Coronavirus (COVID-19): The impact on courts Contents

4Technology and the courts

38.The Covid-19 pandemic has necessitated a significant increase in the role of technology in the justice system in England and Wales. The ongoing HMCTS reform programme, ‘Transforming our Justice System’, which began in 2016, aimed to radically enhance the role of technology.58 However, when the Covid-19 pandemic struck in 2020 the court system was still, in terms of the use of technology, “virtually below sea level”, according to Professor Dame Hazel Genn of UCL.59

39.This makes it even more remarkable that courts and tribunals managed to move so quickly to turn digitally-enabled remote hearings into the ‘new normal’. HMCTS data shows that the numbers of cases heard each day in England and Wales with the use of audio and video technology increased from fewer than 1,000 in the last week of March 2020 to approximately 3,000 by mid-April.60 On 24 April 2020, 90% of the 3,200 hearings taking place that day were through audio or video.61 The Committee recognises that this is an substantial achievement.

40.A further positive is that recent evidence suggests high satisfaction with remote hearings in the civil justice system, at least among practitioners. A study by the Civil Justice Council and the Legal Education Foundation into the impact of Covid-19 measures found that 71.5% of more than 1,000 lawyers surveyed described their experience as positive or very positive.62 However, the study received only 11 complete responses from lay users of the civil justice system.63 As a result the authors suggest that there is an “urgent need to capture the types of management information that facilitate the conduct of research into the experience of lay users and litigants in person”.64 While legal practitioner satisfaction with the use of digital technology in the civil courts is welcome, there is an absence of data so far on how that has affected lay users who are using the system or their satisfaction with the process and outcome of their hearings.

41.The increase in the use of technology in courts and tribunals remains a matter for consideration. Before the Covid-19 pandemic, in November 2019, the Justice Committee’s report on Court and Tribunal Reform, concluded that:

Poor digital skills, limited access to technology, low levels of literacy and personal disadvantages experienced by particular groups create barriers to access to digital justice services. HMCTS has not taken sufficient steps to address the needs of vulnerable users, particularly as regards an absence of adequate legal advice and support.65

We remain concerned that the use of technology in courts and tribunals may not always be tailored to the needs of the most vulnerable users of the justice system.

42.As many of us have found in our own working lives, the effectiveness of digitally enabled meetings and hearings depends on a range of factors, including the suitability of the platform, the quality of the hardware and internet connection being used by the participants, and the digital skills of the participants. The Lord Chief Justice, Lord Burnett, told us on 22 May 2020, that judges had found that “the quality of the kit matters a great deal”.66 All users of the justice system during the crisis are likely to endorse the Lord Chief Justice’s observation. It is a simple truism that professionals within the system - primarily judges and lawyers - are likely to have better access to high-quality equipment, and more experience, familiarity and digital skills than lay users whose contact with the justice system may be fleeting.

43.This chapter seeks to identify some of the most prominent issues around the impact of technology on access to justice which have been raised with the Committee.

Vulnerable users

44.The Lord Chief Justice sought to reassure us that the shift to digital delivery of justice will not disadvantage those who have difficulties with remote hearings and that he is committed to safeguarding the interests of vulnerable court users:

The general proposition is that, when we are back into normal times, nobody will be forced to use digital engagement with the courts if they are not able to do so. That is always an absolutely fundamental starting point. That will not change.

One of the things that everybody who conducts hearings is conscious of is that vulnerable court users, and vulnerable people with vulnerabilities caused by a range of different circumstances, need to be treated with particular care. Young people comprise a group where there is a large number of vulnerable people. A large number of people in the court system have mental difficulties and again can be very vulnerable. Of course, in some of the tribunal contexts—the social entitlement chamber and so on—again there can be great vulnerability.

