistent, standardised approach, enabling anyone entitled to attend or listen in to a hearing (including the public) to find out how to do so. (See also the question on Open Justice below).
Which types of cases are most suited to which type of hearings and why?
Speaking purely as an observer, my impression is that hearings where both/all parties are represented and the evidence is in documentary form are generally much better suited to remote disposition than those involving lay parties and witness evidence.
I watched one of the mock Crown Court trials organised by JUSTICE to assess whether a full jury trial with witnesses could successfully be conducted. Although the case was a simple one factually, and ignoring the many technical hitches, I felt that the experience was definitely inferior in terms of serving justice to a trial in a physical courtroom.
However, many trials in physical courtrooms can include aspects conducted via videolink, and here again the same issues over witness demeanour, alienation and disorientation of the remote party can occur.
How does the experience of remote hearings vary depending on the platform that is used?
From an observer’s point of view, it makes little difference. However, if a reporter needs to ask a question about, say, reporting restrictions, it helps to use a platform that provides an independent “chat” function, or a way of being able to speak or get the attention of the judge. Subject to that, a reporter probably does not need to be even visible to the participants.
How do litigants in person experience hearings that are conducted remotely?
The Transparency Project has published a number of blog posts commenting on this, including:
Remote Justice – A Family Perspective (Transparency Project, 29 March 2020) http://www.transparencyproject.org.uk/remote-justice-a-family-perspective/
Remote Justice : A Judge’s perspective (Transparency Project, 7 April 2020) http://www.transparencyproject.org.uk/remote-justice-a-judges-perspective/
Remote Justice: A legal blogger’s perspective (Transparency Project, 10 April 2020) http://www.transparencyproject.org.uk/remote-justice-a-legal-bloggers-perspective/
What has been the impact of current arrangements on open justice?
Despite the efforts made to accommodate, or at least respect the idea of open justice, remote hearings have not been as open as they should be.
In the Supreme Court / Privy Council and some Court of Appeal there has been live streaming of remote hearings (as there was before Covid-19 for physical court hearings) and provision, in advance, of some documents to enable those watching to make sense of the proceedings. But the potential for extending this openness to other hearings, in lower courts, does not appear to have been considered.
Where cases are not live-streamed, access should be provided to enable members of the public and other non-media observers to log on to a remote hearing platform in order to “attend” the hearing, in the same way as they might be able to walk into court and sit in the public gallery. As noted above, the listings are not generally providing such details, with some exceptions. The Queen’s Bench Division and some Chancery Division cases in the RCJ/Rolls Building are being listed with such details, and are to be congratulated on the efforts they have made to accommodate open justice.
A major problem appears to be an assumption, enshrined in para 3 of CPR PD51Y, that providing access for media coverage is somehow equivalent to open justice. Para 3 states: “Where a media representative is able to access proceedings remotely while they are taking place, they will be public proceedings.”
For a number of reasons that is simply not the case.
Even if the media reporters who cover the courts are assumed to be the “eyes and ears of the public”, the fact remains that journalists only cover a tiny proportion of the hearings that take place each day. The decline of court reporting, especially at a local level, is well documented: see for example the Cairncross Review report https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/779882/021919_DCMS_Cairncross_Review_.pdf
At a time when many journalists have been laid off or furloughed, by reason of the lockdown, this decline in court coverage is likely to be exacerbated.
The interests of the press in covering courts may be to provide public scrutiny and ensure proper accountability, but they are just as likely to be the legitimate aims of furthering circulation and profitability by finding a sensational story.
Other court observers include academic researchers, students, justice campaigners, charities supporting the interests of prisoners, immigrants, refugees, victims of crime et al, as well as curious members of the public, all have legitimate aims in observing court proceedings in civil as well as criminal courts. But they appear to be excluded by the assumption that all of their interests are served simply by making the proceedings accessible to accredited members of the press.
Another assumption that is often made is that open justice is served by publication of judgments. Where, as in the family courts, the hearings are not open, the publication of appropriately anonymised judgment is a good way of providing some basic transparency and accountability. But for hearings that need not be conducted in private, the publication of the judgment is not the complete answer to the question of open justice. Justice must be seen to be done in terms of process as well as result. It is not just the outcome that is under scrutiny, but the administration of justice.
However, it is apparent that even the publication of judgments is not being managed in a consistent and comprehensive manner. There is a haphazardness about the way judgments are distributed and revised. This may not be related directly to the Covid-19 arrangements, but the focus on open justice provides an opportunity to recalibrate the importance of maintaining the public record.
