The Council of Her Majesty’s Circuit Judges – written evidence (CIC0039)

House of Lords Constitution Committee

Inquiry into the Constitutional Implications of COVID-19

1. The Council of Her Majesty’s Circuit Judges is the representative body for the Circuit Judges of England and Wales and has 563 members who are serving Circuit Judges. We also represent many retired Circuit Judges. In responding to this consultation, we have not had the opportunity of consulting all our members; however, the membership is represented by an elected Committee serving all jurisdictions. The Council has subcommittees for each of the jurisdictions on which there are judges experienced in that jurisdiction, and we have also consulted Resident Judges, Designated Civil Judges and Designated Family Judges.
2. The courts in England and Wales are divided into different jurisdictions – crime, civil and family. In our view, while there are some common issues, the questions posed in this consultation need to be addressed in each of the three jurisdictions separately, and we do so below.

Criminal Jurisdiction

Virtual proceedings

1. How effective are virtual court and tribunal proceedings? What are the benefits, disadvantages and challenges of virtual proceedings?

How effective are virtual (criminal) court proceedings?

3. On 23rd March 2020 Jury trials were suspended. They were only resumed in limited court centres, and in limited numbers, in the week beginning 18th May 2020. Since that time trials have slowly resumed at other court centres. No jury trials have been conducted in which counsel and witnesses have all attended remotely. Jurors cannot attend remotely. The proceedings that have taken place remotely during the pandemic have been largely limited to non-trial hearings. There are a few trials in which some defendants and counsel have appeared remotely for part of their trial but these are sub-judice and our response is accordingly restricted to interlocutory hearings.
4. Virtual hearings have enabled the Criminal Courts to progress non-jury cases in a time of national emergency and when many courts have been closed to the public. Courts report being up to date with such cases. To that extent they have been “effective”. However this observation must be seen in the context of courts not conducting jury trials (and so having greater time available for non-jury work) and where experience shows that remote hearings take far longer, are less flexible than face to face hearings, do not readily promote the early resolution of cases caused by a combination of the inability of Defence counsel to take proper instructions from their clients, the inability of Prosecuting and Defence counsel to engage in productive face to face discussions each combined with daily IT failings that further frustrate and delay proceedings.
5. Virtual hearings are most effective in dealing with bail applications, routine case management, non-contested applications, mentions, and hearings at which the defendant’s attendance is excused. Although timetabling can be given at virtual plea and trial preparation hearings (PTPH), such hearings do not allow for more effective trial management and progress of cases because of the reduced opportunities for positive engagement between all parties to resolve a case.

What are the benefits of virtual proceedings?

6. They have enabled courts to progress case management hearings, bail applications, sentencing hearings, some appeals, uncontested confiscation proceedings and mention hearings when this would not otherwise have been possible. This has meant that courts are up to date with non-trial work.
7. Advocates can attend different locations in one court day – at least with procedural hearings that have largely been conducted until recently. It is therefore more likely that the advocate instructed in the case will attend allowing for some meaningful progress.

What are the disadvantages and challenges of virtual proceedings?

8. At the start of lock down, the immediate challenge was that the Court Service lacked proper IT and computer hardware to allow remote hearings to be conducted in a way that complied with the Coronavirus Act 2020 so that all participants were able to both see and hear each other. This meant that the initiative for devising and implementing what were hastily devised “Heath Robinson” IT Systems, dependent on careful positioning and juxta-positioning of a series of counter-opposing laptops, fell on Judges and dedicated court staff. That such hearings progressed at all was due to everyone involved learning daily by mistakes and operating a system on a “make do and mend” basis. There was limited if any training provided. This position was exacerbated by inconsistency of approach as to which operating platform should be used – with systems such as Skype for Business, Microsoft Teams, and Zoom being mooted at different times before Skype and now the Cloud Video Platform were settled upon as being the video conferencing service to use.
9. Virtual hearings take longer generally and particularly where they are affected by technical issues – see below – or when an interpreter is required. Because of the length of such hearings, fewer cases can be listed.
10. More staff are required to arrange, set up and run virtual hearings; there is more work for staff to do.
11. Virtual hearings do not allow for effective discussion between the parties or between counsel and defendants and so cases that might otherwise resolve do not – meaning that further hearings are necessary.
12. Hearings have to be given fixed time slots to allow for (a) parties to join the hearing (b) prison slots to be met and kept. Listing in this way limits the number of cases that can be listed and are less flexible.  If, for example, an issue arises in Case 1 on which instructions need to be taken then time is spent arranging for the advocate to speak to the defendant (usually necessitating the court rising to allow privacy) causing additional delay and often the need for an adjournment to enable the remaining cases to be heard.
13. Cases involving the need for, and remote attendance of, interpreters cause added delay – because effective simultaneous translation cannot be undertaken in court.
14. Those courts where bailed defendants have attended remotely report issues of lack of engagement with such defendants and the difficulty of maintaining the dignity and proper solemnity of the court proceedings with some instances of defendants appearing half dressed and talking to others in their household; other courts instance difficulties that defendants have had in joining proceedings. Many other courts have not required defendants on bail to attend remotely.
15. Dealing with repeated and daily IT failings is tiring and frustrating for judges, court staff and participants. See below. Such issues risk grave reputational damage to the justice system.
16. Court staff have been placed under considerable stress to both set up new ways of working – with lack of equipment and limited or no training with further pressures and stress caused when the hearing has technical failings which they feel obliged to attempt to resolve. They have met the incredible challenges they have faced with resolution and fortitude, but there should be no underplaying of the strains and stresses to which they have been subject. Those pressures have been heightened by such tasks falling on the few staff who have not been obliged to isolate.
17. Virtual hearings encourage undue informality that is inconsistent with the solemnity and seriousness of court hearings. There is an artificiality surrounding the proceedings and it can be difficult for a defendant to distinguish who are the participants – in one court hearing a defendant when asked if he could see and hear the judge replied – “is she the blonde?”.
18. Hybrid hearings – with some parties attending remotely and others present in court present their own particular problems and challenges: – bailed defendants who attend are understandably confused at the absence of their own counsel, extra set up time has been required to re-position court laptops so that a defendant who is present can see the advocates who are appearing remotely. The Common Video Platform may assist such hearings – but practical issues are still being experienced.
19. A significant number of defendants appearing in the Crown Court suffer from mental health issues or learning disorders. Remote hearings make it far less easy to either engage with such defendants and for both advocates and the judge to make any proper assessment of what assistance may properly be required in their cases. There is no reliable data as to the numbers of defendants who have such issues – although the National Institute for Health and Care Excellence Guidelines March 2017 stated that an estimated 39% of those detained in police custody and 29% of those serving community sentences have a mental health issue (Quoted in “Mental Health and Fair Trial” – a report published in Nov 2017 by a working party of Justice chaired by Sir David Latham).
20. Sentencing remotely prevents those who have been the victims of criminal offences seeing the defendant sentenced in court.

