Access to justice: pandemic forces courts to incorporate remote technology

Joanne HarrisThursday 21 January 2021

While commercial and civil practitioners are generally happy with their roll-out, in the criminal courts remote hearings are less common and the challenges of handling cases while protecting those involved from Covid-19 are proving tricky to overcome.

The requirement for criminal defendants to appear in person, while managing social distancing, is a challenge that few jurisdictions have successfully managed. An IBA Litigation Committee report produced in June 2020 showed the range of measures taken around the world. While most countries set rules requiring ‘urgent’ criminal hearings to go ahead, delays are rife.

In England and Wales, the tension between keeping trials running and keeping the courts ‘Covid-secure’ is at breaking point. The police have withdrawn from using the courts’ ‘Cloud Video Platform’ for remand hearings from police stations. Meanwhile, despite the Lord Chief Justice, Lord Burnett of Maldon, saying in early January that the facilitation of remote attendance was the ‘default position’, some courts have issued statements saying this is not possible.

In mid-January, the Law Society of England and Wales called for urgent action to ensure court users’ safety, and a move to video by default for all Crown and magistrates’ court hearings. In a statement also published in mid-January, the Criminal Bar Association said failure to move to more remote hearings and minimising in-person appearances would mean ‘there will come a point when the courts become too unsafe to continue’.

A question remains, however, as to whether defendants’ human rights are infringed if they do appear virtually. A report produced by the United States-based Brennan Center for Justice in September highlighted a study which found that higher bond amounts were set for defendants in criminal bail hearings conducted virtually, compared to in-person.

Research into immigration courts, meanwhile, found detainees were more likely to be deported when their hearings occurred via video conference.

On the other hand, the report also found that video hearings could improve access to justice for those in remote areas, or who lacked the time or resources to travel to court.

Jane Anderson, Co-Vice-Chair of the IBA Access to Justice and Legal Aid Committee, who is based in Australia, says a combination of investment in infrastructure and training and the adoption of protocols and rules could well help alleviate the pressure on criminal justice systems.

Anderson says of holding criminal proceedings remotely, ‘if you’re a judge that’s prosecuting, you’ve often got a lot of parties who you’re having to control and direct in an environment where they’re not all in the same place. That poses challenges but they’re not insurmountable.’

She agrees that concerns that a witness or defendant’s credibility might be reduced if they are not present in person are valid, but adds that ‘as our technology improves and our connectivity improves there’s potential for these concerns to be mitigated. It’s important to look at these new ways of conducting hearings and trials and see how they might be appropriate in the future. It might not be an either/or.’

‘Let’s see how we can use this positively so that access to justice isn’t denied but is enhanced and widened,’ says Anderson, who suggests the legal profession can lead in this.

The Brennan Center report says more research on the potential impact of remote technology on outcomes in a diverse range of cases, and consultation with a broad range of stakeholders, was necessary to help courts develop policies and protocols.

In contrast to the picture from the criminal world, remote justice in civil cases is welcomed.

‘Commercial law has had it pretty easy. The switch to remote hearings has been ridiculously smooth,’ acknowledges Tim Strong, Co-Chair of the IBA Litigation Committee and a partner at Taylor Wessing.

Strong says that in England and Wales the commercial courts were running hearings and trials over a range of video platforms within a month of the first UK lockdown in March.

‘I’ve not had a conversation with anyone who’ve said that they’re worried that the courts aren’t doing justice to cases,’ Strong adds.

In the US, many civil trials have the additional burden of requiring a jury to be present, making remote trials more challenging.

‘Most of the civil jury trials that have been done remotely are where there have been only two parties and a limited number of witnesses and a limited number of issues. For cases that involve any complexity at all most lawyers would want to be in court, and certainly most judges prefer that as well,’ says Frederick Acomb, Senior Vice-Chair of the IBA Litigation Committee and a partner at Miller Canfield.

However, US pre-trial hearings have gone virtual and have been welcomed by practitioners.

‘It gives much more of a feeling that things are happening, you’re participating and you’re getting your issues across,’ says Chris Helmer, Senior Vice-Chair of the IBA Litigation Committee and a partner at Miller Nash Graham & Dunn.

Despite these challenges, practitioners believe the adoption of video technology to keep the courts running during the pandemic will have a lasting effect – if not for substantive trials, at least for shorter hearings and case management globally.

‘There’s a clear need to simplify the way justice is rendered and also in an easy way to make the process quicker, safer and easier to understand for the parties,’ concludes Jacques Bouyssou, Vice-Chair of the IBA Litigation Committee and a partner at Alerion Avocats.