Publication of judgments is one aspect of this maintenance of the record. Another, of course, is the recording of all hearings, and the preservation and, where necessary transcription, of such hearings. Again, this appears to be being managed in a somewhat haphazard manner, partly by reason of the variety of platform being used.
In the Family Division, in a guidance document that has undergone at least four successive revisions, Mr Justice MacDonald referred to a “smorgasbord” approach to the provision of technology, with some hearings being set up by the parties legal teams instead of the judge or court. The Transparency Project submitted a briefing document urging the courts to mandate the recording of all such hearings, however organised, and for the archiving of those recordings by or on behalf of the court, both for the record, and for the purposes of research. See
- The Remote Access Family Court v 4 (Judiciary, 16 April 2020) https://www.judiciary.uk/wp-content/uploads/2020/04/The-Remote-Access-Family-Court-Version-4-Final-16.04.20.pdf
- The Remote Family Court – where does transparency fit in? (Transparency Project, 2 April 2020) http://www.transparencyproject.org.uk/the-remote-family-court-where-does-transparency-fit-in/
- Covid-19, the UK’s Coronavirus Bill and emergency ‘remote’ court hearings: what does it mean for open justice? (Transparency Project, 24 March 2020) http://www.transparencyproject.org.uk/covid-19-the-uks-coronavirus-bill-and-emergency-remote-court-hearings-what-does-it-mean-for-open-justice/
What other observations would you make about the impact of COVID-19 on the operation of the civil justice system?
The urgent adoption of remote hearings in response to the Covid-19 crisis in order to keep the justice system going has massively accelerated a development that, to some extent, would have occurred eventually, as part of the HMCTS Reform programme. Since 2016 this programme has been digitising court processes, modernising and rationalising the courts estate, and developing an online court. One aspect of the development has been the increased use of video links to conduct hearings wholly or partly outside a physical courtroom. It is perhaps surprising, given the amount of investment in this massive project, that it should not have been ready to provide a ready-made solution. In fact, it appears that a bespoke remote platform, CVP or Cloud Video Platform was nearly ready, and is now in the process of being rolled out. The lack of readiness of this solution has resulted in a need to rely either on older embedded technology, such as Microsoft Teams or Skype for Business, or to rely on less tried and tested solutions, such as Zoom, which initially appeared to present issues of data security and risks of meetings being hacked. As it happens those risks appear to have abated, and security improved on the platform, which remains popular and, in my opinion, effective.
However, the fact that people have been forced to use a variety or smorgasbord of solutions is, in a way, a good thing, at least from a development perspective. I hope that the research being done into users’ experience of these different platforms can be harnessed to improving that provided as standard by HMCTS in the future. They have been provided with a golden opportunity to learn.
I would also observe that it is just as important to know what doesn’t work with remote justice, as to know what does; and to express the hope that we learn from being forced to conduct remote hearings even in unsuitable cases why it is so important, particularly in cases involving lay participants and witnesses, that some hearings continue to be conducted in a physical and not remote environment.
To put it another way, the fact that remote hearings could be used doesn’t mean they should be used. For many cases they will have saved money and time and promoted justice; but for others they will have been less than ideal. That knowledge can then feed back into the Reform programme and enable it to provide the optimum mix of physical and remote hearings in the post-Covid future.
Is Criminal Justice Under Lockdown Remotely Possible? (Transparency Project, 11 May 2020) http://www.transparencyproject.org.uk/is-criminal-justice-under-lockdown-remotely-possible/
Publication and correction of judgments – official and unofficial sources (Transparency Project, http://www.transparencyproject.org.uk/publication-and-correction-of-judgments-official-and-unofficial-sources/
Remote hearings and inclusive justice (Transparency Project, 24 April 2020) http://www.transparencyproject.org.uk/remote-hearings-and-inclusive-justice/
Socially distanced courts for the digitally excluded (Transparency Project, 19 April 2020) http://www.transparencyproject.org.uk/socially-distanced-courts-for-the-digitally-excluded/
Remote but transparent? Open justice under the lockdown (The Lawyer / Lawyer 2B, 17 April 2020) https://www.thelawyer.com/remote-but-transparent-open-justice-under-the-lockdown/
Coronavirus and the courts: how will a pandemic affect the conduct of litigation? 9The Lawyer, 6 March 2020) https://www.thelawyer.com/coronavirus-and-the-courts-a-boost-for-online-reform/
Paul Magrath, 14 May 2020