2. What is the impact of virtual proceedings on (1) litigants, (2) lawyers, (3) judges, (4) court staff, (5) media, (6) the public? What support is available to them and what is required?

Impact of virtual proceedings on Judges

21. Judges commonly report that virtual hearings are more taxing, demanding, frustrating, time consuming and tiring – with consistent reports of such hearings being “exhausting”.
22. Judges spend greater time managing the technical issues and failings that occur in an attempt to maintain some progress of the hearing.
23. Judges require greater preparation time to ensure, as best they can, that cases that are likely to be beset with technical issues otherwise proceed as efficiently as possible.

Impact of virtual proceedings on court staff

24. At the beginning of the pandemic many court staff were required to isolate. The burden of learning and setting up virtual hearings fell on a limited number. The pressures and strains on court staff cannot be underestimated; they have had to implement significant changes in working practices at very short notice using inadequate, poorly equipped IT systems with limited training or guidance being provided. Such training as was provided was often dependent on it being passed on from one to another with inevitable gaps in knowledge becoming apparent.
25. The IT issues that have arisen have often fallen on a limited number of technically competent clerks to resolve – often with the assistance of judges.
26. As noted above such proceedings and the issues associated with them have been very stressful. Judges working closely with their clerks are able to see the impact that such cases have had on them. Many report staff being unsupported, exhausted, close to tears and with very low morale.

The impact of virtual proceedings on litigants, lawyers, media and the public is for those concerned to address. We make some limited observations:-

27. Defendants:

a. Remote hearings make it difficult for there to be effective engagement with the Defendant; many are reported as appearing bemused by the “remote experience” – with a perception that Defendants appear disengaged from the proceedings, particularly those with mental health or learning issues;

b. Those courts at which bailed Defendants have been required to attend remotely report difficulties in participation whether due to technical incompetence, lack of Wi-Fi connectivity or other issues.

28. Media – have been able to attend remotely and so maintain open justice in difficult circumstances.
29. Public – Although interested parties have been able to join remote hearings, few courts report this occurring in practice. The reasons for this may need further exploration. There has been reduced physical attendance of the public at court – even in courts that have remained open.

3. What are the implications of virtual proceedings for: (1) access to justice, (2) participation in and fairness of proceedings, (3) transparency and media reporting, (4) adversarial vs inquisitorial styles of proceeding?

Access to Justice; Participation in Fairness of Proceedings

30. Remote hearings do not permit access to justice to those Defendants who have no access to technology or are unable to master the technology required to join in remote hearings. Unrepresented Defendants cannot properly participate; access to justice is denied to them.
31. The problems a defendant on bail may have in joining a hearing, difficulties counsel have in making themselves heard during a hearing, and/or the limited times that they have to access and speak to their clients and/or the technical failings during hearings considerably reduces the effective level of participation in a hearing and so the increased perception  of unfairness in such proceedings.

