Virtual courts - here to stay?

Posted: 12 August 2020

Legal professionals were effectively thrown into the deep end when it came to conducting hearings remotely. Lockdown has caused an astonishing backlog of half a million cases in England and Wales1, so to avoid adding to this any more than necessary, the courts, law firms and chambers moved quickly into a virtual environment. Like most, this was smoother than originally anticipated but did not come without its challenges, many of which were explored in the recent Civil Justice Council (CJC) report.

We’ve all been the victim of technological failures, probably never more so than in the last five months – and legal hearings are no exception. From slow rural broadband, system glitches, privacy and data security concerns.

The right to a fair trial is engrained as a fundamental principle of the rule of law and a foundation of a democratic society. There are many reasons why it was the right decision to move the litigation process online, even for the duration of lockdown when physical trials cannot go ahead. Ensuring that individuals were able to have access to justice in a timely manner is vital to both individuals and society. However, there have been unintended consequences to this that could be deemed ‘unfair’.

This is particularly pertinent in complex cases or those involving vulnerable people. Thankfully the judiciary seem to be making sensible decisions in this area with The Honourable Mr. Justice Johnson in SC v Southampton NHS Foundation Trust noting that a hearing could be held remotely, however having regard to the “likely length of the hearing, the nature of the issues, the volume of written material and the complexity of the lay and expert evidence, a remote hearing would be undesirable”. 

In the UK there are almost two million people living with sight loss2 which presents a clear challenge to attendance at a video hearing.  Those living with other physical disabilities may also lack access to the adaptive technologies which are needed to attend and participate in remote hearings.

Attending court whether remotely or not is an intimidating experience for most. Some people may feel under pressure to say that they understand and agree with what’s going on during a hearing, but in reality don’t fully appreciate what’s happening. Sometimes only when the written judgement is provided, the outcome is clear to them. This can be not only due to mental health issues but also educational disadvantage and a host of other vulnerabilities that are prevalent in the UK. The National Literacy Trust reported that in 2019 5.1 million adults in the UK are functionally illiterate. Asking thoseindividuals to keep up with the pace of a hearing and referring to documents without being able to check and explain the relevant points may be putting them at a serious disadvantage.

Those whose first language is not English may find themselves more disadvantaged over the telephone without those other non-verbal cues that can be very helpful in understanding proceedings.

In addition, of all households in the UK in 2019, 7% did not have access to the internet3. And it’s been suggested that remote hearings has a disproportionate effect on those with lower incomes4. Assumptions are made that people not only have internet access but that they have more than one internet connected device. This is important as litigants may not be able to give their legal representative instructions or to ask for clarification via text or email if the only device they have is being utilised to broadcast or dial in to the hearing itself.

Preparation is key to the success of remote hearings5. Clear guidance is needed to homogenise the process across those regional variations that were necessary in the beginning of the Covid-19 changes.

Virtual court technology is welcome to supplement the physical court not to replace it, so it’s fair to say that we won’t see the back of the courts as we knew them before. However this has provided an excellent opportunity for us to test the waters of remote hearings and it’s likely that some of the processes will move to a more digital approach in what has been a vastly speeded up modernisation of the court system. Those procedural hearings where you don’t need the client to be present are a great example of what could remain virtual. This would have the added bonus of reducing waiting times for more complex matters as well as providing options to better manage the work life balance of legal professionals.

It is however critical for all professionals involved to ensure that the system does not evolve past its most vulnerable users. We all need to be alive to a client who may need extra support to ensure they remain an active participant in their own quest for justice.

Sian Stanton

Business Developer

Allianz Legal Protection