Covid-19 has had a massive impact on the judicial process in the UK, producing a widespread and unexpected pilot of digital courts. There had been a slow march in this direction prior to the pandemic under the Ministry of Justice’s plans for digital transformation of the UK legal system. However, the lockdown sparked a technological innovation in the courts, which enabled them to continue to operate during lockdown, and even eat into their lengthy backlogs in some cases!
The rapid uptake of remote courts begs the question - will there continue to be a place for virtual courts after lockdown?
While not much is certain about our post-Covid-19 future, according to new data from the Local Government Lawyer/LexisNexis ‘Life after Lockdown’ survey, the answer to this question is a resounding “yes”. More than 500 lawyers were surveyed, including 70 heads of legal for this exclusive report. The general feeling amongst local government lawyers is that virtual courtrooms should continue.
Going online has proven popular in many quarters, leading to savings in cost and time, as well as giving inhouse teams the ability to develop their own advocacy. A Lawyers in Local Government, Snap Shot Survey - Virtual Court Hearings, found 90% of their respondents rated their remote experiences positively. With 83% wanting virtual hearings to continue. Many other surveys have been carried out across the profession and reached similar conclusions.
Tim Briton, National Lead for Litigation and Licensing at Lawyers in Local Government says:
“Using technology to enable remote hearings give us extra time in our working day so we get more done – and there is more work to be done now than ever.”
Perhaps then, the better question to ask is not could courts remain online post-Covid-19, but should they? Just because a virtual hearing is possible, in technological terms, in a particular case, it does not follow that a virtual hearing is the best option in the interests of justice. The Ministry of Justice had made it clear in September 2016 that in England and Wales virtual hearings would become a feature of the judicial system, but only in appropriate cases.
There are, some notable limitations of the virtual hearings; like evaluating expressions and other human responses from witnesses; dreaded technological problems; loss of opportunity to negotiate on the court room steps; and a potential lack of courtroom gravity.
Witness cross-examination is particularly problematic, according to the Nuffield Family Justice Observatory report. A virtual court is “not usually as effective a forum for examination of witnesses for a host of reasons”, says Harriet Townsend of Cornerstone Barristers. Two factors she highlights are that “the witness may be alone and unsupported/ guided/controlled by their own advocate”; and that “it is harder for the tribunal to interpret the demeanour of the witness and therefore to judge any dispute of fact”.
As the impact of Covid-19 continues, a body of information is building up about how to run online cases better. HM Courts and Tribunals Service is also working on improving the technical aspects of remote hearings, so that these can continue in the future.
Despite these limitations, there is widespread agreement that when it comes to procedural hearings and testimony of expert witnesses, both are working well enough online to make them worth continuing in the future.
However in person hearings are still likely to be necessary where, for example, the issues are particularly sensitive, or where there are parties with a disability or cognitive impairment or where an intermediary or interpreter is required.
The future of digital courts is unlikely to be a straight either-or scenario. Gerard Forlin QC of Cornerstone Barrister suggests a third route will arise:
“There may be hearings in the future that are hybrid — part live, part Zoom and possibly with some expert and technical witnesses appearing by Zoom.”
Whatever the outcome of this current lockdown 2.0, it would seem virtual justice in some guise, is here to stay.
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Gearoidin has worked in the legal services and legal technology and information sector for over 10 years, both as a practising solicitor and more recently as an Account Manager at LexisNexis.
Gearoidin works with individuals in both legal and financial services to plan and implement technological change programmes, helping organisations achieve strategic business goals.
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