Revolution – Court without the Courtroom: how Tanfield’s private client barristers are adjusting to COVID19
24th March 2020
Remote hearings will be the default position for the foreseeable future and our Private Client barristers are ready and able to litigate using the appropriate modern technology.
Below is a summary of the whirlwind of changes now afoot in our justice system.
Telephone hearings are not new. They have perhaps to date been underused, and they suffer from the drawback of there being a need to book a specific time-slot, which is tricky in a busy court list.
However, they are proven to be effective, and the technology to support them is widespread. According to MacFarlane J[i], 1,022 courts have the facilities to offer telephone hearings via BT MeetMe, Legal Connect, Kidatu and Arkadin. The telephone hearings are recorded and hence transcripts are available if necessary.
Telephone hearings are most effective, on all but the simplest matters, when accompanied by carefully drafted orders, and persuasive written argument. That is where Tanfield’s barristers add particular value.
Video-link and video conferencing
MacDonald J[ii] has summarised experiences of older video links in courts as being “extremely cumbersome to use” and prone to often breaking down or not working correctly.
Four possible alternatives exist:-
- Skype for Business;
- Microsoft Teams;
Skype / Microsoft Teams
Skype for Business has been installed on judicial laptops for some time, and has proven effective recently not just for case management / preliminary hearings but even for a final hearing involving five parties and eleven witnesses, before Mostyn J (see “First all-Skype trial tests crisis working at CoP”, The Law Gazette).
Security restrictions preventing Skype conversations with people who are not members of the judiciary were recently relaxed, and barristers are able to attend court hearings via Skype.
The drawback is that Microsoft, which owns Skype, is in the process of mothballing this product, and replacing it with Microsoft Teams.
This reveals a further problem: the ability of court computers to cope. Older “DOM1” judicial laptops will not cope with Microsoft Teams. However the present judicial laptops have Microsoft Teams pre-installed, and it may be in a matter of weeks or even days that hearings could be taking place using Microsoft Teams.
Sir Mark Hedley and Judd J have successfully presided over cases by Zoom – a fifteen-day trial in the case of Sir Mark Hedley[iii]. MacDonald J is sceptical that funding will be made available to the judiciary to purchase Zoom, but if the court is on the receiving end of a Zoom call initiated by one of the lawyers, then there is no cost to the public purse. However, Zoom will not work on the older DOM1 judicial laptops, and so it is not a universal solution.
Another commercial offering is Lifesize, already used by various barristers chambers, understood to be secure and able to be set to record proceedings. The public purse is spared if the court is “invited” to join a hearing on Lifesize, but MacDonald J has identified that “it is understood that there have been issues with connecting chambers’ Lifesize systems to the video link systems used in the RCJ” [iv].
The future: MOJ / HMCTS Cloud Video Platform
In a matter of weeks, or possibly days, the Ministry of Justice / HMCTS will roll out the new Cloud Video Platform. Tempting as it would be to assume that it will work perfectly straight out of the box, MacDonald J has urged caution[v]:-
- Firstly – there is as yet no consensus as to which of the Smorgasbord of commercial offerings is best suited to litigation, with any of the four major contenders above being more appropriate according to the nature of the case, circumstances of the parties, local resources and expertise. There is a benefit at this stage in maintaining that choice and flexibility.
- But secondly, given the nature of IT roll-outs generally, and the sudden, potentially overwhelming, demand for remote hearings, MacDonald J concludes that the existence of contingencies and “maintaining multiple failsafe redundancies” is valuable, and should be maintained for the duration of the COVID-19 pandemic.
Generally, it is important to bear in mind that video hearings will need bandwidth of at least 1.5 MBPS in both directions, and as MacDonald J points out[vi]: “it is not yet known what the impact will be of so many of the population self-isolating and the concomitant pressure on broadband bandwidth”.
Tanfield’s barristers and practice managers are variously equipped with some or all of Microsoft Teams, Skype and Zoom. These technologies enable flexible conferences to take place with multiple parties, and they enable meaningful and effective oral advocacy at court. In the next few weeks the courts will have adapted to this technological revolution, and whatever happens with social distancing, the trail has been blazed for a more flexible and nimble approach to court hearings.
This short article has only scratched the surface of the implications of remote hearings for courts. How will the recording of hearings (currently an offence) be regulated? Are there any restrictions in law on where courts can sit? How will judges take oaths? Could a court be entirely remote? Is eBundling to remain the norm? Is transparency still possible with remote hearings?
The progress of the COVID-19 virus has provided a catalyst for a revolution in the conduct of court proceedings. Its effects on society have been, and will continue to be, profound, bringing into sharp focus the need to maintain the rule of law, and an effective, accessible and transparent system of courts and tribunals.
We at Tanfield Chambers are doing our utmost to support the courts and the judiciary in maintaining the smooth, fair and effective administration of justice.
[i] Mr Justice MacDonald, “The Remote Access Family Court”, Version 1, 23 March 2020, § 6.1
[ii] Mr Justice MacDonald, “The Remote Access Family Court”, Version 1, 23 March 2020, § 6.1
[iii] Mr Justice MacDonald, “The Remote Access Family Court”, Version 1, 23 March 2020, § 2.2 (b)
[iv] Mr Justice MacDonald, “The Remote Access Family Court”, Version 1, 23 March 2020, § 7.11
[v] Mr Justice MacDonald, “The Remote Access Family Court”, Version 1, 23 March 2020, § 8.1 – 8.2
[vi] Mr Justice MacDonald, “The Remote Access Family Court”, Version 1, 23 March 2020, § 5.5