4. What difference, if any, might virtual proceedings make to the outcomes of cases?

32. It is too early for any reasoned response to be given.

5. What further research or data are required in order to understand the impact of virtual proceedings?

33. This is for others to answer.

6. Are the IT systems in the courts fit for purpose to support virtual proceedings?

34. The overwhelming view of judges sitting in crime is that the IT systems are not and were not fit for purpose to support virtual hearings in meeting the additional demands posed by the pandemic. The general point about how such proceedings were tackled during the initial stages of the lockdown (paragraph 1.6 above) are repeated. Certain court centres report improved performance using Cloud Video Platform – although this is by no means a universal view and other courts report that CVP is “simply not up to the job” – issues remain with CVP including those of audio quality, feedback and the lack of sufficient CVP “rooms”.
35. The issues with IT are many and varied. All judges have reported technical failings and failures which, when combined with either (a) lack of training for staff, Judges and participants or (b) technical incompetence of participants, leads to the conclusion that the court IT systems are, and have been, unfit for purpose and indicate a need for significant investment in both IT and training. We instance a number of issues:-

i. Problems in internet connectivity – both at court and from remote locations. Those looking to join hearings remotely are dependent on the quality of their own domestic Wi-Fi or broadband service – which is variable; this can lead to advocates being unable to connect or losing connection with the hearing and for court staff spending increased time in attempting to maintain such links and/or assisting those who have lost a connection to join the hearing in some alternative way;

ii. Technical incompetence / lack of training of advocates;

iii. Problems with audio and visual quality – with participants unable to make themselves heard or seen and a need to reboot or re-join the remote hearing. Poor audio quality – including interference and feedback is an issue that is consistently reported;

iv. Failings in IT lead to delay and many aborted hearings. Time is wasted;

v. Lack of sufficient computers and other equipment to enable effective remote hearings.

7. Are certain types of case more/less suitable for virtual proceedings? If so, which ones?

36. We set out here the general types of case that are felt to be more or less suitable for virtual proceedings. However in all such cases it must be for the judge who is to hear the case to confirm that the particular case is indeed suitable for such a hearing – and, with the exception of trials, in those cases which are generally felt to be unsuitable for virtual proceedings exceptions can be made in particular cases and for good reason by the judge due to hear the case.
37. Short more straightforward hearings are (potentially) suitable for virtual proceedings. They include

i. Bail applications;

ii. Mention hearings;

iii. Some “straightforward” PTPHs

iv. Some sentencing hearings – where, as at present, a defendant may be sentenced over the video link. However the advantage in the advocate being present in court to have a more effective conference militates against such hearings being fully remote;

v. Custody time limit applications and some other applications involving matters of law;

vi. Unopposed or agreed confiscation hearings.

38. Whether full or partial remote hearings take place should nevertheless be left to the judge – what may appear to be a “straightforward” case may not be.
39. Virtual proceedings are not (generally) felt to be suitable for the following types of proceedings:

i. Trials;

ii. Cases in which evidence is to be tested and assessed – including contested confiscation proceedings; Newton hearings and Appeals against conviction;

iii. Many sentencing hearings – including serious offences, those cases where a victim wishes to read his or her victim personal statement (when support would not be available by counsel attending remotely) and other sentencing hearings that call for the victim or their family and friends to be present to see the defendant being sentenced in person;

iv. Most PTPHs

v. Pre-Trial Reviews where the Defendant’s attendance is required

vi. Contested hearings of some complexity

vii. Some cases involving vulnerable or young Defendants;

40. Whether in a particular case – and for particular reasons a remote hearing is required (whether in full or in part) - should be left to the judge.

8. Should virtual court proceedings continue after the end of social distancing? If so, for what types of proceedings? If so, how might they be used to extend, rather than just maintain, access to justice?

Should virtual court proceedings continue after the end of social distancing?

41. The generally expressed view is that although virtual proceedings have their place and can properly and effectively be operated alongside face to face hearings there is no substitute for the latter type of hearing. Virtual proceedings should not be the default position for any hearing and it should remain open for the Judge hearing any particular case or application to determine whether it was appropriate for it to be conducted remotely – whether in whole or in part.
42. Virtual proceedings and IT – should be regarded as but one tool available to achieve efficient and effective administration of justice. Virtual proceedings and IT should not however be regarded as the panacea of all ills in the criminal justice system. They are not. In general cases proceed more quickly and efficiently by personal attendance of the participants.

If so how might they be used to extend, rather than just maintain access to justice

43. We do not see virtual proceedings extending access to justice. We have concerns as to those Defendants who are vulnerable, with mental disorders or learning difficulties or who are simply at the wrong end of a poor video/audio link have less access to justice than with in person hearings.

9. What legal changes are needed to facilitate virtual proceeding in future? To what extent would the proposals included in the Courts and Tribunals (Online Proceedings) Bill 2017-19 meet those requirements?

44. We make no comment – this is for others to address.

10. What changes should be made to HM Courts and Tribunal Service’s courts modernisation programme as a result of the operation of virtual proceedings during the pandemic?

45. The pandemic and the experience of virtual hearings has highlighted the need for investment in and provision of high quality IT equipment and video conferencing platforms to enable the effective conduct of those hearings that require to be conducted remotely. Such IT should be accompanied by proper training of judges and staff and the employment of fully and professionally trained IT managers at each court centre. In addition more staff are required to both arrange set up and run remote hearings. Staff cuts are not compatible with increased use of remote hearings.

PHYSICAL PROCEEDINGS AND JURY TRIALS

11. What measures are required to maintain the safety of people attending courts in person? Is the courts estate capable of providing socially-distanced justice?

What measures are required to maintain the safety of people attending courts in person?

