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As Liverpool Crown Court becomes the latest Court to publish guidance setting out that “Only in an exceptional case” may an advocate attend a hearing remotely, Caroline Goodwin KC sets out how and why the Courts should instead be embracing and utilising remote hearings, to the benefit of the Bar and the whole Criminal Justice System.
If the pandemic has taught us anything, it is that we can embrace new technology in our courts. Let us not throw it away and abandon the use of remote hearings.
The emergence of new Covid variants has kept the pressure on courts to minimise footfall. Remote working is here to stay but the medium it is not loved by all. Whilst it is by no means perfect, it has significant advantages for almost every participant in the criminal justice system. It is vital that the courts make long-term use of what has been learnt and devise a new way of delivering justice that is quicker, more cost-effective, and allows greater access to justice. Remote hearings have a strong part to play. Can fairness and justice be achieved remotely? A positive and resounding “yes” is the answer to that question.
When we were first hit by the pandemic, the use of remote hearings kept the justice system on its feet. Between mid-May and the end of December 2020, audio or video hearings accounted for just over half of hearings, across all jurisdictions, emphasising just how valuable a resource this medium had become. As the courts respond to the Prime Ministers drive to re- energise the country we shall see footfall into buildings increase, consequently we need options not only to protect court users, but to be smart as to how we tackle a huge number of preliminary administrative hearings which are required to ensure that criminal trials are reviewed and listed. The adage “where there is a will, there is a way” can have no greater application than here.
We cannot ignore the fact that HMCTS accelerated the technology reform programme by increasing access to remote technology at pace. Taxpayer money has ensured that the number of physical courtrooms with access to video enabled hearing technology has increased. We simply cannot let that investment go to waste and a chance to modernise by pass us; we must use it, not lose it.
On 4th June 2021, the Lord Chancellor, delivered a speech at the Law Society and said to the audience that the temporary measures introduced during the pandemic should be seen as an opportunity to create a more modern justice system and one of those ways to enable this was through the increased adoption of new technologies in court.
As the roadmap out of this situation is being formulated and the courts begin to open up, we already know that there will be a drive to increase the throughput of cases. There will be a need for more Recorders to sit and for practitioners to handle a greater number of cases, but the cuts to the bone in legal aid over the years mean that there are simply not enough Recorders or suitably qualified practitioners available to cover the work, and we cannot be in two places at once. The short-sighted, parsimonious, and begrudging way in which the criminal justice sector has been treated has brought us to this position. Remote working can and will help us address the imbalance and address it safely and efficiently, but this will require a co-ordinated effort from the judiciary and listings. Trials being brought into warned lists with little liaison with clerks, or other cases listed with no opportunity to make a sensible application for counsel to appear remotely is not the way forward.
This is not just about safe working, it is about being light on our feet and adapting. Increased footfall into court buildings brings with it a host of issues including the fact that too many people in our buildings will ironically reduce the occupancy levels if we all have to isolate as per the “pingdemic”. We need to ensure access to justice is access for all and that there is a fair way of achieving this and doing so in a timely and safe way.
The criminal process is there to provide protection for the public and accordingly that requires hearings to be conducted without unnecessary and protracted delay.
Delay affects witnesses in a myriad of ways, including their willingness to participate, stay engaged and or the quality of the evidence that they give. Remote management of cases therefore is a string to our bow to ensure that those early administrative hearings are listed and heard efficiently preferably with trial counsel conducting them.
Of course, it is no good having either an early hearing with Counsel attending remotely or indeed having conducted cross-examination in advance so that it can be received in the court on a video such as a section 28 hearing (pre trial recorded cross examination), if the trial itself is not going to be listed for another one or two years. It is unfair to expect those engaged in the criminal process to endure lengthy delays in the progression of cases, but remote hearings do keep those early hearings moving forward.
Not being physically present in court can prevent the onset of stress. There are many individuals for whom an attendance from home via a link is a necessity. For the most vulnerable, the ability to attend from home is important, it can remove anxiety of not only how to reach court but may also remove them from a building where they are potentially in conflict with those who are also engaged. How often have we attended court where there are ‘supporters’?
It is now relatively routine for witnesses, including vulnerable witnesses to give their evidence remotely via live link or as mentioned above via section 28, we have witnesses appearing in courts whilst being located abroad and there is a further drive to invest in additional remote facilities so as to enable witnesses to be located in a separate place, whilst Counsel conducts either examination in chief or cross-examination from a different venue. If we are prepared to be as flexible as this in those circumstances, we surely must be able to conduct certain types of hearings where counsel appears remotely? These are often hearings that frankly would help the profession sustain itself. That cannot be too much to ask in a more enlightened and forward-thinking time.
Remote hearings avoid the excessive and incidental costs of travelling long distances to court, which reduces the costs incurred by the advocates and the overall carbon footprint of the justice system.
The flexibility of having participants attend remotely means that court time can be used more efficiently. If for instance an individual is unable to attend because they have been told to self isolate they can still conduct court business by remote hearing and there is no need therefore for a hearing to be postponed at short notice,thus leaving the court empty and unused. Of course such a facility is not limited to the present pandemic experience, so if for any other reason a participant cannot travel to court, the video facility is open for use and the wheels of justice keep turning.
Life as a criminal barrister is tough and demanding. The hours are long and the demands that are placed upon counsel are significant. The advent of remote hearings has opened up new opportunities for those who have childcare responsibilities, so as to bring some semblance of balance and dignity to their working lives, thus prolonging their ability to remain at the criminal bar. The gradual and sad loss of senior women at the bar can be stemmed with a more flexible approach to whether we need to attend certain types of hearings. The future can be a very different picture to the horror of the past.
