text: OPINION Justice by AV: lost in transmission? | COUNSEL | The Magazine of the Bar of England and Wales
  23 April 2020 / Author(s): Stephen Simblet QC
  Years ago, I was told the story of a barrister who had required an urgent county court injunction in the days before even fax machines were common. He was sent to the judge's house to make the application in person and had made an arrangement as to what time he would arrive. Upon arrival, he was shown into a sitting room by the judge's wife, who then disappeared, leaving him alone for what seemed an unexpectedly lengthy period. The reason for the delay became apparent when the barrister heard approaching footsteps, then the judge's wife knock on the door to say 'Be upstanding in court,' and to usher the judge into his own sitting room, sporting his full judicial costume. I was reflecting on that story as I began one of a number of telephone and video hearings due to take place over the next few weeks as the coronavirus lockdown sees courts introduce a whole range of measures designed to ensure that court hearings, by one means or another, go ahead.
  As is well known, no new jury trials have started, or will start, at least for the foreseeable future. It seems to be understood that the presence of the parties, the witnesses and crucially, the jury in the courtroom is vital and that the proceedings cannot properly operate otherwise. The idea that the defendant must be able to confront the witness, although departed from under special measures and other modifications, remains an important idea in the criminal trial process. In other proceedings, that has not been the case. There has been a plethora of practice directions and other guidance. Some are very detailed. The Remote Access Family Court (version one, dated 23 March 2020, extended to over 32 pages and as I write, it is now 49 pages). This recognises the general importance of court-based resolution, albeit with the 'cardinal operational principle' to 'Keep Business Going Safely' whilst seeking to replicate as far as possible in the context, the 'live' court process – rather than, for example, only resolving cases fairly. Some of the proposed practices raise fundamental questions about substantive issues, eg procedures being suggested in the Court of Protection in circumstances where it is impossible personally to visit those lacking capacity to ascertain their wishes and feelings, or in the First Tier Tribunal (Mental Health) where not only is it being suggested that hearings take place without the tribunal including a psychiatrist or its additional member, but also that there is no formal psychiatric input from anyone other than the clinician in charge of the patient's detention (see the pilot practice direction).
  While these are emergency measures, the Ministry of Justice may perceive opportunities to save costs, and judges find ways to reduce their attendances in a courtroom. To what extent should we, as advocates, be supportive of those measures? To what extent should we oppose their introduction? Are there some hearings that work better that way, or where certain advantages to the parties and their lawyers outweigh the disadvantages?
  The starting point is that this country has always had a tradition of oral advocacy, taking place in a courtroom. When the Bar, government and senior judiciary make claims in relation to the quality of the administration of justice in this country and the suitability of its legal system to resolve disputes, it is that which they have in mind. The Russian businesspeople and Middle Eastern sheikhs to whom the English courts are being marketed for resolution of legal disputes have that image firmly in mind. What they expect to see are barristers, preferably robed, Rumpole-style, in front of judges in a courtroom. It is that idea, that there is a court that will resolve a dispute if it gets pushed that far, that is fundamental to our ideas of what justice is, and is particularly important to our notions of adversarial justice, where parties expect their side to be able to influence the judge (or jury).
  It is fair to say that in much of the work that I do, the opportunity to avoid the court, to settle the case, is in mind throughout. However, what ultimately leads those cases which settle end up with that is the thought that not settling involves going along to a court and having the matter determined following a rigorous process of fact-finding and resolution of competing legal arguments. Accordingly, it is the idea of the judge, or the court, that is fundamental to our tradition of dispute resolution.
  It is important to acknowledge, therefore, how different a video hearing can seem in that process. Unlike the courtroom, with recognisable placings of judge, witness, jury, the parties' lawyers and, in the case of a criminal courtroom, the defendant, a video or phone hearing changes hierarchy and status. The judge, on a Skype-for-Business hearing, is just one of the little boxes of heads, like a character in Celebrity Squares, or alternatively, displayed across the screen, like Zordon in Power Rangers. And that is, at best. In a hearing in which I was involved the other day, the judge turned off his camera, so was in the hearing only by audio. On reflection, this is something I consider should be argued against.
  It is obvious that some of the seeming importance of a court hearing is removed through these sorts of processes. Instead of there being a courtroom, and the authority of the court being brought about through the solemnity of the exercise, the video or audio hearing brings a degree of informality which can easily elide into disrespect to the issues at stake and their importance to the parties. There has been much discussion recently of A Clinical Commissioning Group v AF & Ors [2020] EWCOP 16, a case that was conducted, with experts and witnesses, over three days, entirely via video link. This was in the early days of this new era, and a number of the lawyers involved reported how well they thought it went. In one blogpost, barristers representing CCG considered it to be 'plain sailing' once the link had been established ('for us as lawyers, it felt comfortable and familiar relatively quickly'), that from a legal perspective nothing critical had been lost, and phone communication was free for the equivalent of notes being passed.
  The witnesses, however, found their evidence-giving more difficult. It is important to remember that this was a Court of Protection case involving very profound issues, namely the right of a man to be allowed to die by refusing nourishment through a PEG device. Following the hearing, a blog published by The Transparency Project expressed how removed the man's daughter felt from this process. Her distress was that much of the focus of the hearing moved from the serious subject-matter to how the technology might work, and how the informality of the working arrangements also impacted. Some of the legal journalists covering the case seemed to be as interested in what was in the advocates' homes, visible through their webcams, as the life or death issues about which the hearing was concerned.