46. This is for others with specialist knowledge to assess and make recommendations.

Is the courts estate capable of providing socially-distanced justice

47. Courts were not designed nor built to accommodate jury trials with social distancing in place. Different courts have their own different and particular issues to face when looking to accommodate jury trials within social distancing guidelines – whether these relate to (a) court lay out or (b) means by which to move jurors within the court building. Almost all court centres face the problem of more than one court room being required to facilitate a single trial. Reductions in the levels of social distancing may, or may not, free up more courts but much depends on the design of each court.
48. There remain particular issues with trials of 3 or more Defendants. The need for social distancing means that most courts are unable to accommodate multi-handed trials with Defendants present throughout. These are often serious and long trials that either cannot be heard or are being very much delayed.
49. The issues of social distancing – for jurors and defendants – necessarily means that less trials can be heard within the current court estate. Such trials that take place will take longer – given the particular issues posed to maintain social distancing (swearing a jury panel may take over an hour) and breaks to ensure proper cleaning of court rooms between witnesses.
50. The need for social distancing has other impacts on the progress of trials – including (a) the number of witnesses able to use witness suites and be supported by victim support (b) the numbers able to be present in a court video suite at any one time. These issues will vary from court to court depending on the individual layout and design of any one court building.
51. Although the current courts estate is capable of providing socially distanced justice for those trials taking place at any one time the need to implement measures to ensure social distancing means that fewer trials can be heard and cases will be delayed. The courts are running at one-fifth of their capacity compared to pre-pandemic. Justice on a wider level will not be provided by the existing courts estate whilst social distancing measures are in place.

12. What are the implications of virtual proceedings for the programme of courts modernisation and court closures?

52. The impact of the pandemic (as opposed to the implications of virtual proceedings) has demonstrated that there is a need for more properly equipped, flexible, modern court space and not less. The experience of the virtual proceedings has demonstrated the need for higher quality and better performing IT – but equally the importance and effectiveness of in-person hearings.

13. Is there a case for changing the number of jurors required for trials to ensure that cases progress and social distancing can be maintained? If so, what is the minimum acceptable number of jurors?

Is there a case for changing the number of jurors required for trials to ensure that cases progress and social distancing can be maintained?

53. Yes –there is a case to reduce the number of jurors to allow more cases to progress and social distancing to be maintained.
54. In recognising that such a case can be made out nevertheless there are also firmly held contrary views that there should be no reduction in juror numbers particularly in cases carrying a life sentence. Any reduction would make it less likely that the resulting jury accurately reflects the diversity of the population. The necessity for, and timing of, any reduction in juror numbers should be a measured assessment when considered with other options for progressing trials by adapting and modifying the existing courts estate and sourcing alternative venues.
55. A reduction in jury numbers, whilst alleviating the current issues, will not resolve the increasingly pressing issue presented by multi-handed cases where social distancing cannot be maintained whether in the dock and/or the court cells.

If so, what is the minimum acceptable number of jurors?

56. Views differ as to what is the minimum acceptable number of jurors. The precise number is an issue for government. 
57. The issue with regard to greater numbers (on a reduced jury) is whether this would achieve any significant increase in the number of courts able to hold trials and maintain social distancing.
58. The issues with regard to lower numbers (on a reduced jury) include the public perception as to the legitimacy of the verdicts and whether such verdicts should be unanimous or by a majority. The lower the number of jurors the stronger is the need for unanimity.

14. What are the benefits and risks of replacing juries with judges for some types of case?

59. Whether certain cases should be tried by judge alone, 3 judges, 2 judges and one magistrate, or by one judge and 2 magistrates is ultimately a political decision for others to make. It would not be appropriate for the COCJ to express an opinion on behalf of its members. We simply list the potential benefits and risks of such a course without providing any opinion on them.

Benefits

• Speedier conduct of trials.

• Reasoned decision given – whether orally or in writing.

• Increase in trial capacity

Risks

• Public perception of justice achieved by trial by one’s peers will be undermined;

• Loss of the diversity and range of opinion that is provided by random selection of jurors drawn from the area local to the trial;

• Trials perceived to be heard by “case hardened” judges (or magistrates) lacking in diversity;

• A fundamental constitutional right will be extinguished without proper debate and analysis of the evidence – by for example a Royal Commission

• Fact finding decisions delayed to allow for the making of reasoned verdicts. The time to be allowed for reasoned decisions to be prepared would itself prevent a judge starting a new trial whilst one jury is in deliberation. Such delays are likely to be greater if judges are required to discuss and draw up reasoned decisions with lay magistrates.

• Increased appeals and delay in finality.

• Additional stresses imposed on judges as tribunals of fact.

PROGRESS OF CASES

15. What types of case are proceeding, both physically and virtually, during lockdown? What types of case are not making progress and what are the implications of that?

What types of case have been proceeding physically and virtually during lockdown?

60. We have dealt with this above.

What types of case are not making progress and what are the implications of that?

61. The only type of cases not now making effective progress through the Crown Courts are Jury Trials. Such trials that are taking place are generally short (no more than 2 weeks) involving a single Defendant.
62. The implications are:-

• Trials are delayed;

• Defendants will be kept in custody for longer than necessary;

• Witnesses lose interest.

• Delay affects recollection.

• Victims of crime do not have their cases heard in time.

• Prosecutions may be dropped.

The cumulative effect of all these matters is to undermine faith in the justice system.

