Cheshire East Council

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Bar organisations warn against decisions to employ "markedly inferior" remote hearings more widely once Covid-19 has passed

There are multiple and multi-faceted disadvantages with remote hearings when compared to usual, in-person hearings that have delivered justice “for centuries”, the four Bars for the UK and Ireland have warned.

In a joint statement the Faculty of Advocates of Scotland, the Bar Council of England and Wales, the Bar of Ireland and the Bar Council of Northern Ireland said they recognised that the justice system had undergone changes during the pandemic that are, and should be, here to stay.

They suggested that in particular, the use of remote hearings to deal with short or uncontroversial procedural business was unobjectionable, “and indeed to be welcomed in many cases”, even after the current crisis had passed.

“However, we all take the view that careful consideration is needed before any decision is taken to employ remote hearings more widely, once COVID-19 is behind us,” the four Bars said.

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Amongst the various factors that they considered relevant in coming to that view, they highlighted:

  • "Experience shows that judicial interaction is different and less satisfactory in remote hearings from that experienced in “real life” with the result that hearings can be less effective at isolating issues and allowing argument to be developed.
  • The management of witnesses, especially in cross-examination, is far less satisfactory when conducted remotely and we are concerned that it may have an adverse impact on the quality of the evidence given.
  • We are concerned that remote hearings present very considerable challenges to effective advocacy in cases involving evidence or complex narrative submissions. The very real, but often intangible, benefits of the human interaction inherent in in-person hearings cannot be ignored. The universal sentiment across the four Bars is that remote hearings deliver a markedly inferior experience.
  • The diverse and complex needs of our clients must be protected and their participation must be safeguarded. By its nature, a remote and automated system will only degrade the valuable human interaction that should be at the heart of meaningful and open access to justice.
  • There are also wider concerns arising from remote working. We have all found that the training experience has been markedly affected by the predominance of remote working, and the accompanying isolation – in marked contrast to the usual collegiality of our respective Bars – is also having a negative impact on wellbeing."

For these reasons, the four Bars’ unanimous stance was as follows:

  1. They are supportive of the continuing use of technology in the courts.
  2. They are supportive of remote hearings becoming the default position for short or uncontroversial procedural business. They recognise that the appropriate use of remote hearings will be vital in tackling accrued backlogs in each of the jurisdictions.
  3. However, for any hearing that is potentially dispositive of all or part of a case, the default position should be “in-person” hearings. “Remote hearings should be available as an option in such cases where all parties (including the court) agree that proceeding in that way would be appropriate.”

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