[...] At the moment the difficulty for some of the vulnerable is that they are not able to engage in or use this sort of [video] facility, or even the telephone. To give examples, we have heard so much of this in the family courts, where there are a lot of litigants in person. They are often living in fairly deprived circumstances. It is unreal to suppose that they have good broadband connections, computers and so on to be able to attend a hearing remotely.67

45.The Chief Executive of HMCTS, Susan Acland-Hood, gave a similar message in relation to people with disabilities taking part in remote hearings. She told us:

What we are trying to do is to make sure that people understand that nobody for whom remote participation is difficult is required to participate remotely.68

46.John Bache, Chair of the Magistrates Association, was, however, more cautious:

We have concerns, and have had concerns for a long time, particularly about more vulnerable witnesses. There are obvious problems. Not everybody has access to video conferencing, but all of this is being worked through […] One particular problem that concerns us is the ability of the defendant to get confidential advice from their advocate. That is a problem. It is not insurmountable, but it is an obvious problem. The other thing that concerns us is that some people are not able to express themselves as well over video. Body language is important.69

47.Elspeth Thompson of Resolution also raised concerns about lay party participation in remote family hearings:

There are a lot of issues with remote hearings, particularly for parents in care proceedings whose only device to access them is a mobile phone, sometimes a cracked mobile phone, at home. If they are trying to access court bundles, you cannot do that on a phone. We have been trying to take bundles round to clients’ houses so that they can look at them in that way, but it is all very temporary.70

48.Some of that concern is reflected in the review of remote hearings in the Family Court by the Nuffield Family Justice Observatory:

Significant concerns were raised about the fairness of remote hearings in certain cases and circumstances, and there were some worrying descriptions of the way some cases had been conducted to date. These concerns chiefly related to cases where not having face-to-face contact made it difficult to read reactions and communicate in a humane and sensitive way, the difficulty of ensuring a party’s full participation in a remote hearing, and issues of confidentiality and privacy. Specific concerns were commonly raised in relation to specific groups: such as parties in cases involving domestic abuse, parties with a disability or cognitive impairment or where an intermediary or interpreter is required.71

49.Concerns reported by organisations and individuals with experience of working with and advocating for court users to the civil justice rapid review included:

a)That lack of communication from court staff prior to hearings and a decline in the amount of administrative support available at court during COVID-19 was impacting disproportionately on lay parties and litigants in person, causing anxiety and distress;

b)That many lay clients and litigants in person would be unable to access the technology and resources needed to effectively participate in remote hearings;

c)That the requirement to create and submit e-bundles would create particular challenges for many litigants in person;

d)That practices adopted by lawyers to communicate with their clients during hearings relied on lay parties having access to multiple devices and good standards of written comprehension, creating barriers to effective participation; and

e)That a combination of restricted access to legal advice due to COVID-19 and difficulties with navigating unfamiliar technology alongside unfamiliar legal processes compounded pre-existing practical and emotional barriers to effective participation.72

50.The Equality and Human Rights Commission has said that the use of video hearings in England and Wales can significantly hinder communication and understanding for people with learning disabilities, autism spectrum disorders and mental health conditions.73 In its interim report the Commission says:

Almost all the criminal justice professionals in England and Wales who we interviewed felt that use of video hearings does not enable defendants or accused people to participate effectively, and reduces opportunities to identify if they have a cognitive impairment, mental health condition and / or neuro-diverse condition. This is partly due to poor sound and image quality, which can make communication harder for everyone. These problems are even worse for the group our inquiry looks at [defendants and accused persons with disabilities], as video-links create separation—the defendant or accused person cannot see the whole court room and everyone in it.74

The report recommends that the Ministry of Justice and HMCTS should establish a clear evidence base on the impact of court reform for disabled defendants and address existing barriers for disabled defendants before any further measures are introduced or extended.

