It remains an unfortunate fact that it takes a national crisis or as at the present time of writing a world-wide health crisis to be a catalyst of immediate and wide-ranging change. Never more so, in the predicament that has been faced by the Courts and the innovative ways in which controlling the virus while continuing to function has come to the fore. Most of us speak with optimism about the post- virus period and the return to normal. However, it is the question of normality and the fact we are on the eve of a new and perhaps new kind of ‘permanent normal’ that must be considered.
At the heart of the response to this crisis has of course been a priority in changing working practices and procedures to minimise the risk to the judiciary staff and to those who use the court and tribunal service. It is the word ‘minimise’ and the dawn of a new era which is worth considering. A pessimistic but an increasingly wide- held view, is that even with an effective vaccine developed at (as the American President would state) “warp speed”, this virus is likely to be with us for a considerable time yet. The main reason for this is that even the most effective vaccine will not guarantee a 100 per cent success rate and secondly the virus in various strains may re-emerge for years to come. In short a Covid world may be something we all have to learn to both live and cope with. So, could the ‘temporary measures’ be in fact the new norm all be it enhanced for a permanent solution?
At the time of writing this article a network of priority civil courts have remained open. The work of these courts has been consolidated into fewer buildings where social distancing is possible all in line with existing public health advice. Where essential face to face hearings are needed then since 30th March there has been the provision of open courts to the public for face to face hearings. Staffed courts where staff and judges will work from these buildings but they will not be open to the public but allow essential administration to continue and of course suspended courts which are courts temporarily closed. With so much obvious disruption and a limitation of physical presence, the obvious solution has been to turn to and extend the use of telephone video and online technology and hold as many hearings as remotely as possible.
To this end a protocol has been devised with an emphasis that judges, clerks, the listing office and court officials should all think ahead as far as possible. As a general presumption under the protocol all short or interlocutory applications can be heard remotely while there is also an expectation that some witness cases could be suitable for remote hearings. The technology that is available currently to deliver a remote hearing includes BT conference call, Skype for business, court video link, BT MeetMe, Zoom and ordinary telephone call.
Inevitably it is the utilisation of this technology and undoubtedly its pending acceptance as the new norm which will have the biggest impact on the way matters are heard at Court. For the moment the imperative is the risk of a serious illness. However, when the risk significantly receeds (rather than disappears for good) there will arguably be an irreversible change in culture. It may well be that all cases wherever possible are held by remote means unless there is a compelling reason for a physical presence in court for a hearing to take place. Sounds implausible? Well, since the virus the implausible has become standard practice and more to the point with a few tweaks it will probably work perfectly well. This raises some intriguing possibilities about our future working practices and also whether it is even desirable to return to the pre Covid norm. It can be argued that the advent of the virus could well have catapulted us forward to working arrangements that would have evolved naturally over the next five to ten years.
Of course, and for the moment technology does have its limits and these limits are defined by the confines of court hearings. In the criminal courts Jury Trials by their very nature cannot be conducted remotely. However, if the pace of innovation in the civil courts is leading the way can it be long before the same happens in the criminal courts?
For the current time however we are under emergency measures and as such the way the court system is being run is as follows:
- Priority Courts remain open for essential face to face hearings. Obviously, there is provision in these Courts to maintain the required social distancing. Where parties are requested to attend Court then this will amount to an essential reason to travel unless any party concerned is required to self-isolate because they are symptomatic. Where a person is required to attend and can attend then they should bring the court documentation with them to prove this as an essential reason to travel.
- Once at the Court the party who is attending will be required to maintain the social distance rules and clearly not attend if they are symptomatic.
The logistics outlined above are of course relatively straightforward when compared to the social distancing gymnastics required for a jury trial. New jury trials started on the 18th May following discussions with the Lord Chancellor and all such trials are to take place under special arrangements designed to minimise the risk to all participants including the jurors themselves.
At the time of writing there are four Crown Courts that have been assessed as suitable to hold jury trials and these are the Central Criminal Court, Bristol Crown Court, Cardiff Crown Court and Manchester Crown Court (Minshull St). There is an expectation that another three courts will soon be suitable, and these are Reading, Warwick and Winchester Crown Court.
To say the arrangements that are being put in place take the fullest precaution would not be an understatement. The arrangements that are being put in place include but are not limited to the provision of a second court room linked by close circuit TV to enable the media and others to watch the proceedings. There will be a further court room for jury deliberations while the entrances and exits will remain carefully supervised with increased building and touch point cleaning.
As an added precaution all water fountains and cafes have been closed so any party attending should bring their own refreshments.
As you can see, the sense of emergency has engendered elaborate precautions which, has in essence, all but brought the Crown Court Service to its knees. Again, to reiterate the above there is of course the hope and expectation of returning to “normal” but when if ever in the years ahead might that be? It is quite conceivable that if a full service is ever to be resumed then the criminal courts are going to have to turn to technology to find the answer. Jurors may be on video along with lawyers, indeed the concept of a virtual court room with all of the relevant parties geographically apart but linked by technology could be a possibility no matter how remote of a one that may be at the moment.
Also, there is another intriguing possibility. The emergency engendered by the virus has of course brought about these innovative changes and through the ingenuity of adaptation they will be made to work. The longer the crisis continues the more innovation is likely to follow to streamline the changes introduced. It may well be that should the underlying crisis come to an end that there will in actual fact be no desire to return to the original way of working, particularly if the new way is proven to be more cost effective. What remains a certainty is the fact that necessity is a powerful force of both innovation and creation. While the Covid crisis remains, so the necessity to respond to it will prevail especially with the ever-present fear of further spikes in the infection rate of the virus. As such it is likely that we are on the eve of court room procedure changes and innovation rather than the end.
For more information see https://www.judiciary.uk/publications/civil-court-guidance-on-how-to-conduct-remote-hearings/
Author: Ian Grant