Will virtual hearings be an effective measure during the pandemic?
By: Daniel Mardle
Tags: Criminal Justice, Courts, Virtual Trials, Legal System

When the coronavirus pandemic struck and the nation went into lockdown back in March one of the biggest concerns in the legal profession was about the effect it would have on the criminal justice system in the UK.

At that time there were 37,500 Crown Court cases waiting to be tried and over 400,000 in the Magistrates’ Court.

An idea that HM Courts & Tribunals Service (HMCTS) found themselves contemplating in the early months of lockdown was for the courts to hold virtual hearings with all participants taking part remotely from separate locations, effectively in a Skype or Zoom conference call.

The Coronavirus Act 2020 expanded the availability of video and audio links in criminal court proceedings allowing the courts the ability to function and remain open to the public without the need of participants to appear in person.

But the concept of remote hearings isn’t quite so new. Professor Richard Susskind, IT Advisor to the Lord Chief Justice since 1998 and author of the 2019 book Online Courts and the Future of Justice, has long been calling for courts to shift online, claiming it would make the service more accessible and affordable.

In fact UK courts have been gradually adopting digital technology over the last several years, after Sir Brian Leveson’s Review of Efficiency in Criminal Proceedings in 2015 which determined that the process of everyone gathering together in the same place was “inefficient and expensive”, and made the case for remote hearings using up-to-date technology to enable some, but not all, aspects of criminal cases to be handled without the need for all participants in the same place.

The idea has since spread across the board, from video links for the convicted in the Court of Appeal, to live-streaming from the Supreme Court, established in 2015.

The UK Supreme Court would hold its first fully-fledged remote hearing on 24 March 2020, with Justices and lawyers participating from home, and has carried them out regularly since, while the High Court would do likewise on Zoom on 27 March 2020.

The court system in England and Wales was able to react to lockdown in this way thanks to a £1 billion technological reform programme launched in 2016 including a video-conferencing tool called the Cloud Video Platform (CVP) which allowed for a dedicated private conference area enabling lawyers to speak to clients without visiting them in prison, and was part of a plan to make the court system run more efficiently and be more cost-effective.

Yet just because a virtual hearing is possible, does it mean it’s the best choice in the interests of justice?

Alistair Webster QC, from Lincoln House Chambers, thinks the prospect of virtual court procedures which have a limited focus, such as the Court of Appeal hearings he had been doing from home where few parties are involved and nothing vital like physical evidence needs to be presented, is a sound one, that saves time and expense, providing of course that everything is in working order.

“It’s definitely been a positive move, and it has demonstrated that the various hearings which can be done via video, which don’t require everyone coming to court to attend…. As long as the internet works properly it’s actually sensible. It should reduce costs, reduce traveling time…. as far as I’m concerned it’s worked very well.”

The practice may be viable in matters like civil cases, preliminary hearings or hearings for minor offences like motoring offences. In one such case in Swindon a man who couldn’t attend his sentencing hearing offered to be charged remotely by phoning the court and joining the cloud video link to appear on screen in court, pleaded guilty to the charge he was facing for drink driving and was subsequently issued with the appropriate fine and penalties.

But it’s probably not much of a surprise that when it came to applying this kind of practice to jury trials, the feedback from many in the profession was a resoundingly negative one.

The Lord Chief Justice, Lord Burnett of Maldon, was one of the most prominent among the voices of opposition.

Speaking to BBC Radio 4’s Law in Action in June Lord Burnett said “That is something which has been discussed in London, but so far, it hasn’t secured a great deal of enthusiastic support.

“Not least because it seemed to make the jury spectators rather than participants in a trial; and judges and lawyers are undoubtedly concerned, as I don’t doubt they’re concerned in Scotland too, about a lack of engagement between the jury and the advocates; and the jury and the judge; and the jury and the defendant and witnesses.”

The law reform group Justice actually tried putting the idea into practice by holding a series of mock trials in April and May with assistance from real barristers and a judge, with volunteers playing the jurors, witnesses and defendants, all of whom participated remotely.

The experiment was deemed a success, despite a few technical hitches like taking up to two hours to make sure all jurors were properly connected.

Yet the idea wasn’t warmly welcomed by solicitors and barristers either.

Mr Webster said they were ‘completely unrealistic’ and could result in less convictions if put into practice.

“There’s been a failure to understand, on the part of campaigners particularly in relation to sex cases, that evidence by video recordings and video link just doesn’t have the same impact upon juries as someone giving evidence in front of them.”

“It’s just not a practical way of doing it.”

Andrew Thomas QC, also from Lincoln House Chambers, was able to undertake preliminary court hearings and conferences with clients from his own home during the lockdown months, yet he too strongly opposed the idea of virtual jury trials believing it wouldn’t be an ideal situation when the jurors can’t physically see or take in the evidence being presented.

“I don’t think that it would be possible to reach safe verdicts by conducting trials where the jury were not present in the same room at the same time that the evidence was being given.”

He further cited the potential issue of outside influences which could serve as a distraction, yet conceded it may be extremely difficult to come up with an alternative arrangement under the current circumstances when safety for everyone in the court is paramount.

“The problems that we’ve got, [and the] problems with Covid-19, it’s very difficult to find any way around them. To do a trial with a jury involves a lot of people in a room together for long periods of time in an enclosed space, and it’s very difficult to find a way around that.”

Fellow barrister Huw Edwards, from Exchange Chambers in Manchester, shared the sentiment that having all the jurors in separate locations could leave them prone to distraction and pointed out that one thing judges like to do when sitting in court is to watch the jury and see what they’re doing and determine who may or may not be taking the case that seriously or even who may or may not be paying attention.

Something they can’t do when all parties aren’t in the same room.