51.Evidence from the Children’s Rights Alliance for England and the Youth Justice Legal Centre, part of Just for Kids Law, drew attention to the impact on video hearings on child defendants:

We are extremely concerned that the increase in video link hearings for child defendants, both during the coronavirus and subsequently, severely compromises a child’s rights to a fair trial and their ability to effectively participate.75

52.Their evidence outlined that the starting point for children should be fundamentally different:

As a minimum we consider that lawyers should be either physically present with the child or, at the very least, able to have a video conference with the child during this time. The importance of building rapport and trust with a child, recognising non-verbal cues and identifying communication, social or learning difficulties are all impeded by the use of video link. The default position should be that children should never appear via video link for non- administrative hearings.76

Evaluation

53.We welcome assurances from the Lord Chief Justice and the Chief Executive of HMCTS that no one unable to engage digitally with the court and tribunal system will have to do so. There must be a particular focus on the interests of more vulnerable court users, including children, disabled people and those with specific communication needs. This is not simply a matter of the most high-tech kit and strongest wifi. HMCTS must ensure adequate engagement, comfort and comprehension on the part of all court users, irrespective of their computer skills and knowledge of legal process; this may require a physical hearing if justice is to be delivered to them fairly. The interests of vulnerable court users must be protected, including those of people with disabilities. Even the most high-tech kit and strongest wi-fi are no proof against the engagement, comfort and comprehension of those whose computer skills and knowledge of legal process may require a physical hearing if justice is to be delivered to them fairly.

54.The 2019 Justice Committee report on court and tribunal reform drew attention to the importance of rigorous evaluation of the impact of increased reliance on technology. That report noted that much more could be done to “evaluate the impact of the reforms on vulnerable and excluded groups”.77 The Committee commends judicial leadership for commissioning reviews of the impact of remote hearings in both the civil courts and the family courts.

55.On 5 June 2020, the Civil Justice Council and the Legal Education Foundation published the results of the rapid review of the impact of Covid-19 measures on the civil justice system.78 The review identified the following factors that led to satisfaction with remote hearings:

a)agreeing with the outcome of the hearing;

b)not experiencing technical difficulties;

c)participating in a fully video hearing (compared to an audio hearing);

d)having greater experience of remote hearings;

e)participating in a hearing at the start of the crisis and participating in a hearing that did not involve a litigant in person.

f)Costs hearings were more likely to be experienced positively than interlocutory hearings, and

g)enforcement hearings, appeals and trials were less likely to be experienced positively than interlocutory hearings.79

The review’s authors conclude that these findings suggest tentative support for reserving remote hearings for matters where the outcome is likely to be less contested, where the hearing is interlocutory in nature and for hearings where both parties are represented.80

56.Despite their broad satisfaction with remote hearings, lawyers who responded to the review of the impact of COVID-19 measures on the civil justice system also expressed concerns:

…the majority of respondents felt that remote hearings were worse than hearings in person overall and less effective in terms of facilitating participation—a critical component of procedural justice. Respondents also found remote hearings to be more tiring to participate in than physical hearings, particularly those that proceeded by video. Findings also suggest that remote hearings may not necessarily be cheaper to participate in, which may be counter to assumptions about relative costs being lower.81

57.In the rapid review for the Family Court, the respondents were evenly balanced in terms of their overall positive and negative reactions to remote hearings. Most thought that remote hearings were justified for certain cases in the current circumstances; some felt that this way of working could continue for certain cases in the future.82

58.There have been repeated calls for further reviews and for more detailed data on the impact of remote hearings. The report commissioned by the Civil Justice Council reported that:

Many respondents highlighted the urgent need to improve the quality and quantity of data and information available regarding the operation of the civil justice system. Recommendations were made in relation to both the management information produced by HMCTS and primary legal information (listings, case documents and judgments). Many respondents emphasised the urgent need for evaluation.83

The report recommended that HMCTS should capture the following information:

Without such basic information, systematic evaluation of the effectiveness of remote hearings, and their impact of access to justice will remain difficult.

