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Bar Councils' stark warning on 'inferior' remote courts

The four regional Bar Councils have united to warn against widespread remote hearings, despite the accelerated rate of virtual sittings in the wake of the pandemic.

The Bar of Ireland, the Bar Council of England and Wales, the Bar Council of Northern Ireland and the Faculty of Advocates of Scotland have issued a joint statement, saying that while they support the use of technology, remote hearings are only suitable for short or uncontroversial procedural business.

“We all take the view that careful consideration is needed before any decision is taken to employ remote hearings more widely, once COVID-19 is behind us,” the statement continues.

Disadvantages

“There are, in our mutual experience, multiple and multi-faceted disadvantages with such hearings, when compared to the usual, in-person hearings that have delivered justice for centuries,” it says.

The statement highlights in particular that:

• Judicial interaction is different and less satisfactory in remote hearings from that experienced in ‘real life’, and hearings can be less effective at isolating issues and allowing argument to be developed,

• Witness management, especially in cross-examination, is far less satisfactory when conducted remotely and may have an adverse impact on the quality of the evidence given,
• Remote hearings present very considerable challenges to effective advocacy in cases involving evidence or complex narrative submissions. The very real, but often intangible, benefits of the human interaction inherent in in-person hearings cannot be ignored. The universal sentiment across the four Bars is that remote hearings deliver a markedly inferior experience.
• The diverse and complex needs of clients must be protected and their participation must be safeguarded. By its nature, a remote and automated system will only degrade the valuable human interaction that should be at the heart of meaningful and open access to justice.
• There are also wider concerns arising from remote working. The training experience has been markedly affected by the predominance of remote working, and the accompanying isolation – in marked contrast to the usual collegiality of the respective Bars – is also having a negative impact on wellbeing.

The unanimous stance of the four Bar Council is that they are supportive of the continuing use of technology in our courts.

Backlogs

They are supportive of remote hearings becoming the default position for short or uncontroversial procedural business.

Remote hearings will be vital in tackling accrued backlogs in each of the four jurisdictions.

But, for any hearing that is potentially dispositive of all or part of a case, the default position should be ‘in-person’ hearings.

Remote hearings should be available as an option in such cases where all parties (including the court) agree that proceeding in that way would be appropriate.