The conversation needs to turn to what is required to ensure that remote hearings generate the maximum benefit for court users.
First and foremost advocates need greater and more flexible access to our clients, particularly those on remand. HMCTS and HMPS are aware that there needs to be a significant increase in access between client, solicitor and barrister. If the CPR rules are to be followed, this is a priority. We cannot have non-compliance hearings if we cannot even speak to our clients let alone have physical visits. More video appointments are needed over a wider range of hours in the day and those conferencing areas need to be physically resourced within the prisons.
We need to ensure that technology is up to speed and that there is adequate training for the court staff that have to operate it. Meanwhile, the roll out of tech by HMCTS continues. CVP will soon be replaced as part of the reform program by the video hearing service, which is presently being used in the tax, property and employment tribunals and is currently being tested in civil and family hearings. We hope this can be used for prison conferences as well as hearings.
We must ensure that participants have access to the right type of technology if they are going to attend remotely. Not everybody has access to laptop technology of the highest order or a quiet place from where a hearing can be conducted privately and it certainly would be unsatisfactory if someone was attempting to appear remotely using inadequate tech. We need to establish at an early stage what the situation is and what is deemed “adequate technology”? Invariably a defendant will be expected to attend court, but at the present time this is not always the case and we need a basket of practical options that do not undermine the administration of justice. Some defendants we know have attended on link from their solicitor’s office (provided it was deemed appropriate) or home. The PTPH form could include a question about digital access method and the issues arising should be actively case managed, not ignored. We need fair and inclusive hearings.
If we think about it, not every issue can be foreseen when attending a video hearing but what we do know is that good preparation can allay many concerns. Listing permitted, there will be active cooperation in advance of a hearing between parties and a short note can be uploaded to the DCS so that the Judge has an opportunity to be made aware of the points to be addressed. We do need to consider an additional “open line” ideally using an encrypted messaging system, so the legal team can effectively communicate with each other, but this does not prevent the use of a remote hearing.
Because we have not experienced the like of a pandemic, there is limited academic research on remote hearings. There is little material which examines the user experience or analyses the outcomes in terms of guarding against bias, prejudice and disadvantage to a defendant. What we have had hitherto has been limited to one or two papers and was conducted in the lower courts, but of course we are here now dealing with a wholly different situation. It is important to stop and think what the user experience is and how people are viewed when they appear on video screen and how it may or may not influence outcomes. There are improvements to be made and they can be aided by such academic research.
Not all hearings justify in-person attendance, particularly interim applications where no substantive issues are being considered. We need to have a sensible approach as to what is suitable and what is not; and that discretion needs to be applied with clarity. Judicial discretion is of course overriding but with a productive dialogue process we can identify those hearings where it is indeed efficacious to use CVP. There can be no disadvantage to having some form of protocol to which we can all refer which would identify those cases which naturally lend. This undoubtedly would provide clarity and consistency to all court users as to the parameters for making submissions on any request for a remote hearing.
There must be a system in place so that all parties are informed in good time as to whether a hearing will be in person or remotely. There needs to be a realistic opportunity to make representations about a hearing. The primary concern is for the interest of justice and of course the interests of the defendant. A late listing without an adequate notice period means that the necessary preparations may not have taken place in time and may mean a less than satisfactory hearing.
There needs to be a standardised approach to making representations about remote access. One courtesy is ensuring that, when the case is listed, there is an appropriate time for counsel to make representations to alter the nature of a hearing. If Counsel is engaged in a trial in another court centre, it makes perfect sense to be able to appear in an appropriate hearing remotely. Practical discussion can mean that what appeared at first blush impossible is in fact achievable, even if counsel is engaged in a trial. There needs to be an elastic approach to hearings guided by a spirit of assistance, not delay or obstruction.
It is clear the criminal justice system can benefit greatly from remote hearings but they must be used appropriately. Jury trials, and any hearing involving contentious evidence or argument, do not fall within that category. It is important to acknowledge that the client must come first, but there are real opportunities for change.
The profession is looking forward. The new digital area has demonstrated that ‘remote’ can be adopted and adapted to a myriad of circumstances.
For those who may think this is just talk, one only has to look at the Women in Criminal Law survey on remote working. There were strong indications as to which hearings should have a presumption of being remote. 90% of the people who answered the survey questions felt that the following ought to be considered for remote:
We know that as we are reading this article that many more examples will be springing to mind, such as interim POCA hearings or section 28 hearings regarding editing. There is a flow of appropriate hearings that aids the administration of justice and an open-minded approach to this topic, exemplifies why we need to be flexible.
We just need to sit down and think about it. The desire for change is there and this is a new chapter of working. The reasons to continue with remote hearings are overwhelmingly convincing and we now need to see this applied on a permanent basis so that there is no necessity to even comment on it. The efficacious use of remote hearings can help to reduce the backlog and many more individuals will see an efficient and modern way of working. What exactly is there not to love about this opportunity? A rhetorical question it maybe but the dawn of a new age has arrived and we are a part of it.
Caroline Goodwin QC is a highly regarded barrister, ranked in the Legal 500 where she is described as a “tenacious and enthusiastic advocate”. Caroline was Chair of the Criminal Bar Association from 2019-20, and remain dedicated to advancing the interests of the profession.
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