59.The Equality and Human Rights Commission’s report on the Criminal Justice system expressed concerns about the lack of data currently available on the use of remote hearings and has encouraged the Government to begin collecting this data now to inform its use in the future.85

60.Ellie Cumbo, Head of Public Law at the Law Society, told the Committee on 4 May 2020 that HMCTS has no data on the quality of hearings:

There are numbers now available on how many hearings are taking place, whether by video, by telephone, or in some cases, still face to face. What they are not able to do yet is explain what types of hearing those have been: whether or not they involved witness evidence; whether or not vulnerable parties were involved; and whether or not all those involved would consider those hearings to be a success.86

In the circumstances of the Covid-19 pandemic it is understandable that HMCTS has prioritised delivering remote hearings over systematic evaluation. However, there is a risk that if the ability to conduct such evaluations is not embedded into the system at this stage, then it will be difficult to determine whether the changes made to adapt to Covid-19 should be adopted permanently.

61.We concur with the view of the Lord Chief Justice, Lord Burnett of Maldon, when he told us:

What has to happen, and is happening, is that information will be gathered about the experience of the use of these [video and audio] facilities so that careful decisions can be made about where they work, where they are good, where they do not work so well and where they do not really work at all.87

We must ensure that we are in a position, as soon as possible, to be able to evaluate what we have been doing so that we know, as John Bache, Chair of the Magistrates Association, put it :”whether it is sensible to carry on doing it”.88

62.The Committee is concerned that as yet there has been no judicially or government commissioned, review of the increased use of remote hearings in criminal cases in either the magistrates’ courts or the Crown Court during the pandemic.

63.On 30 April 2020, HM Courts and Tribunals Service (HMCTS) announced that:

HMCTS is bringing in a new video platform (Cloud Video Platform) to enable all parties in a criminal hearing to take part remotely—allowing all magistrate and crown courts in England and Wales to hold secure hearings, making it easier to make sure justice continues to be served. Most criminal cases are heard in magistrate courts and this technology—available for cases such as remand, custody time limit, and sentencing hearings—will help move people through the criminal justice system in these unprecedented times. This technology will not be used for jury trials, and a judge will decide whether it is appropriate to use in any other hearing on a case-by-case basis.89

64.We asked the Chief Executive of HM Courts and Tribunals Service, Susan Acland-Hood, about this on 23 June 2020, and she told us that the new platform, Cloud Video Platform (CVP), had been rolled out to criminal courts and that the platform allowed for confidential communications between clients and lawyers separately from the links for the hearing itself.90 She said the new platform was about to be rolled out for civil and family hearings.91

65.The Justice Committee raised concerns about the use of video links and video hearings in criminal cases in its October 2019 report, Court and Tribunal Reforms, and recommended further research on their impact on justice outcomes.92 In light of the Equality and Human Rights Commission’s recent findings, we recommend that the Ministry of Justice commission an urgent review that evaluates the effect of Covid-19 measures in the magistrates’ courts and the Crown Court.

Open justice

66.It can be difficult to provide members of the press or public with access to remote hearings. This is recognised in the Civil Justice in England and Wales Protocol Regarding Remote Hearings:

The hearing can be made open to the public, if technically possible, either by the judge(s) or the clerk logging in to the hearing in a public court room and making the hearing audible in that court room, or by other methods. But in the exceptional circumstances presented by the current pandemic, the impossibility of public access should not normally prevent a remote hearing taking place.93

67.Susan Acland-Hood, the Chief Executive of HM Courts & Tribunals Service, wrote to the Committee on 27 April 2020:

The feedback we received demonstrated a mixed picture with some good examples of where the media had been provided with remote access to hearings, while other examples raised concerns about the timeliness of requests being handled.