  In a case in which I was involved the other day a number of people who wished to attend court, and who would have done if there were a hearing, were unable to participate. They simply could not get the technology to work. This included unrepresented people whom the other side were wishing to join to their proceedings. Furthermore, being involved in the representation of a large number of people in that claim, it was simply impossible for some of the lay clients to pass useful instructions within the sort of timeframes and by the sorts of means that are practicable. There was no real possibility of a note being passed, let alone having the sorts of meetings or discussions that would normally take place at and around a court hearing. The very methods that were thought to be so easy for the barristers involved in the AF hearing, namely leaving a Skype meeting open for three days, are exactly the sorts of methods that make it impossible to have any sort of private discussion, whether between advocates and solicitors or, as would normally be expected, lay clients as well. There is also the problem that nobody knows whether a conversation is, or is not, private. All of these things are important.
  Although in the age of skeleton arguments, agreed bundles and rules about exchange of authorities one should expect the court and the parties to be working from the same materials, there are often last-minute and additional documents that need to be provided. The audio-visual hearing provides no mechanism for actually seeing that the judge has the material, or being able to 'hand up' an authority or a document during the hearing itself. No doubt it is possible to email things during a hearing, but only if they are already in digital form. Essentially, the effect is to shut out all but the bravest of advocates from being able to rely on the late authority or additional document, and even then, particularly where a judge is not enabling the videocam, not to have any confidence that the judge is looking at the right part of the document or has even received the right document, even though e-filed.
  This brings me on to my next point. A fundamental purpose of the adversarial system and oral advocacy is the maintenance of belief in the possibility that people can be persuaded by what they have heard in court, whether that be evidence or submissions. The audio and video hearing do not afford the advocate the same opportunity to persuade, where, even at a minimum, the advocate may have no idea of the judge's reaction to their submissions. Megarry J's famous quote from John v Rees [1970] 1 Ch 345 still has resonance:
  'As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence events.'
  For all of these reasons, and while there may be good reasons for some hearings to proceed using new technology, nobody should assume that this is always going to be satisfactory. It will not be satisfactory because clients will not consider it to be so, and many will find that they have less access to justice. Ultimately, all of this matters. It is as much about fairness as it is about the outcome of the case. In R (Le Page) v HM Assistant Deputy Coroner for South London [2012] EWHC 1485 (Admin), a family unsuccessfully sought judicial review of a coroner's decision not to call a particular expert witness at an inquest into the death of a young woman who had died in police custody. HHJ Thornton QC pointed out that it is not just the effect on the outcome that a witness might have that is important:
  'It was not unlawful to refuse to call him. But in all the circumstances it might have been better, not as a matter of law but as a matter of practical justice. As Brown LJ observed [R v Inner West London Coroner, ex parte Dallaglio [1994] 4 All ER 139]... citing Bingham LJ in a natural justice context in R v Chief Constable of the Thames Valley Police, ex parte Cotton [1990] IRLR 344, 352: 'This is a field in which appearances are generally thought to matter'."
  Practical justice may well involve presence: the fact that the judge may have to look parties, or their loved ones, in the eye while in court can itself be a powerful part of a case. A judge sitting on the end of a telephone line, or as a disembodied floating head on a video call, may not feel the same responsibility for their decision as they might were they in court. This is even more so if the parties are not even visible.
  And this brings me to my final point on why the loss of the physical courtroom matters, and that is its effect on the unsuccessful party. It is often the case that someone disappointed by the outcome of a court case is at least comforted by the fact that the judge listened to what was being said and that their advocate tried their best. Indeed, when one reads promotional entries for barristers on chambers' websites, a recurrent theme is their commitment to their clients. That impression of the advocate having tried their best is very much diminished by the absence of their attendance in an actual courtroom. Marshall Hall would have been rubbish on Skype.
  There is a strong common law tradition of oral advocacy, and an equally entrenched common law right to a fair trial which is underpinned by Article 6 of the European Convention on Human Rights and the Human Rights Act 1998. Remote hearings do, in many cases, reduce the effectiveness of that right and of the ability of parties to participate in hearings, or to have faith in their outcome. If we regard our roles as important to proceedings and to our clients, and perhaps more philosophically, if we care about the rule of law and respect for it, we should resist the long-term imposition of these moves. The judge in my initial anecdote, bewigged and robed in his sitting room seems ridiculous. However, the idea that important hearings will instead of taking place in court will instead be resolved by anonymous figures blinking into a webcam from their kitchen, living-room or shed, is a worry. The Bar should be resisting this where possible, as we are advocates in an adversarial system designed to support the rule of law.
  Practical considerations for the short term
  While coronavirus makes physical hearings impossible, I conclude with some practical considerations before agreeing to or conducting any video or audio hearing: (1) How urgent is the hearing? Can/should it wait? (2) Ask your client to consider how they would feel if they lost after such a hearing. (3) If a hearing is to go ahead by phone or video, how will your client participate? (4) How will you take instructions, or give advice? Conversely, how will you avoid being overwhelmed with instructions/observations when trying to make/respond to submissions? While it is possible to arrange/conduct conferences on Zoom etc, can this be done alongside other hearings? (5) How robust is your internet connection, or that available to others? (6) Can you insist on the judge being visible to all who need to see them? If not, what effect does that have? (7) How will the other legal participants come across? To what extent will meowing cats, ringing doorbells, or background decor affect the hearing – not just substantively, but impressionistically? (8) Have you a reliable system for ensuring that the judge is working from the same materials? (9) How will people with an interest in the case, be they accredited journalists or anyone else, be able to watch it?
  All of these require consideration both in advance of the decision whether to support the holding of a remote hearing, but also ahead of the hearing. If these considerations are not properly thought about, then you risk being in proceedings that leave dissatisfaction due to the technological way they have been conducted.