16. What types of case should be prioritised during the pandemic?

63. Resident Judges prioritise trials in accordance with the interim guidance issued by the President of the Queen’s Bench Division on 12th May 2020. That guidance sets out the following factors to take into account:

• Factors which are always considered include (but are not limited to) –

• Whether the defendant is in custody and, if so, the date when the CTL expires and whether there has been any extension of the CTL;
• The nature, seriousness and date(s) of the offence(s) charged;
• The age and/or vulnerability and/or mental health issues of a defendant, victim, complainant or witness;
• The availability of a judge authorised to try the relevant class of case;
• The availability of instructed advocates.

• Factors relevant to practicability include (but are not limited to) –

• The number of defendants (it is likely to be easier to observe social distancing if there is only one defendant than if there are two or more);
• The realistic time estimate, taking into account the changed circumstances in which the trial will be heard (whilst social distancing requirements and restrictions on movement continue, it is suggested that in general, no trial should be undertaken which cannot reasonably be expected to be completed within 2 weeks);
• The number of witnesses who will be required to attend, their ability to travel to and from the court, the nature and extent of any special measures which have been ordered or are likely to be ordered, and any requirement for interpreters or intermediaries;
• The volume of documentation which the jury will need to consider, and the extent to which they will need to examine exhibits;
• The number of persons who are expected to want to attend court to observe the trial (a high-profile case which will attract much public interest may be difficult to accommodate).

17. What effect has the pandemic had on the large backlog of criminal cases and what are the consequences of this? How should the backlog be addressed?

What effect has the pandemic had on the large backlog of criminal cases and what are the consequences of this

64. There was a large backlog of criminal cases prior to the pandemic and the introduction of lockdown on 23rd March 2020. It is not appropriate for the COCJ, in response to this committee, to comment on the reasons behind such a backlog.  However it is a fact that the number of sitting days had been drastically reduced resulting in trials not being heard. We note that any steps that are now taken in response to the additional backlog caused by the pandemic should be measured with that in mind.
65. The pandemic and in particular social distancing and the consequential public health measures that are required to be put in place have made it impossible for the courts estate to manage and progress jury trials in the way that they would otherwise have done. Cases that were already waiting to be tried continue to wait; those that have come forward since the lockdown was imposed add to this list.
66. The consequences are that cases that were already delayed are now further delayed with the effects set out above.

How should the backlog be addressed?

67. This is for others to address and for the judiciary to implement but the following areas may be considered (in no order of preference):-

i. reduction in the number of jurors to allow for social distancing;

ii. the sourcing of larger buildings to allow trials to be conducted so as to comply with HMG guidelines on social distancing combined with an increased number of sitting days; increased use of recorders and recruitment of extra staff;

iii. to explore physical adaptations and alterations to existing courtrooms to allow trials to be conducted so as to comply with HMG guidelines on social distancing;

iv. identifying and bringing back into operation courts that were listed for closure but have not yet been disposed of;

v. where appropriate temporarily relocating the trial of civil courts to other public buildings so allowing jury trials to be conducted in those vacated court rooms;

vi. trial by judge alone;

vii. increased funding of all aspects of the Criminal Justice system;

viii. building more courts.

Civil jurisdiction

Virtual Proceedings

Q1 How effective are virtual court and tribunal proceedings? What are the benefits, disadvantages and challenges of virtual proceedings?

68. In general, virtual court proceedings work very well.  Video is far more effective than telephone.

Benefits

69. Courts have been able to continue to operate during the pandemic, although with face to face hearings being resumed, this issue assumes less importance.
70. Since parties do not have to travel to court there may be some savings in time and expense.

Disadvantages

71. Costs savings cannot be assumed.  Some professionals report that preparation for remote hearings can take longer and that the preparation of e-bundles can be more expensive than paper bundles.
72. Judges need at least two screens and preferably three.
73. There is more work for the staff to do.  They have to collate contact details for all of the participants, send links to them and generally “hold their hands”, especially for the lay participants.
74. It takes a long time to set up a hearing – waiting for the participants to join, then joining the Judge.
75. Conducting a remote video hearing is more tiring.  All judges appear to be saying that there have to be breaks factored in.  In general, less work can be done.  Some Judges report a maximum of 4 hours screen time per day is enough.  Some report headaches after a day’s session in front of the screen.
76. Remote hearings take longer, not just because of the need for breaks and delays in setting them up, but because of failings in technology etc – see below.
77. Assessing witnesses by video is not satisfactory as in person, and is very rarely appropriate by telephone.
78. Lay participants rarely have appropriate hardware and software to be able to participate effectively.  The general experience has been that lay persons at best have a smart phone only, and many have told court staff that they are unable to access Skype.  It remains to be seen if the CVP roll out improves matters.  Electronic document management is virtually impossible for them.
79. There is a perception and indeed a real risk of unfairness.  Eye contact is difficult and lay participants feel disadvantaged because their hardware and software is unlikely to be optimal.
80. The provision of assistance to lay persons such as via Support Through Court and (at Central London) the CLIPS scheme during the hearings is at best extremely difficult and usually impossible.
81. McKenzie Friend support can be similarly challenging by reason of social distancing.
82. The whole experience is less formal.  The hearing is harder for a Judge to run.  People talk over each other.  Lay participants can be less respectful and can be disruptive.