As a result of this feedback, we have issued more specific guidance to HMCTS staff on how to handle media requests to gain remote access to a hearing. This came into force on 17 April. We believe that, while many courts are facing staffing pressures because of the crisis, this should help ensure that media requests are picked up and processed in a timely way.94

68.The Civil Justice Council and the Legal Education Foundation’s study on the impact of Covid-19 measures in the civil justice system reported the following on open justice:

Journalists and court reporters who responded to the survey reported that they have largely been able to attend hearings where they have wished to do so—no respondents reported that their access had been refused.95

The findings from the consultation revealed a divide between the upper and lower courts in terms of the amount of the amount of information published.96 This concern was echoed on 29 May 2020 by a coalition group of campaigning organisations, academics and open justice advocates, who noted in a letter that “members of the public—including many of the signatories to this letter—have encountered severe obstacles when trying to observe the justice process, particularly in the lower courts”.97

69.On 9 June 2020, the Lord Chief Justice, Lord Burnett, wrote to the Committee. He noted that “HMCTS are not collecting data on how many members of the public are connecting to listen to proceedings, and there are no plans to do so”.98 He set out some difficulties in providing electronic access to hearings for the wider public:

A serious issue is that it is not possible to control recording or broadcasting other abuse by members of the public. Decisions are taken on a case by case basis by judges in balancing that risk against the need for openness. Accredited journalists are clearly more familiar with the law and the penalty for breaking it. The requirement for open justice is generally satisfied by journalists being admitted (emphasis added). However, the demand for public access as things stand has been very limited and so this may be something of a moot point.99

This point suggests that the application of the principle of open justice to remote hearings has to be fully worked through. We recommend that HMCTS commissions research to establish how the principle of open justice should apply to remote hearings. That should include research into how the public—not just the media—can ‘attend’ hearings. In the context of the emergency service being provided during the pandemic, but only in that context, we accept the Lord Chief Justice’s statement that the requirement for open justice is generally satisfied by journalists being admitted to hearings. A restoration of full public access to hearings is, however, necessary to the provision of open justice as soon as circumstances permit it. There is a danger during this extraordinary period that the principle’s role within the justice system will be eroded by accident.

Conclusion

70.We broadly welcome the greater use of technology which is an intrinsic part of HM Courts and Tribunals Service’s reform programme. HM Courts and Tribunal Service, the Judiciary, Magistracy, and legal professionals have done extremely well to keep the court system ticking over despite the restrictions imposed during the pandemic. A high proportion of hearings have gone ahead remotely in particular areas, such as for commercial cases. However, we would not like to see remote hearings maintained permanently without further assessment of the experiences and satisfaction of lay participants, including their access to the necessary technology and comprehension of proceedings. We are particularly concerned that disabilities or poverty can make it very difficult for some people to access justice properly via remote hearings.

71.There is a risk that technology exacerbates the sense of there being a two-tier justice system. The appellate courts at the top of hierarchy have moved fairly seamlessly to remote hearings. Large commercial law firms have welcomed the shift to remote hearings and advocated for the expanded use of remote hearings in commercial litigation.

72.At the coalface of the justice system, in the criminal justice system and the Family Court, technology has played a positive role in enabling the wheels of justice to turn where they otherwise might not have. However, in terms of the overall impact of technology, our sense is that it carries many more risks for those who are the most vulnerable users of the justice system. The magistrates’ courts and the Crown Court are ill-equipped to adapt to using technology when compared to appellate courts tacking commercial cases.

73.It is particularly worrying that when it comes to evaluating the impact of technology, we know the least about those who are most in need of support. We support the call from the authors of the Civil Justice Review who state that “the most pressing priority relates to the need to understand the experience of non-professional court users, particularly those who are considered vulnerable under existing law and practice directions, those with protected characteristics and those who are litigants in person”.100

74.We recommend that HMCTS set out a policy to ensure that court users, particularly those who are or may be considered vulnerable, are sufficiently able to follow and participate in virtual processes. This policy should specify how such checks are to be carried out and which official of the court is responsible for making them. A report should be made by that official to judges or others conducting proceedings to the effect that participants are able to understand what is being done and participate as appropriate before proceedings commence or continue.


