By Veronika Maresova – 25th June 2020
Since the COVID-19 pandemic, there have been dramatic changes affecting our daily lives. Virtual justice is now a norm. With the digital transformation, not so many buildings will be needed, less travel will be required, saving us more time. Surely, conducting hearings in the virtual world can only be a bonus?
Virtual hearings are not a novelty. Telephone hearings in civil courts were introduced in 1999 as part of the Civil Justice Reforms following Lord Woolf’s Review in England and Wales. More recently, through the reform justice programme run by HMCTS – with some courts being better equipped for virtual hearings than others. And there has been a number of studies of virtual hearings (including studies conducted by HMCTS (2017& 2018), the Public Law Project Judicial Review in the Administrative Court during COVID-19 Pandemic and the research by Dr Natalie Byrom (Director of Research at The Legal Education Foundation) published by The Civil Justice Council.
Some of the emerging concerns have been:
- Some lawyers have been unable to access relevant documents/files from the court due to a lack of access to appropriate technology/systems.
- Participants in the court hearings are unable to read non-verbal clues and body- or facial reactions (e.g. being unable to see if someone gets upset during the hearing).
- Participants may find it difficult to engage during the hearing, especially litigants in person may be more apprehensive about speaking.
- Technical difficulties – having access to the right equipment and stable wifi.
- Having access to a private area where the participants can be uninterrupted during the hearing.
- The remote hearings take longer.
- It can be problematic to follow where more parties are involved.
- There may be a feeling of disconnection due to difficulties in communication during the hearing.
- Participants can be distracted by other web sites or online activities.
- It is more difficult for participants to show empathy.
Given my current circumstances – since my final project submission for my Graduate Diploma in Law (hoping to start the Legal Practice Course in September 2020) – I have been looking for opportunities to advance my legal knowledge and experience. Also, given my professional background in adult social care, NHS, and DoLS (the Deprivation of Liberty Safeguards), I was curious about witnessing professional engagement with capacity, best interests and the Deprivation of Liberty Safeguards from another perspective. I have attended court hearings previously, but wanted to find out what the virtual hearing is like from first-hand experience.
The virtual world of post-COVID-19 took me all the way from Kent up to the North of England. The hearing I observed was in one of the Northern regional hubs of the Court of Protection.
I was initially unsure whether trying to gain access to a hearing on the same day that it was scheduled would be successful, but everything went very smoothly. Despite my scepticism with the court hearing start-time in less than two hours, I had a response from the court administrator within half an hour. I received a copy of the Transparency Order – which I must admit I found a little confusing, as to what information about the case I would be able to share (but see Celia Kitzinger’s blog which explains everything you need to know about Transparency Orders). I was also informed that I was going to receive a call nearer the time. I was unsure whether the whole hearing was going to be over the phone or perhaps whether it was just an introduction over the phone followed by a video. There was no mention of a test call.
Unfortunately, I did not manage to access documents about the case prior to the hearing.
Whilst I was getting ready for the call, I received another email stating that there may be a delay. In anticipation of the call, I made sure that I sat in the area of the home with a minimal chance of disruption and that my phone was charged and working fine.
I was wondering what sort of experience it was going to be. One of the horror hearings you hear about? Will the judge be sympathetic? Will there be unpredictable technical faults? Will the call get cut off? Will there be background noises? Will I hear and understand what people are saying?
The phone rang. It was the judge herself: ‘Are you Miss Maresova?’ The judge gave me a comprehensive introduction to the case, introduced parties, and explained how the hearing was going to proceed.
After the introduction, one of the lawyers provided a background to the case. It felt somewhat strange to be ‘in court’ without any travel or with my poor sense of orientation finding my way around a ‘strange’ building. As a speaker of English as a second language, I was a little apprehensive about relying on audio-only. To my relief, the voices were clear with no disruptions in the background or technical faults. There was no confusion about who was speaking. The judge made it clear who was talking at each point.
The hearing concerned where P should live – so it was about “varying or terminating a standard authorisation pursuant to the Deprivation of Liberty Safeguards” (as it said in the listings)
P was currently living in a specialised placement with some possibly excessive restrictions in place. He had a rare condition that required fluid restrictions. There was a discussion about how the restrictions could be loosened. But new restrictions were also proposed – monitoring of blood and urine. However, before deciding whether the current restrictions are necessary, further information from the GP on appropriate medical care and from the placement would be required.
After discussion about potential dates for the next hearing, the judge offered me access to the documents. Although I declined the opportunity at the hearing, later I emailed the court administrator requesting access. I had a response back almost immediately.
Despite the current restrictions, it is imperative that justice continues to be served and is open. Although the virtual justice system brings some benefits, it compounds some of the barriers that are already in the system. However, it is evident that that virtual courts will continue in some form beyond the pandemic.
Based on my experience as a public observer what would I improve?
Having access to the documents relating to the case, a test call and the use of a video rather than audio would be the preferred option. However, on the whole, it was a positive experience. I was grateful for the introduction to virtual justice.
Veronika Maresova aspires to become a solicitor. She tweets @VeronikaMareso1
 Lord Woolf’s review exposed the justice system in crisis. He made recommendations for improving the speed, accessibility and cost efficiency of the Civil Justice System.