Court, but not as we know it

How should our civil courts take forward the changed ways of operating as a result of COVID-19? Are remote hearings here to stay, or should we return, in whole or in part, to traditional in-person hearings when that is possible? More than 200 people attended an online conference organised by the Judicial Institute for Scotland on 10 May to hear and share views and experiences.

Opening the proceedings, the Lord President, Lord Carloway said the purpose was not to achieve any particular agenda, but to provide a focal point for beginning to consider what new methods should be retained or improved, and what previous practices, especially in-person hearings, reinstated. Reasonable people would disagree about the distance and direction of travel.

He also observed that the justice system was the concern not only of its direct participants, but also litigants, who wanted quick and fair resolution.

More than a dozen papers from a range of interests had been prepared and circulated in advance, and throughout the day these were spoken to, supplemented and the focus of questions from attendees. An official report on the day will be published; this feature attempts meantime to provide a montage of the views expressed.

Good, in parts

What has been the experience of legal professionals to date? Surveys reported to conference show a pattern emerging. The Law Society of Scotland found more than three quarters of solicitors who responded (78.5%) in favour of remote hearings continuing, but whereas over 90% agree that procedural hearings “work particularly well remotely”, only 25% said the same of first instance debates, 15% with appeals, and a mere 3-5% agreed as respects court or tribunal evidential hearings. Asked which aspects “do not work at all well remotely”, answers ranged from fewer than 5% for procedural hearings, through 12.5% for debates and 16% for appeals, to 66-68% for evidential hearings – which suggests that at least with debates and appeals, a large body in the middle find less of a difference.

The Faculty of Advocates reported a similar spread, with less overall enthusiasm for remote hearings. While 91% of members surveyed agreed that they are “a useful addition” to the options for court hearings, just under half supported them becoming the default for procedural hearings, below 20% did so for hearings of legal argument, and fewer than 5% for witness evidence. In addition, 72% believed they should only be used with parties’ consent.

Conference was told that 76% of sheriffs believe virtual courts have made their job more difficult.

Perceptions matter

Why should this be? There is an element of frustration with the technology – “we are still at the bottom of a very substantial curve in this regard”, the Sheriffs’ Association observes, referring to connectivity issues as well as lack of familiarity.

Technical problems apart, however, many practitioners claim to find their job more difficult with remote hearings, whether conducting the hearing itself or from losing other benefits of being at court.

A paper from the Society, presented by personal injury lawyer Gordon Dalyell, focused the issues. Leaving aside inconsistency of approach across different courts (which is being addressed), a large majority of survey respondents found witness examination and cross-examination more difficult, and felt it was harder for the judge or sheriff to assess credibility, and that clients’ interests were disadvantaged. Practical problems arose in communicating confidentially with client and/or counsel (the “tug on the gown” in court). Many also found it harder to communicate effectively with the court, and disliked the additional written submissions in advance.

Several speakers addressed assessment of credibility. Individual judges denied they found this more difficult with remote proofs, but the Sheriffs’ Association reported “real concerns” at least with the quality of evidence. The Society maintains that whether or not solicitors’ impressions are correct, “The perception is all important as justice needs to be seen to be done”; and that there is a risk of losing confidence in the system.

Further sentiments expressed at conference include that impromptu discussions on settlement or future conduct of the case are unlikely with remote hearings – despite best efforts these often take place only when parties are faced with the reality of court.

Access to justice: jury out

Rightly, presenters highlighted the need to safeguard access to justice. Here there are arguments both ways. It also has two distinct aspects: open justice, through scrutiny by media and the interested public, and access by the individual to the impartial forum that the court provides.

The Society’s survey found 24% who believe that remote hearings increase access to justice; relatively few thought the opposite (a subset of an 11% stating “other reasons” for an overall detrimental effect). For litigants, Faculty suggests that whereas remote hearings will not speed up the process (still being dependent on judicial resource), there is a potential adverse impact on the less technologically literate or those with limited IT; they may affect litigants’ trust in the process, and prove more costly given the additional written advocacy. Founding on the “principle that a change to remote hearings should be positively justified before it is made”, Faculty maintains that “investigating these poorly understood aspects could be of critical importance”.

Set against that, those who are geographically remote from the court might well benefit – provided the tech is adequate – including through being able to access specialist courts or judges; and there was wide agreement that expert evidence taken this way minimises disruption to the expert’s diary, and therefore cost.

As regards the public, remote hearings enable large numbers to observe proceedings – Lord Tyre reported that the Hearts/Partick promotion and relegation case attracted 950 attendees, leading him to pose the question whether there should be a separate category of cases for remote hearings. But having to apply to the court in advance for a link, Faculty suggests, is not truly open justice. Whether viewing through technology makes it easier or harder to follow what is going on appears to depend on your point of view.

