In the criminal courts

Christopher Convey

The COVID-19 pandemic and consequent closure of much of the court estate has forced almost overnight changes upon the criminal courts and the advocates who appear before them. Across the Bar new procedures have been accommodated and new working practices adopted.

While there has been a wholehearted response by practitioners to the new requirements, the situation is not always ideal and there are reasons for counsel to pause and consider their ethical obligations and whether they can comply with them when undertaking remote hearings.

You must be careful to ensure that you comply with the Core Duties identified in the Code of Conduct at Part 2B of the BSB Handbook. While observing your duty to the court in the administration of justice (CD1), you must at all times act in the best interests of your client (CD2). This will include considering whether a remote hearing is appropriate in the circumstances and, if so, how such a hearing should be conducted.

Unless your client can participate effectively and communicate with you, a remote hearing may not be appropriate.

Is a remote hearing appropriate?

While there is a presumption of digital appearance for adult defendants in the Crown court, you must nevertheless, at the outset, consider whether that presumption should apply in the case of your client.

When appearing in a case in which a live-link direction is being considered you should carefully review the content of Criminal Practice Direction I, General Matters 3N: Use of live link and telephone facilities ([2017] EWCA Crim 30, Lord Thomas CJ and [2018] EWCA Crim 1760, Lord Burnett CJ). While it is the duty of the court to make use of technology to actively to manage the case (3N.2), courts should conduct hearings by live link or telephone only where it is lawful and in the interests of justice to do so (3N.1). There is a duty to alert the court to any reason why live links or telephones should not be used and that duty applies to both the prosecution and the defence (3N.3).

There may be circumstances in which the court should not require the use of live link or telephone facilities despite their being otherwise appropriate at a pre-trial hearing (3N.5), including ‘any case in which the defendant’s effective participation cannot be achieved’ by such means. Stated examples of where that may be the case include where the defendant has a disorder or disability, has communication needs to which the use of a live link or telephone is inimical or where interpretation is required but cannot be effectively provided remotely (3N.6).

It may not be appropriate for a client with mental health issues, is otherwise vulnerable or requires the assistance of an intermediary to be dealt with by way of a remote hearing.

Effective participation and communication

Effective communication with your client before and during a remote hearing remains essential. You must be able to ensure that your client is aware of the nature of the hearing, what is due to happen, what their role in the hearing is and what their rights are. You must be able to obtain their instructions. You must assess whether the client can effectively participate in the hearing, including receiving and giving information to the court. You will need to assess if an interpreter is required and whether that can be given effect to at a remote hearing. This may be more straightforward in a court using the cloud video platform, but may be difficult in other circumstances. At the hearing itself you should ensure that your client can communicate with you and, in the case of a live link, see you ‘clearly’ (3N.4). It is important that your client is able to communicate with you when they need to.

Unless your client can participate effectively and communicate with you, a remote hearing may not be appropriate.

Maintaining client confidentially

One of your core duties is to keep the affairs of each client confidential (CD6).

The Inns of Court College of Advocacy’s Principles for Remote Advocacy notes at Principle 8 that taking instructions from a client in custody during an online hearing in the Crown court ‘is a serious problem’, with communication and confidentiality issues that have not yet been satisfactorily resolved.

Where you need to take instructions remotely during a hearing, you are advised to seek the court’s permission to leave the online hearing. You should sign out of the meeting and conduct a separate private meeting with your client. You should consider arranging in advance a co-existing but separate and secure telephone or email line of communication with your client. Where your client is in custody, and the need to take such instructions can be reasonably anticipated, permission for your client to have a secure telephone line available to him/her should be sought.

Where conferences are conducted using the remote service’s private meeting facility, ie by entering a separate virtual meeting ‘room’, you will have to be especially careful to ensure that the discussion is private and your client’s confidentiality is being properly maintained. Where you have doubts that that is the case, then you should not discuss client confidential matters.

Where confidentiality is an insurmountable problem, you should ask the court for the hearing to be adjourned so that instructions can be taken in confidence.

In the family courts

Martha Gray and Hari Kaur

In the family sphere, there is a lively and ongoing debate about the appropriateness of remote hearings. The diversity of views on the subject can be seen in the varied testimonials made in response to the Nuffield Family Justice Observatory Consultation Remote hearings in the family justice system: a rapid consultation and in a series of guest blogs posted to the Transparency Project website. There have already been numerous guidance documents and a string of recent decisions examining the fairness of conducting a remote hearing, notably Re P (A Child: Remote Hearing) [2020] EWFC 32, Re B (Children) (Remote Hearing: Interim Care Order) [2020] EWCA Civ 584 and Re A (Children) (Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583. Each of the cases emphasise the need to ensure the effective participation of all parties when conducting a hearing remotely and the potential implications for fairness and justice.

There are ethical issues too, ranging from the apparently trivial: ensuring appropriate court attire is worn during remote hearings and that an appropriate backdrop is used during video calls; to the practical: ensuring you are able to communicate with your client and the court securely and in private without disruption from children, pets, and even partners! All engage core duties, such as ensuring that you keep the affairs of each client confidential and do not behave in a way which is likely to diminish the trust and confidence that the public places in the profession.

Perhaps the trickiest area is ensuring that that you act in the best interests of your client despite the distance between you. For family and criminal practitioners, instructed on behalf of vulnerable clients, this means being particularly alive to issues which might affect your client’s participation such as cognitive or mental health issues and language difficulties. There may be other factors which inhibit your client’s ability to communicate freely with you, such as the presence of a child or an abusive partner. Advocates should pay particular attention to whether clients have the means to access the proposed remote platform and understand how to use it. They will also need to take care to ensure that their clients are able to understand and follow the court process and seek to maximise their participation. This might be by holding pre-hearing discussions and having a debrief after the hearing. Establishing a means by which clients can communicate with you during the hearing can also be a useful tool. Where clients are assisted by an intermediary or an interpreter, consideration will need to be given to whether and how such assistance can be provided remotely, and careful attention paid to the ground rules if the hearing proceeds.

For now, there is no formal guidance on the conduct of remote hearings from the Bar Standards Board or the Bar Council, given the unique and often case specific challenges posed by the coronavirus outbreak. However, practitioners may be assisted by the examples of good practice set out in the Nuffield consultation document, the Principles for Remote Advocacy  published by the Inns of Court College of Advocacy, as well as the Guidance  issued by the President of the Family Division and by Mr Justice MacDonald.