Danger that remote hearings become secret hearings – barrister

Speaking at the recent Irish Rule of Law International webinar on commercial law, Belfast barrister Michael Humphreys QC said that technology in the courts in Belfast has issues of quality, of resourcing, and of privacy. 

Speaking on the ‘Technology and the courts in the age of COVID' paper, written by Anna Rowan BL, Humphreys said that we live in a time when the rule of law is under explicit threat, and not just in jurisdictions that we may condescendingly refer to as ‘developing’ but also in this part of the world.

Challenges

He said the virus has presented particular challenges in terms of the administration of justice, and in delivering fair and cost-effective dispute resolution services.

“Our paradigm version of dispute resolution is to gather quite a lot of people together in one place, from a variety of backgrounds, to perhaps crowd them all into one large hall outside a bevy of courtrooms and try and thrash out solutions, or indeed to enter the courtroom environment and spent many hours, many days, and often many weeks, trying to find an answer to their problems.

“That paradigm is no longer either safe or suitable to the administration of justice,” Humphreys said.

There are ancillary challenges of delay, of vulnerable litigants and witnesses, and of the need to maintain open justice, as well as the economic harm to practitioners, he said.

While technology has been identified as part of the solution, it also throws up problems with which lawyers are becoming increasingly familiar.

'Paper-light' courts

Fast-forward has been pressed on the momentum towards paper-light courts at the appellate level, and at shorter hearings unlikely to involve a great deal of witnesses. 

This has involved a judge and member of court staff in the courtroom with other participants linked in by video.

That particular set-up will be a permanent part of the legal landscape, but how far it dominates remains to be seen, he said

The experience has been mixed, working well in some cases and in others being deeply unsatisfactory and unfit for purpose.

The technology in the North simply isn’t good enough, he believes, with video, audio, and user-friendliness all at a sub-optimal level.

Practitioners in the North have also looked with interest at the Republic’s 2020 act, which gives judges power to approve software for remote hearings.

“There simply isn’t enough money being made available to improve the technology, and the ability of lawyers to use the technology,” he said.

Reluctant to engage

However, some practitioners, young and old, are reluctant to engage with the software and that mind-set needs to change.

There is also a digital disadvantage in some areas of the North, where the broadband isn’t sufficient to sustain remote access to courts

Funnelling cases into alternative forms of dispute resolution, which don’t necessarily entail the physical courtroom, could be part of a solution.

Certain types of cases, such as appeals, applications, preliminary issues, and those which don’t involve extensive oral evidence generally, can be dealt with remotely.

The downside of remote hearings is that lack of ability by the court to engage with counsel in the normal fashion. 

A judge taking a point and going ‘off-script’ with it becomes much more difficult in a remote environment.

Natural flow

If judges wait until the end of submissions before asking questions, it doesn’t have the same natural flow or quality of impact, he said.

If judges are in different places, it won’t be as easy for them to discuss cases during an interval, he suggested.

There must be a role for physical hearings, albeit slimmed-down, with a collaborative approach on agreeing what evidence is necessary on a particular point, rather than the traditional route of calling as many witnesses as possible, he said.

With slimmed-down hearings, interested parties can access the case by a remote link.

Solemnity

Michael Humphreys also questioned whether remote hearings engender the same level of solemnity and importance as an actual court appearance.

The maintenance of open justice is also a fundamental challenge in remote hearings, he pointed out, if journalists and members of the public don’t have free access.

“There is a danger of remote hearings becoming secret hearings, with a lack of awareness of when they are taking place,” Michael Humphreys QC said.

Access must be facilitated and transcripts of hearings must be made available.

He pointed to the difference between ‘real-time transparency’ and ‘information transparency’.

“The move towards online courts may actually adversely impact the former, in that fewer people will be aware of court hearings or be in attendance at them.

“The latter may well be improved, because of the provision of transcripts, and because journalists will want to dive in and out of cases and find out more about what happened in the course of a hearing.

“So actually, one may balance out the other.”

Vulnerable litigants

He continued that vulnerable litigants are just as likely to be encountered in commercial cases, as in criminal or family law.

Relinquishing the comfort of Lever-Arch files, with post-it notes on relevant points, may lead to more difficulties for witnesses.

It’s important that the courts responde with good case management, if these issues arise, he said. 

However, vulnerable witnesses might actually benefit from not having to attend court, he pointed out.

Secure online data storage of documents must ensure that boxes aren’t accessible to the other party in a case.

Unauthorised attendance at remote in-camera hearings will also be more difficult to deal with than at physical hearings, he pointed out.

And potentially, screen grabbing and the unauthorised broadcast of proceedings, will also be difficult to police, and needs to be part of a big-picture approach to remote case management.

Most jurisdictions accept that physical hearings are required for serious crimes, he said.

Blended system

“We’re moving towards the reality that we need a blended system of remote and physical hearings. That distinction, as to when a remote hearing is appropriate, as opposed to a physical one, needs to be based on a comprehensive list of priorities.” 

However, practitioners need to be realistic about when remote hearings can suffice, in less contentious or less demanding forms of litigation.

Collaboration is required between everyone involved in the justice system, to ensure good decisions are made well in advance of trials, he concluded, going back to the first principle of delivering cost-effective and fair dispute resolution processes.

“The role of practitioners needs to be reduced and the role of technology enhanced, so that decisions can be made in a totally different way, taking away a lot of the adversarial part of our system in delivering justice in the digital age,” he said.