Challenges

83. Provision of an adequate number of properly qualified digital support technologists for both Judges and staff.  The current system of appointing Digital Support Officers (DSOs) from existing court staff results in the provision of enthusiastic amateurs who are often unavailable due to them being engaged in their general duties.
84. Provision of hardware to Judges, especially screens, both in Court and at Judges’ homes to facilitate home working.  Those with DOM1 laptops in particular seem to have had more technological difficulties than those with Open Builds (see (19) and (20) below).
85. Provision of adequate training for Judges and staff.
86. Provision of adequate staff support for Judges.  This is woefully lacking at present.
87. Reliability of the technology, especially connectivity to the internet at court centres.
88. Dealing with technology failures.  Participants have difficulty joining.  Participants frequently drop out, video screens freeze, audio fails.
89. Compilation and managing electronic bundles.  With some notable exceptions the professionals have yet to master compilation skills.

Q2 What is the impact of virtual proceedings on (1) litigants, (2) lawyers, (3) judges, (4) court staff, (5) media, (6) the public? What support is available to them and what is required?

Litigants, Lawyers, Media & Public

90. Generally, see above.
91. Every court list should contain an invitation to media and public to contact the court if they wish to observe a remote hearing.
92. The general view of the Profession seems to be that evidence-based hearings should be conducted face to face.

Judges and Court Staff

93. Again, generally see above.
94. Judges feel seriously under supported by reason of staff shortages.  They are having to do far too much of the work in setting up remote hearings.  That is not a sensible use of an expensive resource.
95. It is worth repeating that Judges feel extremely tired after conducting remote hearing

Q3. What are the implications of virtual proceedings for: (1) access to justice, (2) participation in and fairness of proceedings, (3) transparency and media reporting, (4) adversarial vs inquisitorial styles of proceeding?

96. Only a limited response is appropriate.
97. For litigants in person, “access to justice” is dependent upon “access to technology”.  The same is true of ability to participate in proceedings.
98. The perception of unfairness does exist.

Q4. What difference, if any, might virtual proceedings make to the outcomes of cases?

99. It is too early to make sensible observations, other than that assessment of witnesses may be more difficult and that serious delays because of technical difficulties might render unfair an otherwise fair hearing.

Q5. What further research or data are required in order to understand the impact of virtual proceedings?

100. We are not in a position to say.  It may be that the recent HMCTS remote hearings research will provide some helpful data.

6. Are the IT systems in the courts fit for purpose to support virtual proceedings?

101. No.
102. Skype for Business is less stable than Teams.
103. It is too early to say if CVP will be better.
104. In particular, the Outlook system is subject to frequent crashes.
105. The internet connectivity capability in courts appears to be particularly vulnerable.
106. The digitisation of the County Court must be seen as a priority.
107. There seems to be a particular problem with DOM1 laptops (see above).  It is also disappointing that the roll-out of the MeetMe Plug-in (immediate for Open Build) will take 6-8 weeks for DOM1s, bearing in mind the exponential increase in telephone hearings.

7. Are certain types of case more/less suitable for virtual proceedings? If so, which ones?

108. Whether to hold a face to face or virtual hearing must always be a judicial listing decision made by a Judge.  Subject to that:

Less Suitable

109. Document heavy trials with lay participation, although commercial cases, perhaps because the lay participants have better access to and are more familiar with suitable tech, seem to have been more successful.
110. Cases where the credibility of witnesses is of crucial importance.  An obvious example is a Personal Injury trial where it is alleged that the claimant has been “fundamentally dishonest”.
111. Cases with Litigants in Person unless all of them have access to adequate hardware and software (“tech”).
112. Most, if not all, possession cases, but see Q8.
113. Oral examination of debtors as to their means
114. Committal applications.
115. Anti-social behaviour injunctions
116. Most cases where a formal undertaking is to be offered to the Court.

More Suitable

117. Any hearing which does not require live evidence.  Obvious examples include case management applications and appeals.
118. Contested hearings (including applications) where all of the participants have access to adequate tech which do not fall within the category “less suitable”.
119. Cases where one or more of the participants would otherwise have to travel long distances, provided they have access to adequate tech.

Q8. Should virtual court proceedings continue after the end of social distancing? If so, for what types of proceedings? If so, how might they be used to extend, rather than just maintain, access to justice?

120. The full digitisation of the County Court is the number one priority.
121. Virtual hearings must never be the default means of hearing.
122. Subject to those caveats, there is no reason why virtual hearings – particularly telephone hearings for case management and other non-witness matters – should not continue after the end of social distancing.
123. For types of proceedings, see Q7.
124. Access to justice: Many tenants facing possession proceedings do not attend court.  Reasons for this are many and varied.  The distance to court, and poor availability or expense of public transport are certainly reasons.  The ability to attend remotely might be better than nothing, but it must be dovetailed with access to proper legal advice.

Q9. What legal changes are needed to facilitate virtual proceeding in future? To what extent would the proposals included in the Courts and Tribunals (Online Proceedings) Bill 2017-19 meet those requirements?

125. We are not in a position to say.

Q10. What changes should be made to HM Courts and Tribunal Service’s courts modernisation programme as a result of the operation of virtual proceedings during the pandemic?

There is some duplication from Q1:

126. Full digitisation of the County Court.
127. Provision of an adequate number of properly qualified digital support technologists for both Judges and staff.  The current system of appointing Digital Support Officers (DSOs) from existing court staff results in the provision of enthusiastic amateurs who are often unavailable due to them being engaged in their general duties.
128. Provision of hardware to Judges, especially screens.
129. Provision of adequate training for Judges and staff.
130. Provision of adequate staff support for Judges.  This is woefully lacking at present.