58 Ministry of Justice, Transforming Our Justice System (2016)

59 House of Lords Select Committee on the Constitution, Oral evidence: Constitutional implications of Covid-19 Wednesday 3 June 2020

62 The Civil Justice Council and the Legal Education Foundation, The impact of COVID-19 measures on the civil justice system: Report and recommendations, May 2020, para 5.64

63 The Civil Justice Council and the Legal Education Foundation, The impact of COVID-19 measures on the civil justice system: Report and recommendations, May 2020, para 6.1

64 The Civil Justice Council and the Legal Education Foundation, The impact of COVID-19 measures on the civil justice system: Report and recommendations, May 2020, para 1.21

65 Justice Committee, Second Report of Session 2019, Court and Tribunal reforms, HC 190, para 39

71 Nuffield Family Justice Observatory, Remote hearings in the family justice system: a rapid consultation, May 2020, p 1

72 The Civil Justice Council and the Legal Education Foundation, The impact of COVID-19 measures on the civil justice system: Report and recommendations, May 2020, p 10

73 Equality and Human Rights Commission, press release, 22 April 2020

74 Equality and Human Rights Commission, Inclusive justice: a system designed for all: Interim Findings, April 2020, p 9

75 Justice Committee inquiry on Coronavirus (COVID-19): The impact on prison, probation and court systems from the Children’s Rights Alliance for England and the Youth Justice Legal Centre, part of Just for Kids Law, para 4

77 Justice Committee, Second Report of Session 2019, Court and Tribunal reforms, HC 190, para 210

78 The Civil Justice Council and the Legal Education Foundation, The impact of COVID-19 measures on the civil justice system: Report and recommendations, May 2020

79 The Civil Justice Council and the Legal Education Foundation, The impact of COVID-19 measures on the civil justice system: Report and recommendations, May 2020, p 8–9

80 The Civil Justice Council and the Legal Education Foundation, The impact of COVID-19 measures on the civil justice system: Report and recommendations, May 2020, p 8–9

81 The Civil Justice Council and the Legal Education Foundation, The impact of COVID-19 measures on the civil justice system: Report and recommendations, May 2020, p 9

82 Nuffield Family Justice Observatory, Remote hearings in the family justice system: a rapid consultation, May 2020, p 8

83 The Civil Justice Council and the Legal Education Foundation, The impact of COVID-19 measures on the civil justice system: Report and recommendations, May 2020, para 9.1

84 The Civil Justice Council and the Legal Education Foundation, The impact of COVID-19 measures on the civil justice system: Report and recommendations, May 2020, para 9.4

85 Equality and Human Rights Commission, Inclusive justice: a system designed for all: Interim Findings, April 2020, p 13

91 For more information on the Cloud Video Platform and the timeline for its rollout see: HMCTS, HMCTS online event, 15 July 2020: Use of remote hearings to maintain justice during the coronavirus outbreak (Last accessed 21 July 2020)

92 Justice Committee, Second Report of Session 2019, Court and Tribunal reforms, HC 190, para 88

93 Judiciary of England and Wales, Civil Justice in England and Wales Protocol Regarding Remote Hearings (26 March 2020)

95 The Civil Justice Council and the Legal Education Foundation, The impact of COVID-19 measures on the civil justice system: Report and recommendations, May 2020, para 1.24

96 The Civil Justice Council and the Legal Education Foundation, The impact of COVID-19 measures on the civil justice system: Report and recommendations, May 2020, para 1.25

97 Letter on Open Justice, ‘We need to protect open justice during the Covid-19 emergency’, The Justice Gap, 29 May 2020

100 The Civil Justice Council and the Legal Education Foundation, The impact of COVID-19 measures on the civil justice system: Report and recommendations, May 2020,p 84




Published: 30 July 2020