Rachel Fletcher, a partner and criminal defence solicitor at Slater Heelis in Manchester, said a virtual trial prevents participants who aren’t in the room with the defendant from really looking them in the eye and getting a real feel for them, the situation or the evidence and doesn’t believe they’re a viable way forward at all.

“A trial is a very serious and sombre occasion. Somebody’s life is at stake. If they’re convicted they might go to prison.

“Similarly, the victims, they want to look the perpetrator in the eye sometimes.

“Juries just cannot get a feel for it. I would be very, very concerned about juries’ ability to focus. It’s not the same.

“It can’t happen. It cannot happen.”

But while the idea for virtual trials doesn’t appear to be gaining any kind of ground, virtual hearings for other types of cases could be here to stay for the foreseeable future.

They might appear to work better in some legal contexts rather than others, and the concern among legal professionals is that they not lower standards in criminal cases, especially where charges and a verdict can have a profound effect on the lives of defendants.

Pre-liminary hearings to determine whether an accused in a criminal case should be detained and go to trial have been taking place remotely since at least 2017.

A research report from the University of Surrey, published in May 2020, determined several features of virtual hearings which might reduce the quality of the process and the defendants rights.

These included the loss, or hindrance, of non-verbal communication between the defendant and their advocate which might not translate as well on the screen, the possibility that defence via video link might be less effective, and the method of video court being seen as more impersonal.

All qualities that are seen as vital in a criminal trial where one’s future is at stake.

Magistrates courts have been able to adapt to the idea since they handle first appearances in court along with hearings for low level offences and don’t require a jury, and by law anyone charged with a crime and denied police bail must be granted a remand hearing in the presence of a judge within 24 hours.

But now the defendant ‘attends’ court in the police station via the CVP.

Of course it’s essential for everyone’s interest, not least the defendants, that everything works without any problems, as it would be very remiss for one to have difficulty accessing their own hearing.

Yet there exists the possibility that defendants may find it difficult to engage in such an impersonal procedure, particularly if having to correspond with a solicitor they haven’t been able to meet with (concerns about safety in police stations led to new protocol in April requiring solicitors to meet their clients, even new ones, by telephone), before sitting before a judge on a screen who will decide their fate. And that’s without taking into account other mitigating factors like disability or even something more basic like the need for a translator.

“Obviously if you’re not able to see somebody face to face that’s going to adversely affect communication with some clients,” said Alex Preston, a criminal defence solicitor from Olliers Solicitors.

The toll on those being detained on remand can be significant, as Ms Preston was keen to point out; “It’s very tough. Most of them are in their cells 23 hours a day with very little association or time out for themselves not doing jobs, not doing education in the way that they were before.”

Ms Preston admitted to not being a fan of virtual hearings in general.

“If it’s purely a procedural hearing where the defendant isn’t present, they can work.

“But if the defendant is present entering a plea [or] being sentenced… virtual hearings separate them from the process, so it’s much more difficult to take instructions, and I worry about that particularly with clients who have got vulnerabilities.”

A survey of virtual court users conducted by the charity Transform Justice in 2017 found 58% felt the video link had a negative effect on a defendant’s ability to participate in the hearing while 72% felt the video link had a negative effect on the defendant’s ability to communicate with their practitioner, the judge or other participants.

In May 2020 the non-governmental organization Fair Trials surveyed vital figures working in the criminal justice system such as solicitors, barristers, judges, magistrates, police officers and CPS staff to gauge their views on how Covid-19 had impacted fair trial rights since lockdown began.

The majority of the 89 responses received were from defence lawyers, and the overall results presented were concerning.

In light of the changes from the norm that were taking place, like further prolonged periods of time in custody and solicitors not being able to meet with clients face to face which, as already said, could impact the help they provide, the shared concern that became apparent is the fear of defendant’s rights being overlooked.

It would seem therefore that remote hearings have become seen as a necessity as they might be the only sure way to deliver at least some form of timely and open justice, on some fronts if not all.

A report by Colette Allen, from the Legal Policy and Research Unit at the International Bar Association said the UK won’t be returning ‘back to normal’ when the pandemic is over as remote hearings were already becoming a regular staple in the administration of justice, but it hinges on the majority who might be apprehensive about sticking with the concept to dispel any doubts or preconceptions they might have.

But even though the idea for virtual jury trials hasn’t been well received and appears to have disappeared from the conversation, the biggest drawback and knock-on effect will be the continued postponement of jury trials until a more suitable time, or a more appropriate and accommodating venue can be found.

For instance, Mr Webster had recently arranged for a trial involving 11 defendants to begin in May 2021 but admitted it wouldn’t be possible to proceed with if social distancing were still continuing by then. Instead they might have to split the trial into tranches and prosecute that way, which would only prolong the process.

So the practice of the other kinds of virtual hearings described above could serve as a partial remedy to some of the problems the legal system is currently facing, though not a full one.

Yet when I visited Manchester Magistrates Court in October there were no virtual hearings taking place, and the usher who worked there couldn’t recall any ever having taken place there, which would perhaps imply they had been trying to carry on as normal all this time, albeit under strict conditions.

But given that a week later, when nine cases of coronavirus were confirmed at Manchester Magistrates Court and criminal cases were set to continue, even after Manchester Crown Court had been temporarily closed again in August following the confirmation of several cases among staff, then they certainly would seem like a viable option at present even if courts are only able to hold a very small number at a time, meaning the backlog of cases will likely not be reduced for a very long time to come.

“All of the pre-trial work in the crown court can be done remotely in my view, or certainly a lot of it can be” Mr Webster said, referring to the kind of matters that only require judges and lawyers to correspond with each other.

“Those are definite steps forward, and they’re welcome.”