Lady Wise noted a report that journalists favour remote viewing, as it saves travelling and waiting time. “It is clear that allowing the media and the public to continue to view proceedings remotely would be in the interests of open justice,” she concludes, while also recognising that certain implications still need to be scrutinised in detail. Perhaps, as Faculty concludes on this aspect, citing the live streaming available from the UK Supreme Court, technology is better viewed as “complementary rather than customary”. That in turn would require the courts to be much better equipped than they are now.

Views from the bench

Judges offered a range of assessments from their experience. Giving the perspective of the Sheriff Appeal Court, Sheriff Principal Anwar noted various pros and cons and concluded: “Remote substantive appeal hearings have a place and will prove to be a very useful ‘tool in the box’. In my view, the SAC should retain a discretion as to whether to convene a remote or physical substantive appeal hearing. That would allow a degree of flexibility which can take account of the views of the parties, issues of convenience and any particular issues which may arise in relation to party litigants.”

Specialist courts such as the commercial and personal injury courts, she continued, were “well placed to take advantage of remote hearings, including evidential hearings”, as had become the default. Child welfare hearings might work well in some cases, but their remote conduct required further research and consultation (Lady Wise had particular concerns over these). Ordinary proofs required active case management for remote hearings, and procedural changes needed to be considered.

Concluding, the sheriff principal affirmed her belief in the opportunities from new technology, and the need to “guard against the desire to simply return to old practices”.

From the Commercial Court, Lord Tyre hoped that many of the efficiency practices adopted for remote hearings would be retained, whatever was decided in relation to proofs in general – and noted further considerations that might favour greater use of Webex (short proofs; witnesses at a distance; open justice), not only in commercial actions.

Sheriff Wendy Sheehan, President of the Sheriffs’ Association, however, noted that the Association’s positive observations about remote hearings came with “significant caveats” – the greater administrative burden, the need for improved technology, and the occupational health issues for sheriffs. There were concerns not only about quality of evidence, but issues of contempt and prevarication, and cases involving interpreters or multiple parties. Summary sheriffs reported difficulties in engaging with parties and attempting early resolution. With cases such as adoptions and children’s referrals, “multiple concerns arise”.

Inner House judge Lord Pentland, while fully behind the supporters of in-person advocacy (remote appeal hearings, in his view, have been “sub-optimal”), attached particular importance to the court as a “place”: “The court as a physical place supports the public’s acceptance of the legitimacy and authority of the court, and the law itself.” This was particularly demonstrated by the Inner House hearing in the prorogation case. In addition to its public education benefits, “It is difficult to imagine reporters being able to convey to the public this dramatic assertion of the authority of the law, without the reporters themselves being at the site of justice, to bear witness to it and show it.”

This has constitutional significance: the court needs to impact on public consciousness in the same way as, say, Holyrood or 10 Downing Street. Otherwise “The courts would lose stature in comparison to executives and legislatures at the local and national levels.”

Concluding by quoting the Lord President’s comment from summer 2020, “The court is not just a physical space. It is a public service,” Pentland added: “The question is how best to ensure that the quality of that service is maintained and enhanced.”

Kay McCorquodale of Scottish Courts & Tribunals Service (“SCTS”), however, put the quote in its fuller context. Lord Carloway called it a “misconception” to regard the court as a building, and continued: “Virtual courts and online services should, and now will, be viewed as core components of the justice system, rather than short-term, stopgap alternatives to appearances in the courtroom.”

Default position?

What outcomes can we foresee from all this? Both the Society and Faculty have called for the default position for proofs to revert to in-person hearings, Faculty via a joint statement of the UK and Ireland Bars which identifies many of the same issues as reported by the Society. “[Our] universal sentiment... is that remote hearings deliver a markedly inferior experience”, the Bars state. And they have wider concerns including the effect on the training experience; and the isolation – “in marked contrast to the usual collegiality of our respective Bars” – which is having a negative impact on wellbeing.

The Bars’ unanimous conclusion is therefore that remote hearings can become the default position for short or uncontroversial procedural business, and their use “will be vital in tackling accrued backlogs... However, 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”.

The conference further heard that the goodwill of the profession might evaporate if there is any attempt to proceed other than by consensus. This was accepted; indeed a panel of presenters readily agreed with a questioner who asked whether Scotland being a small jurisdiction with people who knew each other had helped in working things out thus far.

But the backlog...

Those who hanker for a return to more in-person hearings will nonetheless have to face up to certain realities flagged up in McCorquodale’s paper. SCTS modelling predicts that, even with additional trial capacity, criminal case backlogs in the sheriff and High Court will take three to four years to clear. For that time, particularly while physical distancing remains, “there will be a continued need to maximise the levels of both civil and criminal business that can appropriately be undertaken by virtual means”.

Longer-term, SCTS anticipates that virtual hearings will continue to be integral to civil proceedings, particularly with procedural matters or where the court is not local to the lawyers or clients. “This will, however, always be at the discretion of the judiciary”. (The weight to be given to parties’ preferences also attracted various observations at conference.)

