27th May, 2022
Remote Hearings – Access to Justice Improvement or Constraint?
The COVID-19 pandemic has had a great impact on the judicial process in the UK. With the world’s widespread increased use of electronic video platforms for meetings, gatherings, quizzes etc. to take place from the safe distance of our own homes, the courts and tribunals have kept up, with the use of the Cloud Video Platform to allow for hearings to take place remotely while participants could not travel or attend court or tribunal hearings in person. Whilst this service existed prior to the pandemic, its uptake was slow. However, the lockdown sparked a technological innovation which enabled courts and tribunals to continue to operate.
Now that restrictions have been lifted, it is for judges to decide on a case-by-case basis whether it is suitable to hold cases as a remote hearing based on the interests of justice and the facts and circumstances surrounding a particular hearing. But what is currently uncertain, is whether remote hearings improve access to justice or place constraints on it.
Remote hearings enable justice unrestricted by physical location, remove the need to travel, can reduce the worry of being in the same room as other participants in the hearing (who they may be in conflict with), and not having to be physically present in a court of tribunal building can reduce stress.
However, the details of a particular case, the nature and complexity of the hearing and any information given which might affect the hearing taking place by video, particularly for those who require interpreters or additional support, may result in an in-person hearing being better suited. Internet access is also an issue which can create notable limitations or difficulties during hearings. Remote hearings can make it more difficult for parties to consider witness expressions (particularly when a participant’s camera has frozen), cross-examinations can feel disjointed, and the natural flow of a hearing can be severely disrupted when a party’s connection drops out. There have also been issues with informality.
In December 2021, HM Courts and Tribunals Service published an evaluation of remote hearings (https://www.gov.uk/government/publications/hmcts-remote-hearing-evaluation). This evaluation found that:
“Public users felt they were typically able to understand what was happening during their hearing (79%), understand the outcome of their hearing (81%), express their views in their hearing (59%) and felt that their views were considered (59%). Those attending a remote hearing were more likely than those who had attended in-person to agree they were able to express their views (62% compared to 55%), and that their views were considered (61% compared to 56%).”
The evaluation report commented directly on the experience of judges sitting in tribunals, as follows:
“Judges sitting in tribunals were generally more positive about the use of remote hearings compared to other jurisdictions. They were more likely to report satisfaction with training and guidance on remote hearings, more likely to be satisfied that requests for reasonable adjustments and special measures can be met for remote hearings and more likely to consider that remote hearings can create a comparable environment and deliver procedural justice. They were also more likely to consider that remote hearings could be an acceptable alternative for certain types of cases post pandemic.”
For now, access to justice has been provided for in the best way possible during very unprecedented times. However, there is undeniably room for change and adjustments to the current format of remote hearings if their use is to continue to remain so prevalent within the UK’s Legal System.
Looking forward, it can be envisaged that general principles may be developed for different hearing types, whereby some are automatically listed for remote hearings and others automatically listed for in-person hearings, subject to judicial discretion. However, research suggests that it may be beneficial for clearer rules and guidance to be established as to how remote hearings should be conducted to ensure consistency, fairness and access to justice across the court system.
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