Statement of the Four Bars on the administration of justice post-pandemic

04 May

Before the pandemic, the usual way in which hearings were conducted across all courts and tribunals was in person. In order to deliver justice in lockdown, it quickly became vital to move to remote hearings. From that experience, the four Bars recognise that the justice system has undergone changes that are, and should be, here to stay. In particular, the use of remote hearings to deal with short or uncontroversial procedural business is unobjectionable, and indeed to be welcomed in many cases, even after the current crisis has 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. There are, in our mutual experience, multiple and multi-faceted disadvantages with such hearings, when compared to the usual, in-person hearings that have delivered justice for centuries. Amongst the various factors that we consider relevant in coming to that view, the following are worth highlighting:

  • 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, our unanimous stance is as follows:

  1. We are supportive of the continuing use of technology in our courts.
  2. We are supportive of remote hearings becoming the default position for short or uncontroversial procedural business. We recognise that the appropriate use of remote hearings will be vital in tackling accrued backlogs in each of our 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.