The new normal

It is mid-April and it is astonishing to think that our attitude to the ways that justice can be delivered are unrecognisable from a month ago. Everything has changed. The traditional court building is not designed for social distancing; getting to court is itself potentially contrary to government advice; HMCTS struggled at first to clean courtrooms and provide facilities so that they could be used safely. Whereas we often worried whether we had properly articulated an application for a witness to give evidence by video link, remote hearings are now the default. Where will be in another month’s time or the end of the year?

Remote hearings have many advantages, and not just in the current environment. We may give access to justice to more people if they do not have to travel many miles to their not-so-local court, bearing in mind that so many courts were closed before the virus struck. Those in remote and rural areas may prefer to be present in their hearing via a video platform. Many hearings that traditionally required parties and representatives to attend at court are now satisfactorily dealt with by telephone or video hearing or even by email.

For many barristers this change of working style may be beneficial. They may no longer need to get that early train to a faraway court, just to ask for an adjournment, and thereby avoid having to make childcare arrangements. They may be able to attend more than one court centre in a day, with no impact on just outcomes. As these ways of working are normalised, we will be even better able to provide excellent legal services to those further away, including overseas clients who need our help. We can certainly learn from our international colleagues. Remote Courts Worldwide shares experiences of justice systems operating across the globe and how each copes with the practical effects of coronavirus on delivery of justice.

Resources matter, however: remote working needs to be done properly with adequate investment and support across HMCTS for the infrastructure, the parties and the judiciary. If the technology is insufficient, proper participation in the hearing will be lost, and with it, justice will suffer.

It could not be more important in this time of crisis that justice continues to be the calm and strong backbone of society. That involves not only investment in the kit, but also in the people. The judiciary, the legal professionals, the court staff, the litigants – in person or represented – must all have the training and the technology to enable justice to be done and seen to be done. Sometimes that will simply not be possible remotely. In those circumstances, either the case will have to be listed in person with sufficient safety and social distancing measures in place to make the hearing compliant with government health advice, or it will have to be adjourned.

Remote trials and hearings must not be at the expense of open justice. The courts have quickly become alive to the need for transparency, and impressive efforts have been made to ensure that access to proceedings for journalists and therefore the public, is factored into decisions about mechanisms for hearing cases.

Some hearings are harder to do effectively if everyone is remote. Whereas teams of lawyers can adapt technology for team conferences, by using parallel applications, to consult alongside the platform holding the hearing, some groups of people – and the jury immediately comes to mind – are unlikely to be able to work together if physically remote from each other. I watched with interest the first JUSTICE-run mock trial of a criminal matter with a jury, each member of which was in their own home. Of course, there were technological challenges, but they will be largely ironed out as we become more used to remote hearings. The essence of the jury seemed to me to be lost in their separateness, one from another. A jury is unlike any other body in our justice system. We cannot expect 12 randomly selected people, none of whom know each other beforehand, to build a bond to come to a collaborative decision, when they don’t have any opportunity for any sort of working relationship. And how will the court ensure that the jury is acting properly, that attention has not wandered, that a screen isn’t being used improperly or that another person is in the room? How will those potential jurors who don’t have a spare room which they can sit in quietly on their own for five hours be accommodated? Will we resort to a sort of faux-selection based on economic factors?

Whatever decision is made, it is vital that the decisive factor is justice; the adage ‘justice delayed is justice denied’ is not some pat phrase. We know that those involved in the system lose heart if proceedings go on for a long time, that defendants suffer in health, work and wellbeing from having the strain of an allegation of crime (often wrongly) hanging over them, that witnesses decline to attend, complainants withdraw perfectly good allegations of serious crime, when justice grinds along at a glacial pace. In other words, delays in the pursuit and delivery of justice have real life consequences.

In the end, the system must strive to achieve balance. We must ensure that participants are truly involved and treated with the same respect and consideration as in a courtroom and that just results are achieved. Without that, we will lose the confidence of those needing access to justice and, ultimately, public confidence in our ability to do justice – an avoidable tragedy.