Coping with Covid in the criminal and family courts

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Posted by Milad Shojaei, a county court advocate with LPC Law and strategy & engagement director at Legal Futures Associate Casedo

Shojaei: Open justice fears

The legal sector has historically resisted change, with the judicial system only gradually implementing technology to improve its efficiency. Its approach has changed in light of the Covid-19 outbreak, as we see extensive development in the legal tech landscape.

The courts system is now moving forward with more effective systems, adapting as quickly as possible to face the impacts of lockdown.

The Coronavirus Act 2020 came into force on 25 March in response to the pandemic. A principal provision of the Act serves to expand the availability of video and audio links in court proceedings. The newly implemented measures are comprehensive and enable several hearings to take place remotely.

The criminal justice system:

The Act has amended existing legislation and HMCTS has brought in new platforms to allow parties in criminal hearings to take part remotely. This has undoubtedly helped during these unprecedented times.

However, the logistical challenges were more significant than anticipated. The magistrates’ court has a higher volume of cases and has always resisted the use of technology to date, making it ill-equipped to get to grips with case management at the necessary speed.

The result of this is clear – the courts are incapable of handling the pre-lockdown volume, and legal professionals are pressured with occupational stress now more than ever. With this said, HMCTS should consider integrating technology more widely and meaningfully, to avoid complications now and in the future.

Schedule 25 of the Act includes provisions that enhance public participation in proceedings conducted wholly by video or audio link, and it is at the discretion of judges to direct the recording or broadcast of such proceedings.

On the surface, it seems that this adequately safeguards the principle of open justice, but the reality has been different. The Act overlooked the views, availability and facilities of relevant parties and the suitability of conducting hearings remotely.

In considering the use of telephone and video technology, judges may choose not to exercise their discretion to broadcast proceedings, or when it is clear that those involved in the proceedings are grossly underprepared to participate. Under such circumstances, hearings have been conducted privately, resulting in a lack of transparency that limits public observation of the administration of justice.

Such an abrupt transition to remote hearings will likely weaken the role of the public as observers of justice. Should essential principles of open justice be overlooked due to crisis? The Ministry of Justice disagrees, maintaining that open justice is especially vital during unprecedented times. It is essential that, while we praise the speed by which these legislative changes were implemented, we extend the principles of open justice into the virtual world.

The family courts

In light of the challenges brought about by Covid-19, the family law sector has made a collective effort to ensure the fairness of remote hearings. Nonetheless, its lack of preparation for transitioning into the digital world has been clear.

Particularly pertinent issues have been outlined throughout virtual proceedings in the family courts, where there have been concerns as to the difficulty of ensuring just court process.

Major apprehensions regarding the lack of face-to-face contact are at the forefront of recent debates. As much of the work carried out in the family courts relies heavily on body language, remote hearings obviously fail to facilitate this. The ability to observe parties both in and out of the court is a crucial tool for Judicial analysis.

The Nuffield research commissioned by Sir Andrew McFarlane, president of the Family Division, observed that legal professionals have struggled to retain the necessary empathy and humanity required to conduct hearings effectively.

Many litigants in person also told Nuffield that they have limited access to the technology used to conduct remote hearings. This is particularly problematic across public law hearings where barriers to participation are already challenging.

Those who are aware of their technical limitations have opted in favour of telephone conferences, and there has been a learning curve for legal professionals engaging with new technology. With this said, it’s clear that innovation should have been implemented sooner rather than later. The sector could have made this adjustment during a more appropriate time, rather than during a global crisis.

Many lawyers have also highlighted challenges with preparing electronic bundles. The legal sector’s lack of preparation and inconsistent application of e-bundles has always been an issue, and is now aggravated by the pandemic.

Worse yet, where paper bundles are required, there will inevitably be conflicts with the guidance on social distancing. Given that the current circumstances limit the capacity to print and distribute bundles, advanced collaboration tools should be favoured.

Working paperlessly has been an ideal alternative for many. Now that it is a safer one too, should the legal sector consider driving the initiative home?

More work to be done 

If the justice system had considered the setbacks associated with a digital transition prior to the pandemic, we would undeniably have more meaningful solutions in place for the emerging difficulties.

The present issues regarding remote proceedings in criminal and family courts demonstrate that our legal system, unless properly reconfigured in response to the global crisis, cannot provide a suitable model going forward.

As the confidence that legal professionals and the public place in technology is curtailed with each emerging challenge, we must tackle unresolved issues within the sector, whilst carefully considering technical solutions to problems that can emerge in the future.