Tristan Kirk – written evidence (CIC0042)

 

House of Lords Constitution Committee

Inquiry into the Constitutional Implications of COVID-19

 

 

 

  1. I am the courts correspondent for the London Evening Standard newspaper. I have been working as a courts specialist since 2012, and joined the Standard in 2016 to cover cases across the capital’s courts and tribunals. I am also a member of the Ministry of Justice’s working party on media access, I am a member of the High Court Reporters Association and lead an informal network of court reporters around the country as a conduit for issues and ideas that might promote open justice.
  2. During the pandemic I have maintained court coverage, apart from a period of furlough in April and early May, and have been using the virtual and remote options extensively during the last few months. I hope that I can offer a useful insight into the experience of reporting the courts in this way.

 

What is the impact of virtual proceedings on media & the public?

 

  1. The first point I would like to say is that the views of the media and of other professionals using the courts, including lawyers, may often align. But it’s important to bear in mind that the reasons behind those views can often be quite different. The media has a separate and distinct voice that I believe needs to be heard in the debates surrounding how the courts will be run post-pandemic.

 

  1. This is an important consideration for any regular court reporter, especially one trying to cover a number of different courts.
  2. If able to join a hearing remotely, that could mean covering by virtual means a preliminary hearing or update for a case you are following while physically attending another courthouse where a trial is sitting.
  3. In the last few months, virtual hearings have been invaluable in enabling reporters to work remotely in the context of the pandemic. In the future, they could be transformative in improving transparency in the court system.
  4. A working example might be the best way to get this point across:

9.30am Woolwich crown court, plea hearing in a burglary case

10am Harrow crown court, further case management in a murder case

10.30am High Court ruling in a civil dispute

11am Isleworth crown court robbery trial.

  1. If required to attend all of these in person, I could attempt the 9.30 in Woolwich and arrive late for the Isleworth trial. With virtual attendance, I could easily cover all four. I hope the benefit to open justice is obvious, and is surely something we should strive to make a permanent reality.

 

  1. One of the most important aspects of court reporting is finding out about cases, and deciding which hearings to cover. This is achieve in a multitude of ways, but a key tool could be virtual hearings. This is interlinked to the above point about reducing travelling time - to be able to drop in virtually on a hearing in a case that you don’t yet know the details of would be invaluable. It would be the technological equivalent of walking into a courtroom and sitting down for a few minutes, you could hear what the case is about, a little of the legal discussions, and decide if it’s one to follow, without taking up a valuable chunk of your day. 

 

  1. I am enthusiastic about the possibilities of virtual hearings, particularly in the areas of open justice and transparency, but I’m also a fervent believer that post pandemic most of my work will continue to be done in the courtrooms, in person. On a virtual hearing, almost all of the personal interaction between the reporters and the barristers, as well as the court staff, is lost. This is an important part of the job, checking facts and spellings, learning a little more about the case you are covering, and possibly picking up tips on other cases to follow. In the creation of the Covid-19 remote hearings, no time has been factored in for the media to do this essential part of their job. In some cases, the clerk ends the call as soon as the judge says the final word so there is no chance for you to interject to ask a question, check a fact, or even to contribute something more substantial such as an issue with reporting restrictions. In other cases, reporters are only permitted into the call as the judge is walking on to the bench, so no preliminary enquiries can be made. I made submissions to the MoJ working group that time should be built in to court proceedings in the digital workspace for the media to do essential tasks, but that suggestion has not yet been taken up.

 

  1. This is the trickiest area so far for journalists working remotely, as there has been a historic lack of work on improving the way the media accesses court documents and no effort at all has been made formally so far to enable it in the covid-19 circumstances. In the criminal courts, seeking the defendant’s personal details (name, date of birth, address) is a basic requirement, as is seeing the charge sheet or indictment. On a virtual hearing, you are relying on the benevolence of a clerk to engage with you by email. Giving a single example, in a case I covered two weeks ago the clerk did not send me the indictment until three days after the hearing, which creates an obvious problem in the world of court reporting where immediacy is vital. The issue of access to documents is heightened in the civil courts, and again reporters are having to rely on back channels and the generosity of others to get by. No official system has been established.
  2. An idea the committee could explore is regular media access to the Common Platform, where journalists could log in to the digital case system to see basic information about a case. It’s an idea that has already been made to the MoJ, something that would be befitting of a 21st century court system, and no one yet has told me if they see any insurmountable issues with it.