Physical Proceedings and Jury Trials

Q11. What measures are required to maintain the safety of people attending courts in person? Is the courts estate capable of providing socially-distanced justice?

131. What measures are required to maintain the safety of people attending courts in person?
132. This is a matter for expert specialist opinion.
133. Is the courts estate capable of providing socially-distanced justice?
134. It depends on the size and design of the individual building.  Experience to date shows that it is not easy.
135. Conference rooms are mostly unsafe.
136. The rooms occupied by District Judges are generally too small to accommodate more than 2 persons.
137. Water and refreshments generally are not available.  Participants must bring their own.
138. In Court buildings with many floors accessible by lifts, it is generally only possible to convey one person at a time in a lift.  This causes delays for Judges, staff and visitors to the building.  Examples include Central London County Court (Thomas More Building, 12 floors), and the Civil Justice Centres in Birmingham (6 floors) and Manchester (13 floors).

139. Q12. What are the implications of virtual proceedings for the programme of courts modernisation and court closures?
140. There is a clear need for court buildings to be flexible in terms of arrangement of fittings generally and provision of amenities for court users.
141. The inadequacy of current provision of tech and proper training for Judges and staff has become acutely obvious.
142. There will always be a need for face to face hearings.  Even if there is an increase in the use of virtual hearings, it is hard to see the scope for court closures.

Q13. Is there a case for changing the number of jurors required for trials to ensure that cases progress and social distancing can be maintained? If so, what is the minimum acceptable number of jurors?

Q14. What are the benefits and risks of replacing juries with judges for some types of case?

Progress of Cases

Q15. What types of case are proceeding, both physically and virtually, during lockdown? What types of case are not making progress and what are the implications of that?

143. The only type of case not proceeding is possession cases, but that will change when the current moratorium on them is lifted.
144. The backlog continues to grow.  Furthermore, Urgent family and criminal work obviously takes priority over non-urgent civil work.  Civil judicial resources, particularly at salaried District Judge level, has been and is being diverted to Family work.  With limited tech and accommodation resources, there is limited scope for the use of fee paid Judges to deal with the Civil work.  The consequence is that the backlog will continue to increase.

Q16. What types of case should be prioritised during the pandemic?

145. On 13 May 2020 an amended list of Civil Listing Priorities was issued by the senior judiciary.

Family jurisdiction

Virtual proceedings

Q1. How effective are virtual (family) court and tribunal proceedings? What are the benefits, disadvantages and challenges of virtual proceedings?

146. Virtual proceedings are effective for the conduct of case management hearings, interlocutory applications, hearing legal argument and delivering judgment, particularly where parties are represented. With unrepresented litigants their effectiveness diminishes. Video hearings are more effective than telephone hearings, provided the platform remains stable (there have been real problems in that respect).  However, telephone hearings are subject to less instability, than video hearings and are more accessible to many of the litigants who are engaged in public law proceedings. Fully virtual proceedings are not effective in final hearings, where evidence is being given by lay parties and witnesses challenged. Hybrid hearings are effective where for example professional witnesses/experts are giving evidence remotely and legal representatives/lay parties attend court.

The benefits are:

147. Courts have been able to deal with urgent applications involving e.g. the protection of children despite restrictions on travel etc.
148. The availability of busy professionals working in other disciplines e.g. medical witnesses/experts can be accommodated more easily than with fully attended hearings. However, prior to the pandemic such witnesses regularly gave evidence remotely by video link. 

The disadvantages are:

149. Reduced capacity. It is not possible with timed hearing slots to list the volume of work previously accommodated in a family circuit judge’s list.
150. Legal representatives cannot easily take instructions from their lay clients to enable matters to be resolved which arise during the hearing.
151. Judges report more matters become contentious during remote case management hearings possibly because the advocates’ ability to gauge the response of the Judge and manage clients’ expectations is diminished.
152. Hearings often take longer as result of problems experienced in setting up such hearings, lost connectivity by participants during the hearing, failures of technology on the part of the court, lawyers and lay parties. There is often delay because of Judges waiting for IT assistance to be provided to enable them to carry on sitting
153. Remote hearings are more tiring for the Judge and the advocates. Concentration cannot be maintained for as long in remote hearings.
154. Remote hearings lead to a higher incidence of aborted hearings which must be adjourned and accommodated elsewhere in busy overcrowded lists.
155. The assessment of credibility is extremely difficult in a remote hearings’ context. Hence the potential for unfairness and miscarriages of justice is likely to be higher.
156. Many Judges are concerned about the inherent unfairness in the conduct of fully remote hearings and concerned about the Article 6 rights of participants.  Almost all judges have considerable reservations in respect of adoption and placement cases being conducted in a remote or hybrid format when the issue at stake is whether children should be removed permanently from their birth families and their status irrevocably (in most cases) changed.
157. The provision of support for witnesses e.g. via Support Through Court (formerly the PSU), a McKenzie Friend, an intermediary or interpreter is extremely difficult, often impossible.
158. Lay parties, particularly unrepresented lay parties, can become disinhibited, more prone to interrupting and argumentative.
159. The procedure is less formal and solemn thereby potentially diminishing the importance of the issues at stake.
160. Managing electronic documents is extremely challenging for many lay parties.

