Before the pandemic, the Courts and Tribunal Services (HMCTS) was implementing a digitisation programme that cost around £1 billion. The process was slow and incremental, with video courts rolled out gradually and other elements – accessibility, technical support – to be addressed later.
But with Covid-19 forcing as many people out of physical buildings as possible, hearings have quickly moved online all at once. All jury and non-urgent hearings have been suspended but other hearings, such as cases in the Supreme Court, Civil Court and a handful of others are going ahead on Skype or Kinly CVP – the government’s video conferencing software for use in courts. Today, 90 percent of all hearings which are still taking place are taking place online.
“If I’d stood up and asked for a Skype hearing months ago, I’d be laughed out of court,” says Simon Cox, a barrister at Doughty Street Chambers. “Now, everybody’s Zooming with their relatives, and we won’t go back. Whether that’s good or bad, that’s the way it is.” In the UK, this isn’t a completely new state of affairs – the first direct prison-court video link was established in 1992, between Norwich Prison and Great Yarmouth Magistrates Court. Since then, video hearings and remote hearings have steadily increased in usage, often without sufficient scrutiny or protocols in place.
“There’s a human interest that justice systems are experienced as fair,” says Cox. “If I was the defendant in a case that was a matter of life and death, I would struggle to think that it was fair if someone on the other end of a telephone line decided I was lying.” Cuts to legal aid and a decade of austerity, in combination with a wave of Covid-19 related arrests and litigation, could overwhelm an already stressed system. The number of outstanding Crown cases at the end of 2019 was over 39,000. A bar council survey in the UK found that 31 % of those surveyed believe that they may not be in practice in three months.
For the most vulnerable, remote justice may not feel like justice at all. A report commissioned by the EHRC found that people with disabilities and mental health conditions, who are already over-represented in the UK’s justice system, are already finding the quality of their court hearings impeded by the switch to video court hearings in the last month. Researchers at the Institute for Government believe that waiting times for court hearings – already extensive – could increase by more than 70 percent in the event of a six-month lockdown.
Remote hearings tend to disproportionately negatively affect those who are already the most vulnerable. In many cases, telephone hearings meant that clients felt less able to share information with their lawyers. In a 2017 report for Transform Justice, Penelope Gibbs found that appearing on video can increase defendants’ feelings of isolation and stress. People who have disabilities, mental health problems or have support needs that may not be immediately visible might struggle to fully engage in proceedings. Other research has also found that the use of video court systems roughly doubles the chances of an applicant being denied asylum.
Open justice, another tenet of the UK’s legal system, could also be undermined. Efforts to make sure that this doesn’t happen are in place – the Coronavirus Act, which was passed late in March, also passed provisions for live streaming certain hearings on Youtube, and the Labour Party have proposed that this continues even after the pandemic subsides. While journalists and members of the public should be able to dial into a court hearing, it’s not always smooth sailing. One example of this is Julian Assange’s extradition trial, which was supposed to take place at the end of April. Reporters and observers dialling into the proceedings found that the technology was difficult to use, and glitchy enough to cause several delays.
Technical issues will inevitably arise – issues with corrupted recordings, worries about GDPR, access to the right kind of technology (Android vs iPhone) – and may continue to stymy efforts to make remote court hearings feel like the real thing. The first video court hearing of this crisis was a family law case held over Skype, which Celia Kitzinger documented at the Transparency Project.
As a result of bandwidth issues, everyone on the call except for the person speaking had to turn off their cameras. This meant “Sarah,” the family member of the person on trial, was often spoken about in the third person, almost like she wasn’t there. Glitches and issues with the technology – such as an audio lag, or difficulty finding documents in email while trying to speak on Skype – nearly overshadowed the substance of the case itself, which was a deeply emotive issue that had taken several years to even reach the court.
Out of the lawyers and judges who have already begun to use these remote hearing tools, many have indicated that this rapid move online has been relatively smooth. Digitisation doesn’t have to be bad – these changes could make elements of the legal system more efficient, by reducing the need to apply in person for injunctions, for example. The legal group Justice has suggested that a digital jury tool could start to unfreeze parts of the justice system, for now, making it possible for some cases to be heard sooner.
But there are growing fears that any austerity package which follows the lockdown could see a courts system which has moved online temporarily forced to stay that way. Education Secretary Gavin Williamson indicated that this was on the cards. Communities who are already less likely to have access to technology – or to the kind of internet connection where a six-hour video call can be sustained – may be told that this is the only way they will have a ‘day in court.’
There needs to be sufficient safeguards and monitoring protocols in place to ensure that people who need justice don’t become collateral, or that the small gains made from digitisation don’t outweigh the very real harm that a mostly digital justice system could create.
The courtroom isn’t necessarily a welcoming environment but, as Cox points out, it’s crucial to the justice system as a whole. “Some of the more interesting hearings that I’ve done – you know, the Home Office has made a submission and everyone’s gasped, or there was a whisper at the end of a statement. You don’t want people to be shouting but you do want a whisper,” says Cox. “It’s a reminder that you’re part of a community that you’re accountable to.”