 

  1. I won’t dwell on this, other than to echo what I imagine others have said. The quality of the sound and technology in use in the courts at the moment is not good enough. We should be striving for better. It far too often cuts out, is not of sufficient quality, and for reporters every word is important and it’s vital that we are able to hear properly. To fix this would need an injection of funds, but it would be worthwhile. Courts have also been relying a little on BT-meet phone technology to get a semblance of open justice. The quality of sounds on these calls is simply not good enough for court reporters.

 

  1. This is an area where problems are long-standing but have been exacerbated by the pandemic. The listing systems in place in the courts of England and Wales are not fit for purpose, in my view. In a time of crisis in late March and early April, some parts of the system collapsed, which should be of great concern to anyone interested in open and fair justice.

 

  1. Magistrates – reporters rely on court officials emailing the daily lists of cases to them. If they don’t arrive, there’s very little we can do. When the pandemic first struck, the supply of these lists – vital in knowing what the courts are doing – almost dried up completely in London. It showed that the system was entirely reliant on staff who, when stretched to capacity, didn’t send the lists out. Tens of thousands of court cases happened with the media knowing nothing about them, a terrible situation in normal circumstances, but when we were trying to maintain coverage from home, meant in reality that there was no open justice at all.

 

  1. Crown courts – these lists do not show what each defendant is accused of. I believe this would be a good thing to do, to bring a little bit more openness to the system. The usual remedy is to go around the courtrooms asking each clerk or prosecutor what their case is about. Not possible in the context of a pandemic, and something that listings could have been used to remedy.

 

  1. The point about openness of listing is heightened in the civil courts, where some lists don’t even feature the parties’ full names and offer little insight as to what the case is about. It seems peculiar in the 21st century digital age that our courts are still languishing in the past, not embracing the tools available to make details of justice slightly more accessible to the public. I am a firm believer that saying you are offering open justice simply because the doors to the courtroom are open is an increasingly out of date view. If no one attended your committee meetings and the only place where your findings were published was a back office at Parliament, would you consider that sufficient in terms of servicing the public interest?

 

 

  1. When logging in to a virtual hearing, most of the time it works. The MoJ set up a dedicated phone line for journalists in the event of problems arising, and that was a good step. But I imagine eventually that service will be shut down. The problems arise when accessing a hearing remotely does not work, either the technology fails or you are left in the virtual lobby. Unfortunately, calling or emailing a court has been made increasingly difficult in recent years due to cutbacks, so thought needs to go into how does an observer reach out for help when the technology fails. This is a particularly acute point for the media, as unlike a barrister, the judge/court will not stop proceedings simply because the reporter has fallen out of the call.

 

 

  1. I’ve covered some of the individual benefits above, all going towards my view that virtual hearings should become a fixture in the courts when the pandemic has passed.
  2. They encourage more court reporting, they make the job easier, and a reporter dialling in remotely does not compromise the integrity or fairness of the hearing.
  3. In taking this process forward, there should be different considerations for whether a barrister or a reporter can join a hearing remotely. The decision-making processes have to take in rather different factors.
  4. As I said before, most reporters will continue to join hearings in person – there are considerable benefit to actually being in the room. And it is important that the media continues to always have access in-person to all hearings, regardless of how anyone else is joining.
  5. But joining a mention, bail application, plea hearing, preliminary hearing, or a sentence could be done virtually for reporters without interfering with the process.
  6. So far, the status quo has been that if a lawyer is attending remotely, a journalist can do so as well. This should be maintained in the future.
  7. However, it should also be the case that if legal teams are in-person, it is open for a court to allow remote access for a journalist alone. This is an idea that many courts have not yet grappled with.

 

  1. An added bonus to remote technology being in place would be to boost capacity for high-profile and oversubscribed hearings. Virtual attendance should never replace the right of a journalists to be physically in the courtroom, but it could be used to provide a virtual overspill, so more reporters can cover the case.
  2. In the High Court at the moment, we are seeing judges allow only a handful of reporters to attend a hearing in-person and not engaging with the idea of remote attendance. This, in my view, is the totally wrong way to approach these things.

 

 

  1. Thank you for taking the time to consider my views.
  2. I believe in an open court system, and think that in this time of crisis there are actually many positives that could be found for the justice system, with the right will.