The very real challenges are:

161. The provision of fully trained and qualified IT support professionals in sufficient numbers to support court staff and Judges across multiple courts sitting at the same time.
162. Provision of functioning, bespoke hardware for judges and staff. Many judges are using in technology terms ‘ancient’ hardware.
163. Adequate training for staff to enable them to assist judges effectively.
164. The provision of adequate numbers of court staff. The current levels of staffing in Courts is woefully inadequate and the system is functioning only as a result of the good will public duty ethic and commitment of staff and judges.  Many courts do not have sufficient staff (or licences) to administer video platforms for each Judge; thus hearings are adjourned which are unsuitable for the very laborious BT meet me platform.

Q2. What is the impact of virtual proceedings on (1) litigants (2) lawyers (3) judges (4) court staff (5) media (6) the public? What support is available and what is required?

165. Litigants often perceive virtual hearings to be unfair and debasing.
166. Lawyers report such hearings to be more tiring and less formal.
167. Judges report virtual hearings both fully remote and hybrid to be extremely challenging and the process of repeated interruptions caused by IT failures potentially distracting from the aim both of achieving justice and of justice being seen to be done,
168. The impact on the media is perhaps for other stakeholders to answer but there is no doubt but that the limited transparency which exists in family proceedings has been adversely affected by hearings taking place remote from the court building.
169. The impact on the wider public is for other stakeholders to answer.
170. The nature of the support currently available is woefully inadequate across most of the court estate and more support as above is urgently required.

Q3. What are the implications of virtual proceedings for (1) Access to justice (2) participation and fairness of proceedings (3) transparency and media reporting (4) adversarial vs inquisitorial styles of proceedings?

171. 1, 2 and 3 are dealt with above. In terms of 4, family proceedings are part inquisitorial, part adversarial. Remote hearings are not suitable for adversarial proceedings e.g. fact finding. Assessing credibility and future risk is extremely difficult when witnesses attend remotely. The quality of the evidence of such witnesses is diminished.

Q4. What difference if any might virtual proceedings make to the outcome of cases?

It is not possible at this stage to predict.

Q5. What further research or data are required in order to understand the impact?

172. We are not in a position to offer an opinion

Q6. Are the IT systems in the courts fit for purpose to support virtual hearings?

173. No. None of the systems currently supported by HMCTS is stable and the internet connectivity in the Courts is very variable. The wired connectivity is also subject to overload with multiple users and Outlook regularly crashes requiring repeated reboots wasting precious judicial and court time.

Q7. Are certain types of cases more/less suitable for virtual proceedings? If so which ones?

174. The detail of the answer to this question is included in the above responses. In summary case management/interim direction hearings and legal argument can be dealt with satisfactorily virtually provided all parties are legally represented. Other hearings contested private law, public law and High Court work done by Section 9 judges including Deprivation of Liberty Cases are not suitable to be heard remotely. It is also a concern to the judges that interim care/removal cases in public law are being heard remotely. Such decisions are of the utmost importance to vulnerable parents, sometimes children themselves and not in frequently must be held within hours of a mother giving birth or within hours of a precipitating event of non-accidental injury or death. 

Q8. Should virtual hearings continue after the end of social distancing? If so for what type of hearings? How might they be used to extend rather than just maintain access to justice?

175. Family Circuit Judges would be extremely concerned if remote hearings became the default means of conducting family litigation of any kind. Listing is a judicial function and Judges must retain judicial discretion in terms of the mode of hearings. However, it may be a useful addition to the Courts powers to receive evidence by remote mechanisms when that is the only way in which evidence can be taken. As an additional case management power, it may bring beneficial flexibility and further the overriding objective to deal with cases justly. However, if the support and IT structure in the Court estate is not to be improved in the manner highlighted above a perception of unfairness will remain.

Q9. What legal changes are needed to facilitate virtual hearings in future? etc

176. We are not in a position to respond to this query.

Q10. What changes should be made to HMCTS courts modernisation programme because of the operation of virtual proceedings during the pandemic?

177. There should be full digitalisation of the Family Court, provision of professional IT support in sufficient numbers to enable judges to receive the support needed promptly and avoid wasting precious court time, staff should receive additional training and suitable IT equipment to arrange support and monitor remote hearings whilst they are in progress and judges should receive adequate hard ware and training.
178. Question 11, 12, 13 and 14 do not apply to the family judiciary.

Q15. What types of cases are proceeding both physically and virtually during lock down? What types of cases are not making progress and what are the implications of that?

179. Urgent hearings (interim care, interim removal, Deprivation of Liberty, secure accommodation etc) are being heard as well as case management hearings. Final hearings which can be heard remotely (on submissions) are proceeding as are cases where expert professionals only are giving evidence. Final hearings and fact-finding hearings involving lay parties giving evidence are being held usually in a hybrid format where to do so is fair and in accordance with the Presidents Guidance ‘The Road Ahead’ and Version 5 of The Remote Family Court Guidance. The Family Court was already experiencing unprecedented delays in the system prior to lock down and the scale of the current backlog cannot yet be accurately determined but individual judges are routinely encountering difficulty in listing contested hearings within a reasonable timescale for the child in question.

Q16. What types of case should be prioritised during the pandemic?

180. The President has given guidance on this question and family judges have been following the same.