Even before the lockdown announced by the Prime Minister on Monday 23 March we had indicated that the gathering emergency would require courts in all jurisdictions to use technology to conduct hearings in circumstances that had not been usual before. Both the Courts and Tribunals have risen to that challenge in a remarkable way. We took the view that, rather than issuing detailed national guidance, the better course was to leave the decisionmaking as to which cases should be conducted remotely to judges with the assistance of the DFJs and DCJs.
National guidance is a blunt instrument and cannot take any account of the strengths or weaknesses of local resources (judicial, staff and technological) and other important factors which vary from court to court and from case to case.
In the three weeks that have now passed we have all learned a good deal about remote working. That expression encompasses a number of different mechanisms. The first and best option is for the judge to work in one of the courts that remains open or staffed and to conduct a hearing
with some or all of the participants attending by phone, video or an internet platform. Sometimes, hearings are conducted from home. Experience varies but dealing with anything not intrinsically simple by phone appears to be less satisfactory than by video or, for example, Skype but the way in which the participants conduct themselves is an important factor.
Much of what has been learned is positive. There have been many reports of technically effective processes and we suspect that we have all surprised ourselves by the progress that has been made in such a short time. From next week the bespoke HMCTS video hearing facility will have a greatly increased capacity; this system is expected to offer better quality all round than Skype and so should enhance yet further our ability to conduct remote hearings. The overarching criterion is that whatever mechanism is used to conduct a hearing must be in the interests of justice, that issue being assessed by reference to the unusual circumstances that prevail and the unhappy alternative if a hearing is adjourned. Every hearing we conduct in whatever form must provide a fair hearing.
Alongside these positive reports, there are reports of negative experiences either about the hearing itself or its fairness. Last week, there were reports that using technology to conduct hearings was unusually tiring, particularly those which were relatively long. Over the course of the last few days we have been informed of a growing problem of participants not respecting the reality that although they were not physically present in a court room, they were taking part in court proceedings with all the constraints on behaviour that implies. There have been instances of judges being shouted at by litigants. There have reports of problems with the availability of papers.
It is clear to us that we have reached a stage when it is right to take stock of our collective experience of remote working to date and review whether any changes should be made. We are grateful to those many of you who have written to us and to the SPJ, and especially to the Associations who are urgently gathering descriptions of your experiences.
We would encourage all judges and leadership judges to recognise that doing as much as possible remotely does not mean, and cannot mean, trying to do everything remotely. It is important that the listing of cases, which is a matter for judges, takes account of the reality that long hours in front of a screen or on the phone concentrating hard are more tiring than sitting in a court room with all the participants present. That is an experience reported by teachers who gave remote lessons at the end of the term. No judge should be expected to endure abuse on the phone or laptop. That itself may show that some types of cases have been attempted which are not suitable for hearing in some ways remotely.
We hope to provide a short script to be read at the beginning of remote hearings. We will also ask our IT people to explore whether there is a facility for people who misbehave to be muted. We have found the collective response of the judiciary to dealing with cases using technology
remarkable, but we would observe that not all types of case can be dealt with remotely. There may be real difficulties in taking hotly contested evidence by telephone or laptop. Of course, urgent cases must be dealt with one way or another. There may be others where the parties are keen to proceed and are untroubled by the use of technology or where that is the view of the judge. But it has become clear that there are some court centres where, in comparison to the majority, far more ambitious remote listing is taking place.
We offer the following observations:
The Lord Burnett of Maldon, Lord Chief Justice of England and Wales
Sir Terence Etherton, Master of the Rolls
Sir Andrew McFarlane, President of the Family Division