Report on use of remote hearings raises concerns

Despite challenges, over 60 per cent of legal representatives said they would prefer to continue to work from home post-pandemic

HM Courts and Tribunals Service (HMCTS) has published a report evaluating the use of remote hearings during the covid-19 pandemic, which has raised concerns about the use of remote hearings in certain circumstances.

Over 8,000 public users, members of the judiciary, legal representatives, HMCTS staff, intermediaries/support professionals and observers were surveyed. 180 also took part in in-depth interviews.

The report revealed that jurisdiction heavily influenced the likelihood of attending a hearing remotely; most Crown and magistrates’ court users attended in-person (87 per cent and 91 per cent respectively), while most social security and child support and family court users attended remotely (96 per cent and 86 per cent respectively).

There were higher rates of litigants in-person among public users attending remote hearings (65 per cent, compared with 34 per cent of those that attended in-person).

79 per cent of public users attended remote hearings from home and – where represented – were rarely co-located with their representative, which the report said made it harder to communicate during the hearing.

Some legal representatives and support professionals reported challenges with building client rapport remotely. For those with clients in custody, pre-hearing communication was reliant on the client being provided with either a phone or being brought to a booth and for the connection to the legal representative to be made.

Legal representatives also commented that informal out of court conversations with the other side did not occur naturally with remote hearings and, as such, the potential to resolve issues ahead of the hearing was reduced.

The report also investigated how well the technology was working. One in five public users experienced issues; those that attended remote hearings by video were more likely to experience issues than those who attended by audio (30 per cent compared with 15 per cent).

The main issues for all groups were reported as being inconsistent audio quality and being disconnected, which made some hearings take longer and made it more difficult for court users to contribute and follow what was happening. However, despite these issues, the report said there were few court adjournments due to technology issues reported across all groups.

Four-fifths of legal representatives stated they preferred to work from home during the pandemic and three-fifths said they would prefer to continue to work from home post-pandemic.

Law Society president, I. Stephanie Boyce, commented on the findings: “Remote hearings have been an invaluable tool in keeping the justice system operating during the pandemic.

“However, the evaluation of their use by HMCTS reflects concerns we have raised that in some scenarios they are unsuitable and can have a serious impact on access to justice and may not be suitable for vulnerable people.

“Our own research found that only 16 per cent of solicitors felt vulnerable clients were able to participate effectively in remote hearings, and only 45 per cent were confident that non-vulnerable clients could do so”.

Boyce added: “It is particularly concerning to see that around three in five judicial respondents and just over half of legal representatives responding to HMCTS felt that remote hearings impacted their health and well-being, given that we know legal professionals are overstretched and under immense pressure.

“The suggestion that remote hearings take longer than in-person hearings should be considered carefully as efforts continue to tackle the backlog and ensure efficient justice.

“The report makes the important point that the perceived safety benefits of being able to remain at home may have driven up satisfaction with remote hearings. Given that Plan B measures are being introduced to combat a rise in Covid cases, we hope there will be an accommodating approach from the judiciary to our members and other court users appearing remotely during this period”.