SCTS believes that although different from traditional hearings, virtual courts can still enable a comprehensive factual enquiry, scrutinise evidence, and deliver justice – while increasing efficiencies and improving access to justice, both for parties and observers. The anxiety some suffer with technology is acknowledged; but this should diminish with experience. Technical issues arise in fewer than 1% of cases, and are usually due to individuals’ errors or poor connectivity. (This appeared somewhat at odds with frustrations reported by others.) If virtual hearings take longer, they also call for more effective judicial case management. Regular breaks may be needed, but occur also in physical hearings.

The majesty of the courtroom? Dress code and court etiquette and practice are retained. Complex or sensitive hearings? Witnesses may feel less intimidated, and credibility can still be assessed. (Note the views reported above on this point.) Potential additional benefits are less waiting and travel time, flexibility in hearings, and creative ways of presenting evidence, as well as efficiency over document bundles.

For the future, SCTS will “work [in partnership] with agencies across the system to ensure that innovations are retained and developed”. It will involve considerable investment, but the goal is to create a better system – “a modern, flexible, digitally-enabled justice system in which all users have a role to play”.

Best of both?

Reading between the lines, one could detect a belief on the part of the court authorities, and perhaps some senior judges, that remote hearings should have a greater role in the longer term than many practitioners yet feel comfortable with. Reconciling these standpoints will be a central focus of the discussions that lie ahead. And, as speakers of different views commented, much more evaluative work is needed before we make anything approaching final decisions.

Wrapping up the conference, Lady Dorrian, Lord Justice Clerk, observed that while there should be no sacred cows, we do have sacred principles that must not be lost. Sometimes remote hearings will suit all concerned, and we should be open to the possibility of live, virtual and hybrid hearings.

For her, there were three areas with issues of particular concern: open justice; access to justice (for which the traditional system also raised issues); and welfare and morale. “They say you can’t have the best of both worlds,” Dorrian concluded. “But that is no reason not to try.”

To set against the cautious approach of some presenters, a paper by Richard Susskind – who else? – sought to challenge thinking that simply reflects established ways of conducting litigation.

The challenges posed by coronavirus – maintaining a sufficient level of service while courts are closed, and dealing with the accumulated backlog – sit for Susskind alongside the longstanding one of litigation taking too long, costing too much, and the process being “unintelligible to all but lawyers”, an access to justice problem in itself: most people cannot afford to go to court.

Whereas for most lawyers and judges technology is a means to streamline existing practices, for Susskind it should bring about “transformation... to allow us to do things that previously were not possible (or even conceivable)”.

His presentation recognised how “adaptable and resourceful” judges and lawyers had been when faced with the pandemic, and their better than expected view of remote hearings, while acknowledging the difficulties some people have encountered, the tiredness, and problems with documents.

Not only procedural matters have been found well suited to remote hearing, in his view: small money claims, minor criminal offences, commercial disputes and civil appeals can be added to the list. “Contrary to early thinking..., it is mistaken to believe that remote hearings are ideally suited to high volume, low margin cases, while traditional physical courts are the places in which to argue and settle the lower volumes of high value cases. There is no direct mapping between the value of a case and its suitability for remote treatment.”

Another important question: “When we ask what types of cases and issues can be settled by remote hearing, are we trying to determine when remote hearings can be said to be better than physical hearings; or as good as physical hearings; or not as good but ‘good enough’ (and when is good enough good enough?); or not as good but, with some investment and imagination, likely to be good enough, as good, or better? The commentary is currently silent on this issue, in so far as I can see. As a matter of urgency, that silence must be broken.”

But we need more data, so that policy making can be evidence based.

To those who ask, “What about justice?”, Susskind questions what justice actually means. He identifies seven separate strands, from substantive (fair decisions) through to sustainable (sufficient resource). Objections to remote courts tend to focus on open justice and procedural justice (he questions whether experience bears this out); but a “more nuanced conversation” is needed; and their widespread continuing use needs “deep discussion rather than dismissive emotional appeals to justice”.

Returning to his transformative agenda, Susskind regards remote hearings as “but a first step in our migration away from the settlement of legal disputes exclusively in physical spaces”. Beyond lie online judging (“paper hearings”, to some), and what he calls (as in his most recent book) the “extended court”, in which as well as carrying out their primary adjudicative function, courts provide services including systems to help users, especially non-lawyers, understand their rights and obligations; guides to the forms of resolution available; and facilities to encourage settlement.

While this may sound radical, “I simply do not believe that improving and optimising our current court processes will be sufficient to overcome the intolerable access to justice problem, as compounded by the backlog that is building because of the virus”. But since courts will have their hands full just dealing with current backlogs, alternative resolution platforms should be encouraged.

Concluding, Susskind believes court services should be simultaneously planning for the short, medium and long term, the last of these projects comprising the radical redesign of our courts to create something “better than what we have today”. And it should start with a blank sheet.